[Federal Register Volume 76, Number 37 (Thursday, February 24, 2011)]
[Rules and Regulations]
[Pages 10205-10209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3217]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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Federal Register / Vol. 76, No. 37 / Thursday, February 24, 2011 /
Rules and Regulations
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DEPARTMENT OF HOMELAND SECURITY
2 CFR Part 3001
Federal Emergency Management Agency
44 CFR Part 17
[Docket No. DHS-2010-0028]
RIN 1601-AA62
Department of Homeland Security Implementation of OMB Guidance on
Drug-Free Workplace Requirements
AGENCY: Department of Homeland Security (DHS).
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is issuing a new
regulation to adopt the Office of Management and Budget (OMB) guidance
codified at 2 CFR part 182. This new part is the Department's
implementation of OMB's guidance and is consistent with OMB's
initiative to streamline and consolidate all Federal regulations on
drug-free workplace requirements for financial assistance into one
title of the CFR. In doing so, the Department is also removing
regulations implementing the Government-wide common rule on drug-free
workplace requirements for financial assistance, currently located
within Part 17 of Title 44 of the Code of Federal Regulations (CFR).
DATES: This final rule is effective on March 28, 2011 without further
notice. Submit comments by March 28, 2011 on any unintended changes
this action makes in DHS policies and procedures for drug-free
workplaces. All comments or unintended changes will be considered and,
if warranted, DHS will revise the rule.
ADDRESSES: You may submit comments, identified by the docket number to
this rulemaking, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: [TBA], Department of Homeland Security, 245 Murray
Lane, SW., Bldg. 410-Room 3514-11, Washington, DC 20528-0001.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Ms. Cara Whitehead, Office of the Chief Financial Officer,
Financial Assistance Policy & Oversight, telephone 202-447-0338.
SUPPLEMENTARY INFORMATION:
Public Participation and Request for Comments
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 44 CFR part 17. All comments received will be
posted, without change, to http://www.regulations.gov and will include
any personal information you have provided.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (DHS-2010-0028), indicate the specific section of this
document to which each comment applies, and give the reason for each
comment. We recommend that you include your name and a mailing address,
an e-mail address, or a phone number in the body of your document so
that we can contact you if we have questions regarding your submission.
You may submit your comments and material by electronic means or mail
at the address under ADDRESSES; but please submit your comment and
material by only one means. If you submit them by mail or delivery,
submit them in an unbound format, no larger than 8\1/2\ by 11 inches,
suitable for copying and electronic filing. We will consider all
comments and material received during the comment period. We may change
this rule in view of them.
B. Viewing Documents
To view documents mentioned in this preamble as being available in
the docket, go to http://www.regulations.gov at any time. Enter the
docket number for this rulemaking (DHS-2010-0028) in the Search box,
and click ``Go>>.'' Individuals without internet access can
make alternate arrangement for viewing comments and documents related
to this rulemaking by contacting DHS at the FOR FURTHER INFORMATION
CONTACT information above.
Table of Contents for Preamble
I. Abbreviations
II. Background and Purpose
A. OMB Guidance for Drug-Free Workplace Requirements
B. Regulatory History
III. Discussion of the Rule
A. Differences Between OMB Guidance and the Common Rule
B. DHS Additions to the OMB Guidance
IV. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Unfunded Mandates Act of 1995
D. Collection of Information
E. Federalism
F. Environmental Analysis
I. Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
FEMA Federal Emergency Management Agency
OMB Office of Management and Budget
U.S.C. United States Code
II. Background and Purpose
A. OMB Guidance for Drug-Free Workplace Requirements
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
Government-wide 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
[[Page 10206]]
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.
Like many other agencies, the Federal Emergency Management Agency
(FEMA) adopted the common rule in 1990 (55 FR 21702, May 25, 1990).
FEMA participated in the 2002 proposal to revise the drug-free
workplace common rule; as a result of FEMA's transfer to the newly-
established DHS in 2003; however, neither FEMA nor DHS participated in
the 2003 multi-agency finalization of that revision. Since its creation
in 2003, DHS has been using the FEMA common rule to administer drug-
free workplace requirements.
