[Federal Register Volume 75, Number 131 (Friday, July 9, 2010)]
[Rules and Regulations]
[Pages 39443-39445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16745]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 75, No. 131 / Friday, July 9, 2010 / Rules
and Regulations
[[Page 39443]]
DEPARTMENT OF ENERGY
2 CFR Part 902
10 CFR Part 607
RIN 1991-AB93
Implementation of OMB Guidance on Drug-Free Workplace
Requirements
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) is removing its regulation
implementing the Governmentwide common rule on drug-free workplace
requirements for financial assistance, currently located within Part
607 of Title 10 of the Code of Federal Regulations (CFR), and issuing a
new regulation to adopt the Office of Management and Budget (OMB)
guidance at 2 CFR part 182. This regulatory action implements the OMB's
initiative to streamline and consolidate into one title of the CFR all
federal regulations on drug-free workplace requirements for financial
assistance. These changes constitute an administrative simplification
that make no substantive change in DOE policy or procedures for drug-
free workplace.
DATES: This final rule is effective on September 7, 2010 without
further action. Submit comments by August 9, 2010 on any unintended
changes this action makes in DOE policies and procedures for drug-free
workplace. All comments on unintended changes will be considered and,
if warranted, DOE will revise the rule.
ADDRESSES: Written comments should be sent to the following: Denise
Clarke, Procurement Analyst, MA-612/L'Enfant Plaza Building, U.S.
Department of Energy, 1000 Independence Avenue, SW., Washington, DC
20585-1615, [email protected].
E-Mail: Please include ``Implementation of OMB Guidance on Drug-
Free Workplace Requirements'' in the subject line of your e-mail
message. Please include your name, title, organization, postal address,
telephone number, and e-mail address in the text of the message.
Mail: Due to potential delays in DOE's receipt and processing of
mail sent through the U.S. Postal Service, we encourage respondents to
submit comments electronically to ensure timely receipt.
FOR FURTHER INFORMATION CONTACT: Denise Clarke at the above address, or
by telephone at (202) 287-1748.
SUPPLEMENTARY INFORMATION:
Background
The Drug-Free Workplace Act of 1988 [Pub. L. 100-690, Title V,
Subtitle D; 41 U.S.C. 701, et seq.] was enacted as a part of omnibus
drug legislation on November 18, 1988. Federal agencies issued an
interim final common rule to implement the act as it applied to grants
[54 FR 4946, January 31, 1989]. The rule was a subpart of the
Governmentwide common rule on nonprocurement suspension and debarment.
The agencies issued a final common rule after consideration of public
comments [55 FR 21681, May 25, 1990].
The agencies proposed an update to the drug-free workplace common
rule in 2002 [67 FR 3266, January 23, 2002] and finalized it in 2003
[68 FR 66534, November 26, 2003]. The updated common rule was redrafted
in plain language and adopted as a separate part, independent from the
common rule on nonprocurement suspension and debarment. Based on an
amendment to the drug-free workplace requirements in 41 U.S.C. 702
[Pub. L. 105-85, div. A, title VIII, Section 809, Nov. 18, 1997, 111
Stat. 1838], the update also allowed multiple enforcement options from
which agencies could select, rather than requiring use of a
certification in all cases.
When it established Title 2 of the CFR as the new central location
for OMB guidance and agency implementing regulations concerning grants
and agreements [69 FR 26276, May 11, 2004], OMB announced its intention
to replace common rules with OMB guidance that agencies could adopt in
brief regulations. OMB began that process by proposing [70 FR 51863,
August 31, 2005] and finalizing [71 FR 66431, November 15, 2006]
Governmentwide guidance on nonprocurement suspension and debarment in 2
CFR part 180.
As the next step in that process, OMB proposed for comment [73 FR
55776, September 26, 2008] and finalized [74 FR 28149, June 15, 2009]
Governmentwide guidance with policies and procedures to implement drug-
free workplace requirements for financial assistance. The guidance
requires each agency to replace the common rule on drug-free workplace
requirements that the agency previously issued in its own CFR title
with a brief regulation in 2 CFR adopting the Governmentwide policies
and procedures. One advantage of this approach is that it reduces the
total volume of drug-free workplace regulations. A second advantage is
that it co-locates OMB's guidance and all of the agencies' implementing
regulations in 2 CFR.
The Current Regulatory Actions
As the OMB guidance requires, DOE is taking two regulatory actions.
First, we are removing the drug-free workplace common rule from 10 CFR
part 607. Second, to replace the common rule, we are issuing a brief
regulation in 2 CFR part 902 to adopt the Governmentwide policies and
procedures in the OMB guidance.
Invitation to Comment
Taken together, these regulatory actions are solely an
administrative simplification and are not intended to make any
substantive change in policies or procedures. In soliciting comments on
these actions, we therefore are not seeking to revisit substantive
issues that were resolved during the development of the final common
rule in 2003. We are inviting comments specifically on any unintended
changes in substantive content that the new part in 2 CFR would make
relative to the common rule at 10 CFR part 607.
