[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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  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.

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

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]]



----------------------------------------------------------------------------------------------------------------
                                                  Section in
                                                   this part
            Section of OMB guidance                  where             What the supplementation clarifies
                                                 supplemented
----------------------------------------------------------------------------------------------------------------
(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''.
----------------------------------------------------------------------------------------------------------------

     (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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