[Federal Register Volume 76, Number 114 (Tuesday, June 14, 2011)]
[Rules and Regulations]
[Pages 34573-34575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14243]



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  Federal Register / Vol. 76, No. 114 / Tuesday, June 14, 2011 / Rules 
and Regulations  

[[Page 34573]]



AGENCY FOR INTERNATIONAL DEVELOPMENT

2 CFR Part 782

22 CFR Part 210

RIN 0412-AA66


Implementation of OMB Guidance on Drug-Free Workplace 
Requirements

AGENCY: U.S. Agency for International Development.

ACTION: Final rule.

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

SUMMARY: The U.S. Agency for International Development (USAID) is 
removing its regulation implementing the Government-wide common rule on 
drug-free workplace requirements for financial assistance, currently 
located within Part 210 of Title 22 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 
USAID policy or procedures for drug-free workplace.

DATES: This final rule is effective on August 15, 2011 without further 
action. Submit comments by July 14, 2011 on any unintended changes this 
action makes in USAID policies and procedures for drug-free workplace. 
All comments on unintended changes will be considered and, if 
warranted, USAID will revise the rule.

ADDRESSES: You may submit comments, identified by RIN 0412-AA66 in the 
subject line to Ms. M. E. Yearwood, USAID--M/OAA/P, SA-44, 867B, 1300 
Pennsylvania Ave., NW., Washington, DC 20523, e-mail 
[email protected], fax (202) 567-4695.

FOR FURTHER INFORMATION CONTACT: Melita E. Yearwood, Procurement 
Analyst, Office of Acquisition and Assistance, Policy Division at (202) 
567-4672.

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 
[53 FR 4946, January 31, 1989]. The rule was a subpart of the 
Government-wide common rule on non-procurement 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 non-procurement 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] 
Government-wide guidance on non-procurement 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 that the agency previously issued in its own CFR title 
with a brief regulation in 2 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 collocates OMB's guidance and all of the agencies' implementing 
regulations in 2 CFR.

The Current Regulatory Actions

    As the OMB guidance requires, USAID is taking two regulatory 
actions. First, we are removing the drug-free workplace common rule 
from 22 CFR Part 210. Second, to replace the common rule, we are 
issuing a brief regulation in 2 CFR Part 182 to adopt the Government-
wide 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 22 CFR Part 210.

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 USAID's policy or procedures 
for drug-free

[[Page 34574]]

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 
August 15, 2011 without further action, unless we receive adverse 
comment by July 14, 2011. 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 782

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

22 CFR Part 210

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

    Accordingly, for the reasons set forth in the preamble, and under 
the authority of 5 U.S.C. 301, the USAID amends the Code of Federal 
Regulations, Title 2, Subtitle B, chapter VII, Part 782, and Title 22, 
chapter II, as follows:

Title 2--Grants and Agreements

0
1. Add part 782 in Subtitle B, Chapter VII, to read as follows:

PART 782--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL 
ASSISTANCE)

Sec.
782.10 What does this part do?
782.20 Does this part apply to me?
782.30 What policies and procedures must I follow?
Subpart A--Purpose and Coverage [Reserved]
Subpart B--Requirements for Recipients Other Than Individuals
782.225 Whom in USAID does a recipient other than an individual 
notify about a criminal drug conviction?
Subpart C--Requirements for Recipients Who Are Individuals
782.300 Whom in USAID does a recipient who is an individual notify 
about a criminal drug conviction?
Subpart D--Responsibilities of Agency Awarding Officials
782.400 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
782.500 Who in USAID determines that a recipient other than an 
individual violated the requirements of this part?
782.505 Who in USAID determines that a recipient who is an 
individual violated the requirements of this part?
Subpart F--Definitions
782.605 Award (USAID Supplement to Government Wide Definition at 2 
CFR 182.605).


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


Sec.  782.10  What does this part do?

    This part requires that the award and administration of USAID 
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 USAID's grants and cooperative agreements; and
    (b) Establishes USAID 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 Government wide 
implementing regulations.


Sec.  782.20  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 USAID grant or cooperative agreement; or
    (b) USAID awarding official.


Sec.  782.30  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.   782.225  Whom in USAID a recipient other than an individual
                                                             must notify if an employee is convicted for a
                                                             violation of a criminal drug statute in the
                                                             workplace.

[[Page 34575]]

 
(2) 2 CFR 182.300(b)....................    Sec.   782.300  Whom in USAID 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.   782.500  Who in USAID 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.   782.505  Who in USAID 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, 
USAID 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.  782.225  Whom in USAID 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--
    (a) Federal agencies if an employee who is engaged in the 
performance of an award informs you about a conviction, or you 
otherwise learn of the conviction. Your notification to the Federal 
agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.

Subpart C--Requirements for Recipients Who Are Individuals


Sec.  782.300  Whom in USAID 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 USAID office from which it currently has 
an award.

Subpart D--Responsibilities of Agency Awarding Officials


Sec.  782.400  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 782, 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.  782.500  Who in USAID determines that a recipient other than an 
individual violated the requirements of this part?

    The Director of the Office of Acquisition and Assistance is the 
official authorized to make the determination under 2 CFR 182.500.


Sec.  782.505  Who in USAID determines that a recipient who is an 
individual violated the requirements of this part?

    The Director of the Office of Acquisition and Assistance is the 
official authorized to make the determination under 2 CFR 182.505.

Subpart F--Definitions


Sec.  782.605  Award USAID supplement to Government-wide definition at 
2 CFR 182.605

    Award means an award of financial assistance by the U.S. Agency for 
International Development or other Federal agency directly to a 
recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative 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 the Government-wide rule 
that implements OMB Circular A-102 (for availability, see 5 CFR 1310.3) 
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).
    (c) Notwithstanding paragraph (a)(2) of this section, this 
paragraph is not applicable to AID.

0
2. In title 22, chapter II, remove Part 210

    Dated: March 24, 2011.
M.E. Yearwood,
Acquisitions and Assistance Policy Analyst, USAID.
[FR Doc. 2011-14243 Filed 6-13-11; 8:45 am]
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