[Federal Register Volume 75, Number 167 (Monday, August 30, 2010)]
[Rules and Regulations]
[Pages 52857-52859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21600]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 75, No. 167 / Monday, August 30, 2010 / Rules
and Regulations
[[Page 52857]]
NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES
2 CFR Part 3373
45 CFR Part 1173
RIN 3136-AA30
National Endowment for the Humanities Implementation of OMB
Guidance on Drug-Free Workplace Requirements
AGENCY: National Endowment for the Humanities, National Foundation on
the Arts and the Humanities.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Endowment for the Humanities (NEH) is removing
its regulation implementing the Governmentwide common rule on drug-free
workplace requirements for financial assistance, currently located
within Part 1173 of Title 45 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 would make no substantive change in
NEH's policy or procedures for drug-free workplace.
DATES: This final rule is effective on October 29, 2010 without further
action. Submit comments by September 29, 2010 on any unintended changes
this action makes in NEH policies and procedures for drug-free
workplace. All comments on unintended changes will be considered and,
if warranted, NEH will revise the rule.
ADDRESSES: You may submit comments by either one of the following
methods: e-mail: [email protected], or by mail: Susan Daisey, Director,
Office of Grant Management, National Endowment for the Humanities, 1100
Pennsylvania Ave., NW., Room 311, Washington, DC 20506.
FOR FURTHER INFORMATION CONTACT: Susan G. Daisey at 202-606-8494 or e-
mail her at [email protected].
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, Sec. 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 collocates OMB's guidance and all of the agencies' implementing
regulations in 2 CFR.
The Current Regulatory Actions
As the OMB guidance requires, NEH is taking two regulatory actions.
First, we are removing the drug-free workplace common rule from 45 CFR
part 1173. Second, to replace the common rule, we are issuing a brief
regulation in 2 CFR part 3373 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 45 CFR part 1173.
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 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 NEH
[[Page 52858]]
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
October 29, 2010 without further action, unless we receive adverse
comment by September 29, 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.
List of Subjects
2 CFR Part 3373
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
45 CFR Part 1173
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
0
Accordingly, for the reasons set forth in the preamble, and under the
authority of 5 U.S.C. 301, the NEH amends the Code of Federal
Regulations, Title 2, Subtitle B, chapter XXIII, and Title 45 chapter
11, part 1173, as follows:
Title 2--Grants and Agreements
0
1. Add part 3373 in Subtitle B, Chapter XXIII, to read as follows:
PART 3373--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL
ASSISTANCE)
Sec.
3373.10 What does this part do?
3373.20 Does this part apply to me?
3373.30 What policies and procedures must I follow?
Subpart A--Purpose and Coverage [Reserved]
Subpart B--Requirements for Recipients Other Than Individuals
3373.225 Whom in the NEH does a recipient other than an individual
notify about a criminal drug conviction?
Subpart C--Requirements for Recipients Who Are Individuals
3373.300 Whom in the NEH does a recipient who is an individual
notify about a criminal drug conviction?
Subpart D--Responsibilities of Agency Awarding Officials
3373.400 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
3373.500 Who in the NEH determines that a recipient other than an
individual violated the requirements of this part?
3373.505 Who in the NEH determines that a recipient who is an
individual violated the requirements of this part?
Subpart F--Definitions [Reserved]
Authority: 41 U.S.C. 701-707.
Sec. 3373.10 What does this part do?
This part requires that the award and administration of NEH 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 NEH's grants and cooperative agreements;
and
(b) Establishes NEH 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. 3373.20 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 NEH grant or cooperative agreement; or
(b) NEH awarding official.
Sec. 3373.30 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.
----------------------------------------------------------------------------------------------------------------
Section in this
Section of OMB guidance part where What the supplementation clarifies
supplemented
----------------------------------------------------------------------------------------------------------------
(1) 2 CFR 182.225(a)......................... Sec. 3373.225 Whom in the NEH 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. 3373.300 Whom in the NEH 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.
[[Page 52859]]
(3) 2 CFR 182.500............................ Sec. 3373.500 Who in the NEH 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. 3373.505 Who in the NEH 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.
----------------------------------------------------------------------------------------------------------------
(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, NEH
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. 3373.225 Whom in the NEH 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 the Director, Office of Grant
Management, NEH.
Subpart C--Requirements for Recipients Who Are Individuals
Sec. 3373.300 Whom in the NEH 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 the Director, Office of Grant Management, NEH.
Subpart D--Responsibilities of Agency Awarding Officials
Sec. 3373.400 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 2 CFR Part 3373, 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. 3373.500 Who in the NEH determines that a recipient other than
an individual violated the requirements of this part?
The NEH General Counsel is the agency official authorized to make
the determination under 2 CFR 182.500.
Sec. 3373.505 Who in the NEH determines that a recipient who is an
individual violated the requirements of this part?
The NEH General Counsel is the agency official authorized to make
the determination under 2 CFR 182.505.
Subpart F--Definitions [Reserved]
Title 45--Public Welfare
Chapter XI--National Foundation on the Arts and the Humanities
0
2. Remove Part 1173.
Michael P. McDonald,
General Counsel.
[FR Doc. 2010-21600 Filed 8-27-10; 8:45 am]
BILLING CODE 7536-01-P