When OMB 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)
Government-wide 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)
Government-wide 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, which the agency previously issued in its own CFR title,
with a brief regulation in Title 2 of the CFR adopting the Government-
wide 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 Title 2 of the CFR.
B. Regulatory History
Under 5 U.S.C. 553(a), agencies need not publish an NPRM in the
Federal Register if the subject matter concerns grants, loans,
benefits, or contracts. This rule concerns grants and cooperative
agreements, and therefore does not require an NPRM.
In addition, DHS finds that good cause exists for not publishing an
NPRM, because publication would be unnecessary. As described in the
``Background'' section of this preamble, the policies and procedures in
this regulation have twice been proposed for comment--once 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. In addition, this final rule is an administrative
clarification that would make no substantive change to existing DHS
policy for drug-free workplaces. For these reasons, under 5 U.S.C.
553(b)(B) we find that public notice and comment are unnecessary.
III. Discussion of the Rule
As the OMB guidance directs, DHS is taking two regulatory actions.
First, we are removing the drug-free workplace common rule located at
44 CFR part 17. Second, to replace the common rule, we are issuing a
brief regulation in 2 CFR part 3001 to adopt the Government-wide
policies and procedures found in the OMB guidance. As directed by the
OMB guidance, this rule adds to the adopted guidance certain additional
information specific to DHS.
A. Differences Between OMB Guidance and the Common Rule
This DHS adoption of the OMB guidance, with additional information
provided in 2 CFR part 3001, replaces the existing drug-free workplace
common rule located at 44 CFR part 17. Adopting the OMB guidance in
place of the common rule will not substantively change the drug-free
workplace requirements placed on award recipients.
The OMB guidance uses slightly different terminology and
organization. For example, as compared to the common rule, OMB's text
replaces most instances of the terms ``grant'' and ``grantee'' with the
terms ``award'' and ``recipient,'' respectively. The OMB guidance
defines the new terms ``award'' and ``grant'' more narrowly to mean a
type of award. The OMB guidance also defines ``recipient'' using
language substantively similar to the common rule's definition of
``person''; in the OMB guidance, ``person'' is no longer a defined
term. The OMB guidance reorganizes the drug-free workplace
requirements, separating and clearly labeling the requirements for
recipients who are individuals, recipients other than individuals, and
Federal agencies. Adopting these Government-wide terms and the new
organizational structure will make DHS drug-free workplace requirements
clearer and easier to use.
The most notable change from the common rule is the removal of
procedures by which a recipient ``certifies'' to the agency that it
will comply with drug-free workplace requirements. Recipients are still
required to comply with drug-free workplace requirements, but the
requirement appears in regulation and in the terms and conditions of
the award, rather than in a separate certification. As a result of this
change, the common rule's provisions regarding certification will not
appear in this rule.
B. DHS Additions to the OMB Guidance
The OMB guidance directs agencies to state whether the agency has a
central point to which recipients may send the notification of a
conviction, and indicate which agency official is authorized to
determine whether recipients have violated drug-free workplace
requirements. Accordingly, in adopting the OMB guidance we have added
language at 2 CFR 3001.225 and 3001.300 indicating that a recipient
required to report a conviction for a criminal drug offense should
notify the DHS Office of Inspector General and each DHS office from
which the recipient currently has an award. Similarly, we have added
language at Sec. Sec. 3001.500 and 3001.505 indicating that the
Secretary of Homeland Security or his or her official designee is
authorized to determine that a recipient is in violation of the
requirements of 2 CFR part 182 as implemented by this rule.
The OMB guidance at 2 CFR 182.510 discusses the consequences of a
violation. We added 2 CFR 3001.510 to clarify that DHS will take one or
more of the listed actions, and that any suspension or debarment of the
recipient would occur under 2 CFR part 3000 as well as 2 CFR part 180.
