[Federal Register Volume 80, Number 112 (Thursday, June 11, 2015)]
[Rules and Regulations]
[Pages 33155-33157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14163]



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  Federal Register / Vol. 80, No. 112 / Thursday, June 11, 2015 / Rules 
and Regulations  

[[Page 33155]]



NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES

National Endowment for the Arts

2 CFR Part 3256

45 CFR Part 1155

RIN 3135-AA24


Implementation of OMB Guidance on Drug-Free Workplace 
Requirements

AGENCY: National Endowment for the Arts.

ACTION: Final rule.

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

SUMMARY: The National Endowment for the Arts (NEA) is adopting the 
Office of Management and Budget (OMB) guidance on drug-free workplace 
requirements for financial assistance. It is removing its regulation 
implementing the Governmentwide common rule and issuing a new 
regulation to adopt the 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 regulatory actions constitute an 
administrative simplification that would make no substantive change in 
NEA's policy or procedures for drug-free workplace.

DATES: This rule is effective on June 11, 2015.

FOR FURTHER INFORMATION CONTACT: Sarah Weingast, Assistant General 
Counsel, (202) 682-5796.

SUPPLEMENTARY INFORMATION: Please note that the proposed rule for this 
regulatory change, filed March 23, 2015, originally designated 2 CFR 
part 3255 for the Implementation of the OMB Guidance. No comments were 
received regarding the proposed rule during the 30 day comment period. 
This final rule, however has redesignated this Implementation of OMB 
Guidance to part 3256 so that the originally-designated part may be 
used for other regulations.

A. 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 locates OMB's guidance and all of the agencies' implementing 
regulations in 2 CFR.

B. The Current Regulatory Actions

    As the OMB guidance requires, the NEA is taking two regulatory 
actions. First, we are removing the drug-free workplace common rule 
from 45 CFR part 1155. Second, to replace the common rule, we are 
issuing a brief regulation in 2 CFR part 3256 to adopt the 
Governmentwide policies and procedures in the OMB guidance.
    Please note that the proposed rule for this regulatory change, 
filed March 23, 2015, originally designated 2 CFR part 3255 for the 
Implementation of the OMB Guidance. No comments were received regarding 
the proposed rule during the 30 day comment period. The final rule, 
however has redesignated this Implementation of OMB Guidance to part 
3256 so that the originally-designated part may be used for other 
regulations.

1. 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 did not seeking to revisit substantive issues that 
were resolved during the development of the final common rule in 2003. 
We invited comments specifically on any unintended changes in 
substantive content that the new part in 2 CFR would make relative to 
the common rule at 45 CFR part 1155. No comments were received by the 
close of the thirty day comment period.

2. 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

[[Page 33156]]

rule in 2002, and a second time by OMB as guidance in 2008--and adopted 
each time after resolution of the comments received.
    This final rule is solely an administrative simplification that 
would make no substantive change in the NEA policy or procedures for 
drug-free workplace. We therefore believe that the rule is 
noncontroversial and did not expect to receive adverse comments, 
although we are invited comments on any unintended substantive change 
this rule makes. No comments were received by the close of the thirty-
day comment period and this rule becomes effective on June 11, 2015 
without further action.

3. Executive Order 12866

    OMB has determined this rule to be not significant for purposes of 
E.O. 12866.

4. 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.

5. 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.

6. 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.

7. 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 3256

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

45 CFR Part 1155

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

    For the reasons stated in the preamble, the National Endowment for 
the Arts amends 2 CFR chapter XXXII and 45 CFR chapter XI as follows:

Title 2--Grants and Agreements

CHAPTER XXXII--NATIONAL ENDOWMENT FOR THE ARTS

0
1. In title 2, chapter XXXII, add part 3256 to read as follows:

PART 3256--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL 
ASSISTANCE)

Sec.
3256.100 What does this part do?
3256.105 Does this part apply to me?
3256.110 What policies and procedures must I follow?
Subpart A--[Reserved]
Subpart B--Requirements for Recipients Other Than Individuals
3256.200 Whom in the NEA does a recipient other than an individual 
notify about a criminal drug conviction?
Subpart C--Requirements for Recipients Who Are Individuals
3256.300 Whom in the NEA does a recipient who is an individual 
notify about a criminal drug conviction?
Subpart D--Responsibilities of NEA Awarding Officials
3256.400 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
3256.500 Who in the NEA determines that a recipient other than an 
individual violated the requirements of this part?
3256.505 Who in the NEA determines that a recipient who is an 
individual violated the requirements of this part?
Subpart F--[Reserved]

    Authority:  41 U.S.C. 701 et seq.


Sec.  3256.100  What does this part do?

    This part requires that the award and administration of NEA 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 NEA's grants and cooperative agreements; 
and
    (b) Establishes NEA 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.  3256.105  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 an NEA grant or cooperative agreement; or
    (b) NEA awarding official.


Sec.  3256.110  What policies and procedures must I follow?

    (a) General. You must follow the policies and procedures specified 
in the 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 guidance in 2 CFR part 182, this part supplements 
four sections of that 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 part          What the
      Section of OMB guidance            where         supplementation
                                     supplemented         clarifies
------------------------------------------------------------------------
(1) 2 CFR 182.225(a)..............            Sec.  Whom in the NEA a
                                          3256.200   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.  Whom in the NEA a
                                          3256.300   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.  Who in the NEA is
                                          3256.500   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.  Who in the NEA is
                                          3256.505   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 33157]]

    (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, the 
NEA's policies and procedures are the same as those in the OMB 
guidance.

Subpart A--[Reserved]

Subpart B--Requirements for Recipients Other Than Individuals


Sec.  3256.200  Whom in the NEA 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 NEA awarding official or 
other designee for each award that it currently has.

Subpart C--Requirements for Recipients Who Are Individuals


Sec.  3256.300  Whom in the NEA 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 NEA awarding official or other designee 
for each award that he or she currently has.

Subpart D--Responsibilities of NEA Awarding Officials


Sec.  3256.400  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 this 
part, 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.  3256.500  Who in the NEA determines that a recipient other than 
an individual violated the requirements of this part?

    The Chairman of the National Endowment for the Arts is the official 
authorized to make the determination under 2 CFR 182.500.


Sec.  3256.505  Who in the NEA determines that a recipient who is an 
individual violated the requirements of this part?

    The Chairman of the National Endowment for the Arts is the official 
authorized to make the determination under 2 CFR 182.505.

Subpart F--[Reserved]

Title 45--Public Welfare

PART 1155--[REMOVED]

0
2. Under the authority of 20 U.S.C. 959(a)(1), part 1155 is removed.

Kathy N. Daum,
Director, Office of Administrative Services.
[FR Doc. 2015-14163 Filed 6-10-15; 8:45 am]
 BILLING CODE 7537-01-P