[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Rules and Regulations]
[Pages 80287-80289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32134]



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  Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / 
Rules and Regulations  

[[Page 80287]]



ENVIRONMENTAL PROTECTION AGENCY

2 CFR Part 1536

40 CFR Part 36

[Docket No. EPA-HQ-OARM-2010-0922; FRL- 9242-2]


Environmental Protection Agency Implementation of OMB Guidance on 
Drug-Free Workplace Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency is removing its regulation 
implementing the Governmentwide common rule on drug-free workplace 
requirements for financial assistance. 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 
Environmental Protection Agency policy or procedures for drug-free 
workplace.

DATES: This final rule is effective on December 22, 2010.

ADDRESSES:  EPA has established a docket for this action under Docket 
ID No. EPA-HQ-OARM-2010-0922. All documents in the docket are listed in 
the http://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is publicly available only in 
hard copy. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Public Reading Room. The Public Reading Room is open from 8:30 a.m. 
to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Elizabeth January, Environmental 
Protection Agency, 5 Post Office Square, Boston, MA 02109, by phone 
(617) 918-8655 or by e-mail ([email protected]).

SUPPLEMENTARY INFORMATION:

I. General Information

    Affected Entities: Entities that receive grants from EPA.

II. 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.

Conclusion

    As the OMB guidance requires, the Environmental Protection Agency 
is taking two regulatory actions. First, we are removing the drug-free 
workplace common rule from 40 CFR part 36. Second, to replace the 
common rule, we are issuing a brief regulation in 2 CFR part 1536 to 
adopt the Governmentwide policies and procedures in the OMB guidance.
    Statutory and Executive Order Reviews: OMB has determined under 
Executive Order 12866 (58 FR 51735, October 4, 1993), that this action 
is not a ``significant regulatory action.'' Because this grants rule is 
not subject to notice and comment requirements under the Administrative 
Procedure Act or any other statute, it is not subject to the Regulatory 
Flexibility Act (5 U.S.C. 601 et.). Today's rule contains no Federal 
mandates (under the regulatory provisions of Title 2 of the Unfunded 
Mandates Reform Act of 1999 (UMRA)) for State, local, or tribal 
governments or the private sector that would subject the rule to 
Sections 202 and 205 of the UMRA) (Pub. L. 104-4). The rule imposes no 
enforceable duty on any State, local, or Tribal governments or the 
private sector. In addition, this rule does not significantly or 
uniquely affect small governments. This action does not have tribal 
implications, as specified in Executive Order 13175 (65 FR 67249, 
November 9, 2000). This final rule is

[[Page 80288]]

solely an administrative simplification that would make no substantive 
change in Environmental Protection Agency policy or procedures for 
drug-free workplace. Thus, Executive Order 13175 (63 FR 67249, November 
9, 2000) does not apply to this action. EPA interprets Executive Order 
13045 (62 FR 19885, April 23, 1997) as applying only to those 
regulatory actions that concern health or safety risks, such that the 
analysis required under section 5-501 of the Executive Order has the 
potential to influence the regulation. This action is not subject to 
Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks. This rule will 
not have federalism implications, as specified in Executive Order 13132 
(64 FR 43255, August 10, 1999). Executive Order 12898 (59 FR 7629 
(February 16, 1994)) establishes Federal executive policy on 
environmental justice. EPA has determined that this rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it is a grant 
rule that does not affect the level of protection provided to human 
health or the environment. This rule is not a ``significant energy 
action'' as defined in Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355 (May 22, 2001)) because it is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Further, we have concluded that this rule is not likely to have 
any adverse energy effects. This rule does not involve technical 
standards; thus, the requirements of Section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. This rule does not impose an additional information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).
    Congressional Review Act: The Congressional Review Act, 5 U.S.C. 
801 et seq., generally provides that before certain actions may take 
effect, the agency promulgating the action must submit a report, which 
includes a copy of the action, to each House of the Congress and to the 
Comptroller General of the United States. EPA will submit a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States prior to publication of the rule in the Federal Register. 
A major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. 804(2). This rule will be effective on December 22, 2010.

