[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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  Federal Register / Vol. 76, No. 37 / Thursday, February 24, 2011 / 
Rules and Regulations  

[[Page 10205]]


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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.

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

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

[[Page 10207]]

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]]



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

    (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