Administrative Procedure Act
Under the Administrative Procedure Act (5 U.S.C. 553), agencies
generally propose a regulation and offer interested parties the
opportunity to comment before it becomes effective. However, as
described in the ``Background'' section of this preamble, the policies
and procedures in this regulation have been proposed for comment two
times--one time by federal agencies as a common rule in 2002 and a
second time by OMB
[[Page 39444]]
as guidance in 2008--and adopted each time after resolution of the
comments received.
This direct final rule is solely an administrative simplification
that would make no substantive change in DOE policy or procedures for
drug-free workplace. We therefore believe that the rule is
noncontroversial and do not expect to receive adverse comments,
although we are inviting comments on any unintended substantive change
this rule makes.
Accordingly, we find that the solicitation of public comments on
this direct final rule is unnecessary and that ``good cause'' exists
under 5 U.S.C. 553(b)(B) and 553(d) to make this rule effective on
September 7, 2010 without further action, unless we receive adverse
comment by August 9, 2010. If any comment on unintended changes is
received, it will be considered and, if warranted, we will publish a
timely revision of the rule.
Executive Order 12866
OMB has determined this rule to be not significant for purposes of
E.O. 12866.
Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))
This regulatory action will not have a significant adverse impact
on a substantial number of small entities.
Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)
This regulatory action does not contain a Federal mandate that will
result in the expenditure by State, local, and tribal governments, in
aggregate, or by the private sector of $100 million or more in any one
year.
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This regulatory action will not impose any additional reporting or
recordkeeping requirements under the Paperwork Reduction Act.
Federalism (Executive Order 13132)
This regulatory action does not have Federalism implications, as
set forth in Executive Order 13132. It will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
Approval of the Office of the Secretary of Energy
The Office of the Secretary has approved the issuance of this rule.
List of Subjects
2 CFR Part 902
Administrative practice and procedure, Drug abuse, Grant programs,
Loan programs, Reporting and recordkeeping requirements.
10 CFR Part 607
Administrative practice and procedure, Drug abuse, Grant programs,
Loan programs, Reporting and recordkeeping requirements.
Issued in Washington, DC on July 2, 2010.
Patrick M. Ferraro,
Acting Director, Office of Procurement and Assistance Management,
Office of Management, Department of Energy.
Joseph F. Waddell,
Director, Office of Acquisition and Supply Management, National Nuclear
Security Administration.
Accordingly, for the reasons set forth in the preamble, DOE amends
the Code of Federal Regulations, Title 2, Subtitle B, chapter IX, and
Title 10, chapter II, part 607, as follows:
Title 2--Grants and Agreements
0
1. Add part 902 in Subtitle B, Chapter IX, to read as follows:
PART 902--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL
ASSISTANCE)
Sec.
902.10 What does this part do?
902.20 Does this part apply to me?
902.30 What policies and procedures must I follow?
Subpart A--Purpose and Coverage [Reserved.]
Subpart B--Requirements for Recipients Other Than Individuals
902.225 Whom in the DOE does a recipient other than an individual
notify about a criminal drug conviction?
Subpart C--Requirements for Recipients Who Are Individuals
902.300 Whom in the DOE does a recipient who is an individual notify
about a criminal drug conviction?
Subpart D--Responsibilities of Agency Awarding Officials
902.400 What method do I use as an agency awarding official to
obtain a recipient's agreement to comply with the OMB guidance?
Subpart E--Violations of this Part and Consequences
902.500 Who in the DOE determines that a recipient other than an
individual violated the requirements of this part?
902.505 Who in the DOE determines that a recipient who is an
individual violated the requirements of this part?
Subpart F--Definitions
902.605 Award (DOE supplement to Governmentwide definition at 2 CFR
182.605).
902.645 Federal agency or agency.
Authority: 41 U.S.C. 701; 42 U.S.C. 7101 et seq.; 50 U.S.C.
2401 et seq.
Sec. 902.10 What does this part do?
This part requires that the award and administration of DOE grants
and cooperative agreements comply with Office of Management and Budget
(OMB) guidance implementing the portion of the Drug-Free Workplace Act
of 1988 (41 U.S.C. 701-707, as amended, hereafter referred to as ``the
Act'') that applies to grants. It thereby--
(a) Gives regulatory effect to the OMB guidance (Subparts A through
F of 2 CFR part 182) for the DOE's grants and cooperative agreements;
and
(b) Establishes DOE policies and procedures for compliance with the
Act that are the same as those of other Federal agencies, in
conformance with the requirement in 41 U.S.C. 705 for Governmentwide
implementing regulations.
Sec. 902.20 Does this part apply to me?
