[Federal Register Volume 76, Number 145 (Thursday, July 28, 2011)]
[Rules and Regulations]
[Pages 45165-45168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19129]



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  Federal Register / Vol. 76, No. 145 / Thursday, July 28, 2011 / Rules 
and Regulations  

[[Page 45165]]



DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

2 CFR Part 2429

24 CFR Parts 5, 21, 84, 1000

[Docket No. FR-5471-F-01]
RIN 2501-AD54


Implementation of Office of Management and Budget Guidance on 
Drug-Free Workplace Requirements

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

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

SUMMARY: HUD is moving its regulation implementing the governmentwide 
common rule on drug-free workplace requirements for financial 
assistance from one title in the Code of Federal Regulations (CFR) to 
another title. This relocation of the requirements from one CFR title 
to another responds to directions from the Office of Management and 
Budget (OMB) to all federal agencies to consolidate into one CFR title 
all federal regulations on drug-free workplace requirements for 
financial assistance. These changes constitute an administrative 
simplification and make no substantive change in HUD policy or 
procedures for drug-free workplace.

DATES: Effective Date: August 29, 2011.

FOR FURTHER INFORMATION CONTACT: Barbara Dorf, Director, Office of 
Departmental Grants Management and Oversight, Office of the Chief of 
the Human Capital Officer, Department of Housing and Urban Development, 
451 7th Street, SW., Room 3156, Washington, DC 20410-0500, telephone 
number 202-708-0667. (This is not a toll-free number). Persons with 
hearing or speech impairments may access this number through TTY by 
calling the toll-free Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Drug-Free Workplace Act of 1988 (Pub. L. 100-690, Title V, 
Subtitle D) (41 U.S.C. 701 et seq.) (the Act) was enacted on November 
18, 1988, as part of the 1988 Omnibus Drug Act. The Act requires that 
recipients of grants and parties to cooperative agreements provide a 
drug-free workplace. On January 31, 1989 (53 FR 4946), the federal 
agencies issued an interim final common rule to implement the Act as it 
applies to grants. On May 25, 1990 (55 FR 21681), after considering 
public comment, the federal agencies issued a final common rule.
    On January 23, 2002 (67 FR 3266), the federal agencies proposed 
substantive changes to the governmentwide Debarment and Suspension 
(Nonprocurement) and governmentwide Requirements for Drug-Free 
Workplace (Grants) common rule. HUD did not join in the January 23, 
2002, publication, but proposed adopting the common rule amendments by 
separate rule, that was published on July 22, 2002 (67 FR 48006). On 
November 26, 2003 (68 FR 66534), after considering public comment on 
the January 23, 2002, common rule and, after HUD considered public 
comment on its July 22, 2002, proposed rule, the federal agencies, 
including HUD, published a final rule that updated the common rule on 
drug-free workplace requirements. Each agency at that time also 
relocated its drug-free workplace common rule to its own CFR part and 
removed the drug-free workplace rule from a subpart in the debarment 
and suspension common rule. HUD's drug-free workplace common rule was 
moved to 24 CFR part 21.
    On May 11, 2004 (69 FR 26276), OMB established Title 2 of the CFR 
as the new, central location for OMB guidance and agency implementing 
regulations concerning grants and cooperative agreements. With the 
establishment of Title 2 of the CFR, OMB announced its intention to 
replace agencies' common rules with a single set of drug-free workplace 
requirements, policies, and procedures, referred to as OMB guidance. 
Through this approach, rather than have each agency issue identical or 
nearly identical rules based on the common rule, agencies would adopt 
the OMB guidance through brief regulations that reference the agencies' 
adoption of the guidance. The establishment of Title 2 of the CFR is 
intended to assist recipients that do business with multiple federal 
agencies by creating one title in which recipients can find the 
agencies' regulations implementing governmentwide requirements 
governing grants and cooperative agreements that were previously 
published under many separate CFR titles. OMB began the process of 
replacing common rules with its guidance by proposing, and later 
finalizing, governmentwide guidance on nonprocurement suspension and 
debarment enforcement actions in 2 CFR part 180.
    On September 26, 2008 (73 FR 55776), OMB proposed guidance for 
drug-free workplace requirements in a new CFR part--2 CFR part 182. In 
addition to proposing the guidance for drug-free workplace 
requirements, OMB also proposed the format and organizational structure 
of the requirements that agencies should adopt. The guidance was issued 
in final form on June 15, 2009 (74 FR 28149). The final guidance 
directs that each federal agency replace the common rule on drug-free 
workplace requirements, which the agency previously issued in its own 
CFR title, with a brief regulation in 2 CFR adopting the governmentwide 
drug-free workplace policies and procedures.