IV. Regulatory Analyses
A. Regulatory Planning and Review
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of that Order. The Office of Management and
Budget has not reviewed it under that Order. This action will impose no
additional costs. As explained in the Background and Purpose and
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Discussion of the Rule, this final rule is an administrative
clarification that will make no substantive change to existing DHS
policy for drug-free workplaces. This rule merely transfers existing
FEMA regulations with some minor non-substantive changes.
B. Small Entities
Section 605 of the Regulatory Flexibility Act, 5 U.S.C. 605(b), as
amended by the Small Business Regulatory Enforcement and Fairness Act
of 1996, requires agencies to review rules to determine if they have
``a significant economic impact on a substantial number of small
entities.'' A regulatory flexibility analysis is not required when a
rule is exempt from notice and comment rulemaking provided for by 5
U.S.C. 553(b). DHS has determined that this rule is exempt from notice
and comment rulemaking pursuant to 5 U.S.C. 553(a)(2) and (b)(B);
therefore, a regulatory flexibility analysis is not required for this
rule.
C. Unfunded Mandates Act of 1995
The Unfunded Mandates Act of 1995 (Pub. L. 104-4) requires agencies
to prepare several analytic statements before proposing any rule that
may result in annual expenditures of $100 million by State, local,
Indian Tribal governments, or the private sector. Because this rule
will not result in expenditures of this magnitude, a written statement
is not required.
D. Paperwork Reduction Act
This rule will not impose additional reporting or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35). Reporting and recordkeeping requirements in 2 CFR part
3001 are those required by the OMB Guidance for Drug-Free Workplace
Requirements and have already been cleared by OMB.
E. Federalism
This rule will not have substantial direct effects on the States,
on the relationship between the Federal government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Section 6 of
Executive Order 13132, DHS has determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Environmental Analysis
DHS has analyzed this rule under Department of Homeland Security
Management Directive 023-01, which guides the Department in complying
with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.
4321-4370f), and has made a determination that this action is one of a
category of actions that do not individually or cumulatively have a
significant effect on the human environment. This rule is categorically
excluded under Categorical Exclusion A3, Table 1 of Appendix A, of the
Directive.
List of Subjects
2 CFR Part 3001
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
44 CFR Part 17
Administrative practice and procedure, Drug abuse, Grant programs,
Loan programs, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, under the authority of 5
U.S.C. 301 and 41 U.S.C. 701 et seq., the Department of Homeland
Security amends the Code of Federal Regulations, Title 2, Subtitle B,
chapter XXX, and Title 44, chapter I, part 17, as follows:
TITLE 2--GRANTS AND AGREEMENTS
0
1. Add part 3001 in Subtitle B, Chapter XXX, to read as follows:
PART 3001--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL
ASSISTANCE)
Sec.
3001.10 What does this part do?
3001.20 Does this part apply to me?
3001.30 What policies and procedures must I follow?
Subpart A--Purpose and Coverage [Reserved]
Subpart B--Requirements for Recipients Other Than Individuals
3001.225 Who in DHS does a recipient other than an individual notify
about a criminal drug conviction?
Subpart C--Requirements for Recipients Who Are Individuals
3001.300 Who in DHS does a recipient who is an individual notify
about a criminal drug conviction?
Subpart D--Responsibilities of Agency Awarding Officials
3001.400 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
3001.500 Who in DHS determines that a recipient other than an
individual violated the requirements of this part?
3001.505 Who in DHS determines that a recipient who is an individual
violated the requirements of this part?
3001.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
Subpart F--Definitions
3001.605 Award.
3001.661 Reimbursable Agreement.
Authority: 5 U.S.C. 301; 41 U.S.C. 701-707; OMB Guidance for
Drug-Free Workplace Requirements, codified at 2 CFR part 182.
Sec. 3001.10 What does this part do?
This part requires that the award and administration of Department
of Homeland Security (DHS) 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, as supplemented by
this part (Subparts A through F of 2 CFR part 182) for DHS's grants and
cooperative agreements; and
(b) Establishes DHS policies and procedures, as supplemented by
this part, 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 Government-wide implementing regulations.
