[Federal Register Volume 76, Number 236 (Thursday, December 8, 2011)]
[Rules and Regulations]
[Pages 76609-76611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31467]



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 Rules and Regulations
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  Federal Register / Vol. 76, No. 236 / Thursday, December 8, 2011 / 
Rules and Regulations  

[[Page 76609]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

2 CFR Part 421

7 CFR Part 3021

RIN 0505AA14


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

AGENCY: Office of the Secretary, USDA.

ACTION: Direct final rule.

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

SUMMARY: The Department of Agriculture (USDA) is removing its 
regulation implementing the Governmentwide common rule on drug-free 
workplace requirements for financial assistance, currently located 
within part 3021 of Title 7 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 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 
USDA's policy or procedures for drug-free workplace.

DATES: This direct final rule is effective on February 6, 2012 without 
further action. Submit comments by January 9, 2012 on any unintended 
changes this action makes in USDA's policies and procedures for drug-
free workplace. All comments on unintended changes will be considered 
and, if warranted, USDA will publish a timely withdrawal of the rule in 
the Federal Register.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN Number, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include [docket number 
and/or RIN number] in the subject line of the message.
     Fax: James McStay at (202) 690-1529.
     Mail: OCFO/CTGPD, Room 3409-A, Stop 9010, 1400 
Independence Avenue SW., Washington, DC 20250-9010.
     Hand Delivery/Courier: OCFO/CTGPD, Room 3409-A, 1400 
Independence Avenue SW., Washington, DC 20250.

All submissions received must include the agency name and RIN for this 
rulemaking. All comments received will be posted without change to 
http://www.regulations.gov, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT: James McStay, (202) 720-0589, Email: 
[email protected]; or Steve Lowery, (202) 720-1568, Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    On November 18, 1988, Congress enacted the Drug-Free Workplace Act 
of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701, et seq.) 
as a part of omnibus drug legislation. 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 
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, USDA is taking two regulatory 
actions. First, we are removing the drug-free workplace common rule 
from 7 CFR part 3021. Second, to replace the common rule, we are 
issuing a brief regulation in 2 CFR part 421 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

[[Page 76610]]

would make relative to the common rule at 7 CFR part 3021.

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 the USDA 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 
February 6, 2012 without further action, unless we receive adverse 
comment by January 9, 2012. If we receive any comment on unintended 
changes is received, we will consider it 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 421

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

7 CFR Part 3021

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

    Accordingly, for the reasons set forth in the preamble, and under 
the authority of 5 U.S.C. 301, the Department of Agriculture amends the 
Code of Federal Regulations, Title 2, Subtitle B, chapter IV, and Title 
7, chapter XXX, part 3021, as follows:

Title 2--Grants and Agreements

Chapter IV--Department of Agriculture

0
1. Add part 421 in Subtitle B, Chapter IV, to read as follows:

PART 421--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL 
ASSISTANCE)

Sec.
421.10 What does this part do?
421.20 Does this part apply to me?
421.30 What policies and procedures must I follow?
Subpart A--Purpose and Coverage [Reserved]
Subpart B--Requirements for Recipients Other Than Individuals
421.225 Whom in the USDA does a recipient other than an individual 
notify about a criminal drug conviction?
Subpart C--Requirements for Recipients Who Are Individuals
421.300 Whom in the USDA does a recipient who is an individual 
notify about a criminal drug conviction?
Subpart D--Responsibilities of Agency Awarding Officials
421.400 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
421.500 Who in the USDA determines that a recipient other than an 
individual violated the requirements of this part?
421.505 Who in the USDA determines that a recipient who is an 
individual violated the requirements of this part?

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


Sec.  421.10  What does this part do?

    This part requires that the award and administration of USDA 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 USDA's grants and cooperative agreements; and
    (b) Establishes USDA 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.  421.20  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 USDA grant or cooperative agreement; or
    (b) USDA awarding official.


Sec.  421.30  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 76611]]



----------------------------------------------------------------------------------------------------------------
                                           Section in this part where
         Section of OMB guidance                  supplemented             What the supplementation clarifies
----------------------------------------------------------------------------------------------------------------
(1) 2 CFR 182.225(a)....................  Sec.   421.225.............  Whom in the USDA 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.   421.300.............  Whom in the USDA 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.   421.500.............  Who in the USDA 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.   421.505.............  Who in the USDA 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, 
USDA 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.  421.225  Whom in the USDA 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 awarding official for each 
USDA agency from which the recipient currently has an award.

Subpart C--Requirements for Recipients Who Are Individuals


Sec.  421.300  Whom in the USDA does a recipient who is an individual 
notify about a criminal drug conviction?

    A recipient who is an individual that is required under 2 CFR 
182.300(b) to notify Federal agencies about a conviction for a criminal 
drug offense must notify the awarding official for each USDA agency 
from which the recipient currently has an award.

Subpart D--Responsibilities of Agency Awarding Officials


Sec.  421.400  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 421, 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.  421.500  Who in the USDA determines that a recipient other than 
an individual violated the requirements of this part?

    The Secretary of Agriculture and the Secretary's designee or 
designees are authorized to make the determination under 2 CFR 182.500.


Sec.  421.505  Who in the USDA determines that a recipient who is an 
individual violated the requirements of this part?

    The Secretary of Agriculture and the Secretary's designee or 
designees are authorized to make the determination under 2 CFR 182.505.

Title 7--Agriculture

Chapter XXX--Office of the Chief Financial Officer, Department of 
Agriculture

PART 3021--[REMOVED]

0
2. Remove Part 3021.

    Approved: October 26, 2011.
Pearlie S. Reed,
Assistant Secretary for Administration.
[FR Doc. 2011-31467 Filed 12-7-11; 8:45 am]
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