II. This Final Rule

    As the OMB guidance requires, HUD is taking two regulatory actions 
by this final rule. First, HUD is removing the OMB common rule on drug-
free workplace requirements which includes some revisions particular to 
HUD that are currently codified at 24 CFR part 21. Second, to replace 
the common rule, HUD is promulgating a new regulation at 2 CFR part 
2429 to adopt the governmentwide policies and procedures on drug-free 
workplaces that are now in the OMB guidance. This rule does not make 
any substantive changes in the governmentwide drug-free workplace 
policies and procedures, but rather simply relocates HUD's drug-free 
workplace requirements to a central location in 2 CFR 2429, and 
highlights the commonality of these requirements among federal agencies 
by cross-referencing to OMB's guidance.

[[Page 45166]]

III. Findings and Certifications

Justification for Final Rule

    HUD generally publishes regulatory changes for public comment 
before issuing them for effect, in accordance with its own regulations 
on rulemaking in 24 CFR part 10. HUD does provide, however, in Sec.  
10.1 for exceptions from that general rule where the Department finds 
good cause to omit advance notice and public participation. The good 
cause requirement is satisfied when the prior public procedure is 
``impracticable, unnecessary, or contrary to the public interest.'' In 
this case, the Department finds that delaying the effective date of 
this rule in order to solicit prior public comment is unnecessary.
    As described in the ``Background'' section of this preamble, this 
rule is directed to a CFR ``housekeeping'' matter which is moving HUD's 
governmentwide regulations applicable to drug-free workplace 
requirements to a new title in the CFR and in streamlined form, as 
directed by OMB. This rule makes no substantive changes to the drug-
free workplace policies and procedures, as currently codified in 
regulation, and which have been proposed for comment three times and 
adopted after resolution of the comments received. Since no substantive 
changes are made by this rule, and the rule would not affect current 
application and enforcement of drug-free workplace requirements, no 
public comment is necessary.

Executive Order 12866, Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and it was 
not reviewed by OMB. The rule responds to OMB's streamlining direction 
with respect to drug-free workplace requirements for federal financial 
assistance, and adds HUD's requirements to those of other federal 
agencies that are consolidated in one title of the CFR. This rule is 
solely an administrative simplification that

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally 
requires an agency to conduct a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements, unless the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. Because no advance 
notice of proposed rulemaking is required pursuant to 5 U.S.C. 553(b) 
for this rule, which moves a set of regulations, without change, from 
one CFR title to another, the provisions of the Regulatory Flexibility 
Act do not apply.

Environmental Impact

    This rule is categorically excluded from environmental review under 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321) and HUD 
regulations at 24 CFR 50.19(c)(1).

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
imposes substantial direct compliance costs on state and local 
governments and is not required by statute, or the rule preempts state 
law, unless the agency meets the relevant requirements of section 6 of 
the Executive Order. This final rule does not have federalism 
implications and does not impose substantial direct compliance costs on 
state and local governments or preempt state law within the meaning of 
the Executive Order.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (12 
U.S.C. 1531-1538) establishes requirements for federal agencies to 
assess the effects of their regulatory actions on state, local, and 
tribal governments, and on the private sector. This final rule would 
not impose any federal mandates on any state, local, or tribal 
governments, or on the private sector, within the meaning of UMRA.

List of Subjects

2 CFR Part 2429

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

24 CFR Part 5

    Administrative practice and procedure, Aged, Claims, Crime, 
Government contracts, Grant programs--housing and community 
development, Individuals with disabilities, Intergovernmental 
relations, Loan programs--housing and community development, Low and 
moderate income housing, Mortgage insurance, Penalties, Pets, Public 
housing, Rent subsidies, Reporting and recordkeeping requirements, 
Social Security, Unemployment compensation, Wages.

24 CFR Part 21

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

24 CFR Part 84

    Accounting, Colleges and universities, Grant programs, Hospitals, 
Non-profit organizations, Reporting and recordkeeping requirements.

24 CFR Part 1000

    Aged, Community development block grants, Grant programs--housing 
and community development, Grant programs--Indians, Indians, 
Individuals with disabilities, Public housing, Reporting and 
recordkeeping requirements.