Sec. 3001.20 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 DHS grant or cooperative agreement; or
(b) DHS awarding official.
Sec. 3001.30 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.
This part supplements the OMB guidance in 2 CFR part 182 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 10208]]
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Section in this part where What the supplementation
Section of OMB guidance supplemented clarifies
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2 CFR 182.225(a)...................... Sec. 3001.225....................... Who in DHS 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 CFR 182.300(b)...................... Sec. 3001.300....................... Who in DHS 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.
2 CFR 182.400......................... Sec. 3001.400....................... What method do I use as an
agency awarding official to
obtain a recipient's agreement
to comply with the OMB
guidance.
2 CFR 182.500......................... Sec. 3001.500....................... Who in DHS 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.
2 CFR 182.505......................... Sec. 3001.505....................... Who in DHS 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.
2 CFR 182.510......................... Sec. 3001.510....................... What actions the Federal
Government will take against a
recipient determined to have
violated 2 CFR part 182, as
implemented by this part.
2 CFR 182.605......................... Sec. 3001.605....................... What types of assistance are
included in the definition of
``award.''
None.................................. Sec. 3001.661....................... What types of assistance are
included in the definition of
``reimbursable agreement.''
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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, DHS
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. 3001.225 Who in DHS 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 DHS Office of Inspector
General and each DHS office from which the recipient currently has an
award.
Subpart C--Requirements for Recipients Who Are Individuals
Sec. 3001.300 Who in DHS 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 DHS Office of Inspector General and each
DHS office from which the recipient currently has an award.
Subpart D--Responsibilities of Agency Awarding Officials
Sec. 3001.400 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 3001, which adopts the Government-wide
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. 3001.500 Who in DHS determines that a recipient other than an
individual violated the requirements of this part?
The Secretary of Homeland Security, or his or her official
designee, will make the determination that a recipient other than an
individual violated the requirements of this part.
Sec. 3001.505 Who in DHS determines that a recipient who is an
individual violated the requirements of this part?
The Secretary of Homeland Security, or his or her official
designee, will make the determination that a recipient who is an
individual violated the requirements of this part.
Sec. 3001.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
If a recipient is determined to have violated 2 CFR part 182, as
implemented by this part, the agency will take one or more of the
following actions--
(a) Suspension of payments under the award;
(b) Suspension or termination of the award; and
(c) Suspension or debarment of the recipient under 2 CFR part 180
and 2 CFR part 3000, for a period not to exceed five years.
Subpart F--Definitions
Sec. 3001.605 Award.
Award means an award of financial assistance by a Federal agency
directly to a recipient.
(a) The term award includes:
(1) A Federal grant, cooperative agreement or reimbursable
agreement, in the form of money or property in lieu of money.
(2) A block grant or a grant in an entitlement program, whether or
not the grant is exempted from coverage under 2 CFR part 182 and
specifies uniform administrative requirements.
(b) The term ``award'' does not include:
(1) Technical assistance that provides services instead of money.
(2) Loans.
(3) Loan guarantees.
(4) Interest subsidies.
(5) Insurance.
(6) Direct appropriations.
(7) Veterans' benefits to individuals (i.e., any benefit to
veterans, their families, or survivors by virtue of the service of a
veteran in the Armed Forces of the United States).
(8) Other Transactional Authority Award.
Sec. 3001.661 Reimbursable Agreement.
Reimbursable Agreement means an award in which the recipient is
reimbursed for expenditures only, and is not eligible for advance
payments.
TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE
CHAPTER I
PART 17--[REMOVED]
0
2. Remove part 17.
[[Page 10209]]
Dated: February 4, 2011.
Lluana McCann,
Director, Division of Financial Assistance Policy and Oversight, Office
of the Chief Financial Officer, Department of Homeland Security.
[FR Doc. 2011-3217 Filed 2-23-11; 8:45 am]
BILLING CODE 9110-9B-P