[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]



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  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