    Accordingly, for the reasons described in the preamble, and under 
the authority of 5 U.S.C. 301, HUD amends the Code of Federal 
Regulation, Title 2, Subtitle B, chapter XXIV, and Title 24 CFR parts 
5, 21, 84 and 1000, as follows:

Title 2--Grants and Agreements

0
1. Add new part 2429 in Subtitle B, Chapter XXIV, to read as follows:

PART 2429--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL 
ASSISTANCE)

Sec.
2429.10 What does this part do?
2429.20 Does this part apply to me?
2429.30 What policies and procedures must I follow?
Subpart A--[Reserved]
Subpart B--Requirements for Recipients Other Than Individuals
2429.225 Whom in HUD does a recipient other than an individual 
notify about a criminal drug conviction?
Subpart C--Requirements for Recipients Who Are Individuals
2429.300 Whom in HUD does a recipient who is an individual notify 
about a criminal drug conviction?
Subpart D--Responsibilities of Agency Awarding Officials
2429.400 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
2429.500 Who in HUD determines that a recipient other than an 
individual violated the requirements of this part?
2429.505 Who in HUD determines that a recipient who is an individual 
violated the requirements of this part?

[[Page 45167]]

Subpart F--[Reserved]

    Authority: 41 U.S.C. 701-707; 42 U.S.C. 3535(d).


Sec.  2429.10  What does this part do?

    This part requires that the award and administration of HUD 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) (referred to as the Act in this part) that 
applies to grants. This part:
    (a) Gives regulatory effect to the OMB guidance (Subparts A through 
F of 2 CFR part 182) for HUD grants and cooperative agreements; and
    (b) Establishes HUD 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.  2429.20  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 HUD grant or cooperative agreement; or
    (b) HUD awarding official.


Sec.  2429.30  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 of 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.   2429.225  Whom in HUD must a recipient other than an
                                                                     individual notify if an employee is
                                                                     convicted for a violation of a criminal
                                                                     drug statute in the workplace?
(2) 2 CFR 182.300(b)............................   Sec.   2429.300  Whom in HUD must a recipient who is an
                                                                     individual 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.   2429.500  Who in HUD 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.   2429.505  Who in HUD 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, HUD 
policies and procedures are the same as those in the OMB guidance.

Subpart A--[Reserved]

Subpart B--Requirements for Recipients Other Than Individuals


Sec.  2429.225  Whom in HUD does a recipient other than an individual 
notify about a criminal conviction?

    A recipient other than an individual who 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 HUD office with which it 
currently has an award.

Subpart C--Requirements for Recipients Who Are Individuals


Sec.  2429.300  Whom in HUD does a recipient who is an individual 
notify about a criminal 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 HUD office with which he or she currently 
has an award.

Subpart D--Responsibilities of Agency Awarding Officials


Sec.  2429.400  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 2429, which adopts the 
governmentwide implementation (2 CFR part 182) of sections 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.  2429.500  Who in HUD determines that a recipient other than an 
individual violated the requirements of this part?

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


Sec.  2429.505  Who in HUD determines that a recipient who is an 
individual violated the requirements of this part?

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

Subpart F--[Reserved]

Title 24--Housing and Urban Development

PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

0
2. The authority citation for part 5 continues to read as follows:

    Authority:  42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, 
3535(d).

0
3. Revise Sec.  5.105(d) to read as follows:


Sec.  5.105  Other Federal requirements.

* * * * *
    (d) Drug-free workplace. The Drug-Free Workplace Act of 1988 (41 
U.S.C. 701, et seq.) and HUD's implementing regulations at 2 CFR part 
2429.

PART 21--[REMOVED]

0
5. Remove Part 21.

[[Page 45168]]

PART 84--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND 
AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND 
OTHER NON-PROFIT ORGANIZATIONS

    The authority citation for part 84 continues to read as follows:

    Authority: 42 U.S.C. 3535(d).


0
7. Revise Sec.  84.13(b) to read as follows:


Sec.  84.13  Debarment and suspension; Drug-Free Workplace.

* * * * *
    (b) Recipients and subrecipients shall comply with the requirements 
of the Drug-Free Workplace Act of 1988 (41 U.S.C. 701, et seq.), as set 
forth at 2 CFR part 2429.

PART 1000--NATIVE AMERICAN HOUSING ACTIVITIES

    The authority citation for part 1000 continues to read as follows:

    Authority: 25 U.S.C. 4101 et seq.; 42 U.S.C. 3535(d).


0
9. Revise Sec.  1000.46 to read as follows:


Sec.  1000.46  Do drug-free workplace requirements apply?

    Yes. In addition to any tribal requirements, the Drug-Free 
Workplace Act of 1988 (41 U.S.C. 701, et seq.) and HUD's implementing 
regulations in 2 CFR part 2429 apply.

    Dated: July 15, 2011.
Shaun Donovan,
Secretary.
[FR Doc. 2011-19129 Filed 7-27-11; 8:45 am]
BILLING CODE 4210-67-P