This part and, through this part, pertinent portions of the OMB
guidance in Subparts A through F of 2 CFR part 182 (see table at 2 CFR
182.115(b)) apply to you if you are a--
(a) Recipient of a DOE grant or cooperative agreement; or
(b) DOE awarding official.
Sec. 902.30 What policies and procedures must I follow?
(a) General. You must follow the policies and procedures specified
in applicable sections of the OMB guidance in Subparts A through F of 2
CFR part 182, as implemented by this part.
(b) Specific sections of OMB guidance that this part supplements.
In implementing the OMB guidance in 2 CFR part 182, this part
supplements four sections of the guidance, as shown in the following
table. For each of those sections, you must follow the policies and
procedures in the OMB guidance, as supplemented by this part.
[[Page 39445]]
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Section in
this part
Section of OMB guidance where What the supplementation clarifies
supplemented
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(1) 2 CFR 182.225(a).......................... Sec. 902.225 Whom in the DOE a recipient other than an
individual must notify if an employee is
convicted for a violation of a criminal drug
statute in the workplace.
(2) 2 CFR 182.300(b).......................... Sec. 902.300 Whom in the DOE a recipient who is an individual
must notify if he or she is convicted of a
criminal drug offense resulting from a
violation occurring during the conduct of any
award activity.
(3) 2 CFR 182.500............................. Sec. 902.500 Who in the DOE is authorized to determine that a
recipient other than an individual is in
violation of the requirements of 2 CFR part
182, as implemented by this part.
(4) 2 CFR 182.505............................. Sec. 902.505 Who in the DOE is authorized to determine that a
recipient who is an individual is in violation
of the requirements of 2 CFR part 182, as
implemented by this part.
(5) 2 CFR 182.605............................. Sec. 902.605 Definition of ``Award''.
(6) 2 CFR 182.645............................. Sec. 902.645 Definition of ``Federal agency or agency''.
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(c) Sections of the OMB guidance that this part does not
supplement. For any section of OMB guidance in Subparts A through F of
2 CFR part 182 that is not listed in paragraph (b) of this section, DOE
policies and procedures are the same as those in the OMB guidance.
Subpart A--Purpose and Coverage [Reserved]
Subpart B--Requirements for Recipients Other Than Individuals
Sec. 902.225 Whom in the DOE does a recipient other than an
individual notify about a criminal drug conviction?
A recipient other than an individual that is required under 2 CFR
182.225(a) to notify Federal agencies about an employee's conviction
for a criminal drug offense must notify each DOE office from which it
currently has an award.
Subpart C--Requirements for Recipients Who Are Individuals
Sec. 902.300 Whom in the DOE does a recipient who is an individual
notify about a criminal drug conviction?
A recipient who is an individual and is required under 2 CFR
182.300(b) to notify Federal agencies about a conviction for a criminal
drug offense must notify each DOE office from which it currently has an
award.
Subpart D--Responsibilities of Agency Awarding Officials
Sec. 902.400 What method do I use as an agency awarding official to
obtain a recipient's agreement to comply with the OMB guidance?
To obtain a recipient's agreement to comply with applicable
requirements in the OMB guidance at 2 CFR part 182, you must include
the following term or condition in the award:
Drug-free workplace. You as the recipient must comply with drug-
free workplace requirements in Subpart B (or Subpart C, if the
recipient is an individual) of Part 902, which adopts the
Governmentwide implementation (2 CFR part 182) of sec. 5152-5158 of the
Drug-Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D;
41 U.S.C. 701-707).
Subpart E--Violations of this Part and Consequences
Sec. 902.500 Who in the DOE determines that a recipient other than an
individual violated the requirements of this part?
The Secretary of the Department of Energy and the Secretary's
designee or designees are authorized to make the determinations under 2
CFR 182.500 for DOE, including NNSA.
Sec. 902.505 Who in the DOE determines that a recipient who is an
individual violated the requirements of this part?
The Secretary of the Department of Energy and the Secretary's
designee or designees are authorized to make the determinations under 2
CFR 182.500 for DOE, including NNSA.
Subpart F--Definitions
Sec. 902.605 Award (DOE supplement to Governmentwide definition at 2
CFR 182.605).
The term award also includes Technology Investment Agreements
(TIA). A TIA is a special type of assistance instrument used to
increase the involvement of commercial firms in the Department's RD&D
programs. A TIA may be either a type of cooperative agreement or a type
of assistance transaction other than a cooperative agreement, depending
on the intellectual property provisions. A TIA may be either
expenditure based or fixed support.
Sec. 902.645 Federal agency or agency.
Department of Energy means the U.S. Department of Energy (DOE),
including the National Nuclear Security Administration (NNSA).
Title 10--Energy
CHAPTER II--DEPARTMENT OF ENERGY
PART 607--[REMOVED]
0
2. Under the authority of 5 U.S.C. 301, remove part 607.
[FR Doc. 2010-16745 Filed 7-8-10; 8:45 am]
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