List of Subjects

2 CFR Part 1536

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

40 CFR Part 36

    Governmentwide requirements for drug-free work-place (financial 
assistance).

    Dated: December 16, 2010.
Howard Corcoran,
Director, Office of Grants and Debarment.

0
Accordingly, for the reasons set forth in the preamble, and under the 
authority of 5 U.S.C. 301, the Environmental Protection Agency amends 
the Code of Federal Regulations, Title 2, Subtitle B, Chapter XV, Part 
1536, and Title 40, Chapter I, Part 36, as follows:

Title 2--Grants and Agreements

0
1. Add Part 1536 in Subtitle B, Chapter XV, to read as follows:

PART 1536--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL 
ASSISTANCE)

Sec.
1536.10 What does this part do?
1536.20 Does this part apply to me?
1536.30 What policies and procedures must I follow?
Subpart A--Purpose and Coverage [Reserved.]
Subpart B--Requirements for Recipients Other Than Individuals
1536.225 Whom in the Environmental Protection Agency does a 
recipient other than an individual notify about a criminal drug 
conviction?
Subpart C--Requirements for Recipients Who Are Individuals
1536.300 Whom in the Environmental Protection Agency does a 
recipient who is an individual notify about a criminal drug 
conviction?
Subpart D--Responsibilities of Agency Awarding Officials
1536.400 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
1536.500 Who in the Environmental Protection Agency determines that 
a recipient other than an individual violated the requirements of 
this part?
1536.505 Who in the Environmental Protection Agency determines that 
a recipient who is an individual violated the requirements of this 
part?

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


Sec.  1536.10  What does this part do?

    This part requires that the award and administration of 
Environmental Protection Agency 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 Environmental Protection Agency's grants 
and cooperative agreements; and
    (b) Establishes Environmental Protection Agency 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.  1536.20  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 Environmental Protection Agency grant or 
cooperative agreement; or
    (b) Environmental Protection Agency awarding official.


Sec.  1536.30  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 80289]]



----------------------------------------------------------------------------------------------------------------
                                                           Section in this
                 Section of OMB guidance                      part where      What the supplementation clarifies
                                                             supplemented
----------------------------------------------------------------------------------------------------------------
(1) 2 CFR 182.225(a)....................................    Sec.   1536.225  Whom in the Environmental
                                                                              Protection Agency 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.   1536.300  Whom in the Environmental
                                                                              Protection Agency 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.   1536.500  Who in the Environmental Protection
                                                                              Agency 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.   1536.505  Who in the Environmental Protection
                                                                              Agency 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, 
Environmental Protection Agency 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.  1536.225  Whom in the Environmental Protection Agency 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 EPA award official from 
each Environmental Protection Agency office from which it currently has 
an award.

Subpart C--Requirements for Recipients Who Are Individuals


Sec.  1536.300  Whom in the Environmental Protection Agency 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 EPA award official from each Environmental 
Protection Agency office from which it currently has an award.

Subpart D--Responsibilities of Agency Awarding Officials


Sec.  1536.400  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 Subtitle B, Chapter XV, Part 
1536, 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.  1536.500  Who in the Environmental Protection Agency determines 
that a recipient other than an individual violated the requirements of 
this part?

    The EPA Administrator or designee is the official authorized to 
make the determination under 2 CFR 182.500.


Sec.  1536.505  Who in the Environmental Protection Agency determines 
that a recipient who is an individual violated the requirements of this 
part?

    The EPA Administrator or designee is the official authorized to 
make the determination under 2 CFR 182.505.

Title 40--Protection of Environment

Chapter I

PART 36--[REMOVED]

0
2. Remove Part 36.

[FR Doc. 2010-32134 Filed 12-21-10; 8:45 am]
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