[Federal Register Volume 78, Number 77 (Monday, April 22, 2013)]
[Proposed Rules]
[Pages 23699-23702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09044]


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DEPARTMENT OF COMMERCE

Office of the Secretary

2 CFR Part 1329

15 CFR Part 29

[Docket No. 0907271171-91172-01]
RIN 0605-AA28


Implementation of OMB Guidance on Drug-Free Workplace 
Requirements

AGENCY: U.S. Department of Commerce.

ACTION: Proposed rule.

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SUMMARY: The U.S. Department of Commerce is proposing to remove its 
regulation implementing the Governmentwide common rule on drug-free 
workplace requirements for financial assistance, and issuing a new 
regulation to adopt the Office of

[[Page 23700]]

Management and Budget (OMB) guidance. 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 U.S. Department 
of Commerce policy or procedures for drug-free workplace.

DATES: Submit comments by May 22, 2013 on any unintended changes this 
action makes in U.S. Department of Commerce policies and procedures for 
drug-free workplace. All comments on unintended changes will be 
considered and, if warranted, U.S. Department of Commerce will revise 
the rule.

ADDRESSES: You may submit comments, identified by RIN 0605-AA28, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Gary Johnson, Office of Acquisition Management, U.S. 
Department of Commerce, Room H-6412, 1401 Constitution Avenue NW., 
Washington, DC 20230.
     Hand Delivery/Courier: Same Address as Above.
    Instructions: All submissions received must include the agency name 
and Regulatory Information Number (RIN) for this rulemaking. All 
comments received will be posted without change to Regulations.gov, 
including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Gary Johnson, [email protected], 202 
482-1679.

SUPPLEMENTARY INFORMATION: 

Background

    The Drug-Free Workplace Act of 1988, Public Law 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.

The Current Regulatory Actions

    As the OMB guidance requires, the Department of Commerce is taking 
two regulatory actions. First, we are proposing to remove the drug-free 
workplace common rule from 15 CFR part 29. Second, to replace the 
common rule, we propose to issue a brief regulation in 2 CFR part 1329 
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 would make 
relative to the common rule at 15 CFR part 29.

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))

    Pursuant to section 605(b), the Chief Council for Regulations 
certified to the Chief Council for Advocacy at the Small Business 
Administration that the attached proposed rule, if adopted, will not 
have a significant economic impact on a substantial number of small 
entities.
    The U.S. Department of Commerce is proposing to remove its 
regulation implementing the Governmentwide common rule on drug-free 
workplace requirements for financial assistance, currently located 
within Part 29 of Title 15 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. This regulatory change does not 
impact any small entities as these changes constitute an administrative 
simplification that would make no substantive change in U.S. Department 
of Commerce policy or procedures for drug-free workplace. For the 
reasons set forth above, this action will not have a significant 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 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

[[Page 23701]]

on the distribution of power and responsibilities among the various 
levels of government.

List of Subjects

2 CFR Part 1329

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

15 CFR Part 29

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

    Issued this 3rd day of April, 2013 at Washington, DC.
Barry E. Berkowitz,
Director for Acquisition Management and Procurement Executive.

    Accordingly, for the reasons set forth in the preamble, and under 
the authority of 5 U.S.C. 301 and 41 U.S.C. 701 et seq., the U.S. 
Department of Commerce proposes to add 2 CFR 1329 and remove 15 CFR 29 
as follows:

Title 2--Grants and Agreements

0
1. Add Part 1329 to Subtitle B, Chapter XIII, to read as follows:

PART 1329--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL 
ASSISTANCE)

Sec.
1329.10 What does this part do?
1329.20 Does this Part apply to me?
1329.30 What policies and procedures must I follow?
Subpart A--Purpose and Coverage [Reserved]
Subpart B--Requirements for Recipients Other Than Individuals
1329.225 Whom in the Department of Commerce does a recipient other 
than an individual notify about a criminal drug conviction?
Subpart C--Requirements for Recipients Who Are Individuals
1329.300 Whom in the Department of Commerce does a recipient who is 
an individual notify about a criminal drug conviction?
Subpart D--Responsibilities of Agency Awarding Officials
1329.400 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
1329.500 Who in the Department of Commerce determines that a 
recipient other than an individual violated the requirements of this 
part?
1329.505 Who in the Department of Commerce determines that a 
recipient who is an individual violated the requirements of this 
part?
Subpart F--Definitions [Reserved]

    Authority:  5 U.S.C. 301; 41 U.S.C. 701-707.


Sec.  1329.10  What does this part do?

    This part requires that the award and administration of Department 
of Commerce 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 Department of Commerce's grants and 
cooperative agreements; and
    (b) Establishes Department of Commerce 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.  1329.20  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 Department of Commerce grant or cooperative 
agreement; or
    (b) Department of Commerce awarding official.


Sec.  1329.30  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         What the
    Section of OMB guidance        part where         supplementation
                                  supplemented           clarifies
------------------------------------------------------------------------
(1) 2 CFR 182.225(a)..........   Sec.   1329.225  Whom in the Department
                                                   of Commerce 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.   1329.300  Whom in the Department
                                                   of Commerce 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.   1329.500  Who in the Department
                                                   of Commerce 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.   1329.505  Who in the Department
                                                   of Commerce 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.
------------------------------------------------------------------------


[[Page 23702]]

    (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, 
Department of Commerce 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.  1329.225  Whom in the Department of Commerce 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 each Department of Commerce 
office from which it currently has an award.

Subpart C-- Requirements for Recipients Who Are Individuals


Sec.  1329.300  Whom in the Department of Commerce 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 Department of Commerce office from which 
it currently has an award.

Subpart D--Responsibilities of Agency Awarding Officials


Sec.  1329.400  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 1329, 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.  1329.500  Who in the Department of Commerce determines that a 
recipient other than an individual violated the requirements of this 
Part?

    The Secretary of Commerce or designee.


Sec.  1329.505  Who in the Department of Commerce determines that a 
recipient who is an individual violated the requirements of this Part?

    The Secretary of Commerce or designee.

Subpart F--Definitions [Reserved]

Title 15--Commerce and Foreign Trade

PART 29--[Removed and Reserved]

0
2. Remove and reserve Part 29.
[FR Doc. 2013-09044 Filed 4-19-13; 8:45 am]
BILLING CODE 3510-03-P