[Federal Register Volume 74, Number 217 (Thursday, November 12, 2009)]
[Rules and Regulations]
[Pages 58189-58191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27024]



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 Rules and Regulations
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  Federal Register / Vol. 74, No. 217 / Thursday, November 12, 2009 / 
Rules and Regulations  

[[Page 58189]]



DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

2 CFR Part 382

45 CFR Part 82


Implementation of OMB Guidance on Drug-Free Workplace 
Requirements

AGENCY: Department of Health and Human Services.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Health and Human Services (HHS or the 
Department) is removing its regulation implementing the Governmentwide 
common rule on drug-free workplace requirements for financial 
assistance, and issuing a new regulation to adopt Office of Management 
and Budget (OMB) guidance. 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 HHS policy or procedures for 
drug-free workplace.

DATES: This final rule is effective on January 11, 2010 without further 
action. Written comments must be received on or before 5 p.m. (Eastern 
Standard Time) on December 14, 2009 on any unintended changes this 
action makes in HHS policies and procedures for drug-free workplace. 
All comments on unintended changes will be considered and, if 
warranted, HHS will revise the rule.

ADDRESSES: You may submit comments by either of the following methods: 
E-mail: [email protected], or by mail: Nancy Weisman, HHS, Office 
of Grants Policy, Oversight and Evaluation, 200 Independence Ave., SW., 
Room 514-D Hubert H. Humphrey Building, Washington, DC 20201. Please 
state ``2 CFR part 382'' on the subject line.

FOR FURTHER INFORMATION CONTACT: Nancy Weisman at (202) 260-4573, 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].
    On November 26, 2003 [68 FR 66534], the agencies updated the common 
rule on drug-free workplace requirements and converted it to plain 
language. Each agency at that time also relocated the drug-free 
workplace coverage to its own CFR part and removed it from the subpart 
in the suspension and debarment common rule.
    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, HHS is taking two regulatory actions. 
First, we are removing the drug-free workplace common rule from 45 CFR 
part 82. Second, to replace the common rule, we are issuing a brief 
regulation in 2 CFR part 382 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 changes 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 82.

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 HHS 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

[[Page 58190]]

effective on January 11, 2010 without further action, unless we receive 
adverse comment by December 14, 2009. 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 proposed 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 proposed 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 proposed 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 382

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

45 CFR Part 82

    Administrative practice and procedure, Drug abuse, Grant programs, 
Reporting and recordkeeping requirements.

    Dated: November 2, 2009.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.

0
Accordingly, for the reasons set forth in the preamble, and under the 
authority of 5 U.S.C. 301, HHS amends the Code of Federal Regulations, 
Title 2, Subtitle B, chapter III, and Title 45 CFR, chapter I, part 82, 
as follows:

Title 2--Grants and Agreements

0
1. Add part 382 in Subtitle B, Chapter III, to read as follows:
Sec.

PART 382--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)

382.10 What does this part do?
382.20 Does this part apply to me?
382.30 What policies and procedures must I follow?

Subpart A--[Reserved]

Subpart B--Requirements for Recipients Other Than Individuals


Sec.  382.225  Whom in HHS does a recipient other than an individual 
notify about a criminal drug conviction?

Subpart C--Requirements for Recipients Who Are Individuals


Sec.  382.300  Whom in HHS does a recipient who is an individual notify 
about a criminal drug conviction?

Subpart D--Responsibilities of Agency Awarding Officials


Sec.  382.400  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


Sec.  382.500  Who in HHS determines that a recipient other than an 
individual violated the requirements of this part?


Sec.  382.505  Who in HHS determines that a recipient who is an 
individual violated the requirements of this part?

Subpart F--[Reserved]

    Authority:  41 U.S.C. 701-707.


Sec.  382.10  What does this part do?

    This part requires that the award and administration of HHS 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 HHS grants and cooperative agreements; and
    (b) Establishes HHS 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.  382.20  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 an HHS grant or cooperative agreement; or
    (b) HHS awarding official.


Sec.  382.30  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 part
       Section of OMB guidance            where supplemented           What the supplementation clarifies
----------------------------------------------------------------------------------------------------------------
(1) 2 CFR 182.225(a).................  Sec.   382.225.........  Whom in HHS 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.   382.300.........  Whom in HHS 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.   382.500.........  Who in HHS 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.

[[Page 58191]]

 
(4) 2 CFR 182.505....................  Sec.   382.505.........  Who in HHS 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, HHS 
policies and procedures are the same as those in the OMB guidance.

Subpart A--[Reserved]

Subpart B--Requirements for Recipients Other Than Individuals


Sec.  382.225  Whom in HHS does a recipient other than an individual 
notify about a criminal 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 HHS office from which it 
currently has an award.

Subpart C--Requirements for Recipients Who Are Individuals


Sec.  382.300  Whom in HHS 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 HHS office from which it currently has an 
award.

Subpart D--Responsibilities of Agency Awarding Officials


Sec.  382.400  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 382, 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.  382.500  Who in HHS determines that a recipient other than an 
individual violated the requirements of this part?

    The agency head is the official authorized to make the 
determination under 2 CFR 182.500.


Sec.  382.505  Who in HHS determines that a recipient who is an 
individual violated the requirements of this part?

    The agency head is the official authorized to make the 
determination under 2 CFR 182.505.

Subpart F--(Reserved)

Title 45--Public Welfare

CHAPTER I--DEPARTMENT OF HEALTH AND HUMAN SERVICES

PART 82--[REMOVED]

0
2. Under the authority of 5 U.S.C. 301, remove part 82.

[FR Doc. E9-27024 Filed 11-10-09; 8:45 am]
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