Federal Register: November 12, 2009 (Volume 74, Number 217)
DOCID: fr12no09-1 FR Doc E9-27024
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health and Human Services Department
CFR Citation: 2 CFR Part 382
NOTICE: RULES
DOCID: fr12no09-1
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Implementation of OMB Guidance on Drug-Free Workplace Requirements
DATES: This final rule is effective on January 11, 2010 without further action. Written comments must be received on or before 5 p.m. (Eastern Standard Time) on December 14, 2009 on any unintended changes this action makes in HHS policies and procedures for drugfree workplace. All comments on unintended changes will be considered and, if warranted, HHS will revise the rule.
DOCUMENT SUMMARY:
The Department of Health and Human Services (HHS or the Department) is removing its regulation implementing the Governmentwide common rule on drugfree workplace requirements for financial assistance, and issuing a new regulation to adopt Office of 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 drugfree workplace requirements for financial assistance. These changes constitute an administrative simplification that would make no substantive change in HHS policy or procedures for drugfree workplace.
SUMMARY:
Implementation of OMB Guidance on Drug-Free Workplace Requirements
SUPPLEMENTAL INFORMATION
Background
The DrugFree Workplace Act of 1988 [Pub. L. 100690, 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].
On November 26, 2003 [68 FR 66534], the agencies updated the common rule on drugfree workplace requirements and converted it to plain language. Each agency at that time also relocated the drugfree workplace coverage to its own CFR part and removed it from the subpart in the suspension and debarment common rule.
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 drugfree 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 drugfree workplace regulations. A second advantage is that it colocates OMB's guidance and all of the agencies' implementing regulations in 2 CFR.
The Current Regulatory Actions
As the OMB guidance requires, HHS is taking two regulatory actions. First, we are removing the drugfree workplace common rule from 45 CFR part 82. Second, to replace the common rule, we are issuing a brief regulation in 2 CFR part 382 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 changes 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 45 CFR part 82.
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 timesone time by Federal agencies as a common rule in 2002 and a second time by OMB as guidance in 2008and 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 HHS policy or procedures for drugfree 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
[[Page 58190]]
effective on January 11, 2010 without further action, unless we receive
adverse comment by December 14, 2009. 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. 1044)
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 382
Administrative practice and procedure, Drug abuse, Grant programs, Reporting and recordkeeping requirements.
45 CFR Part 82
Administrative practice and procedure, Drug abuse, Grant programs, Reporting and recordkeeping requirements.
Dated: November 2, 2009.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.
Accordingly, for the reasons set forth in the preamble, and under the
authority of 5 U.S.C. 301, HHS amends the Code of Federal Regulations,
Title 2, Subtitle B, chapter III, and Title 45 CFR, chapter I, part 82, as follows:
Title 2Grants and Agreements
1. Add part 382 in Subtitle B, Chapter III, to read as follows: Sec.
PART 382REQUIREMENTS FOR DRUGFREE WORKPLACE (FINANCIAL ASSISTANCE) 382.10 What does this part do?
382.20 Does this part apply to me?
382.30 What policies and procedures must I follow?
Subpart A[Reserved]
Subpart BRequirements for Recipients Other Than Individuals
Sec. 382.225 Whom in HHS does a recipient other than an individual notify about a criminal drug conviction?
Subpart CRequirements for Recipients Who Are Individuals
Sec. 382.300 Whom in HHS does a recipient who is an individual notify about a criminal drug conviction?
Subpart DResponsibilities of Agency Awarding Officials
Sec. 382.400 What method do I use as an agency awarding official to
obtain a recipient's agreement to comply with the OMB guidance? Subpart EViolations of This Part and Consequences
Sec. 382.500 Who in HHS determines that a recipient other than an individual violated the requirements of this part?
Sec. 382.505 Who in HHS determines that a recipient who is an individual violated the requirements of this part?
Subpart F[Reserved]
Authority: 41 U.S.C. 701707.
Sec. 382.10 What does this part do?
This part requires that the award and administration of HHS grants
and cooperative agreements comply with Office of Management and Budget
(OMB) guidance implementing the portion of the DrugFree Workplace Act
of 1988 (41 U.S.C. 701707, 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 HHS grants and cooperative agreements; and
(b) Establishes HHS 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. 382.20 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 an HHS grant or cooperative agreement; or (b) HHS awarding official.
Sec. 382.30 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 part
Section of OMB guidance where supplemented What the supplementation clarifies
(1) 2 CFR 182.225(a)................. Sec. 382.225......... Whom in HHS 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. 382.300......... Whom in HHS 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. 382.500......... Who in HHS 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. [[Page 58191]]
(4) 2 CFR 182.505.................... Sec. 382.505......... Who in HHS 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, HHS
policies and procedures are the same as those in the OMB guidance. Subpart A[Reserved]
Subpart BRequirements for Recipients Other Than Individuals
Sec. 382.225 Whom in HHS does a recipient other than an individual notify about a criminal 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 HHS office from which it currently has an award.
Subpart CRequirements for Recipients Who Are Individuals
Sec. 382.300 Whom in HHS 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 HHS office from which it currently has an award.
Subpart DResponsibilities of Agency Awarding Officials
Sec. 382.400 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:
Drugfree 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 382, which adopts the
Governmentwide implementation (2 CFR part 182) of sec. 51525158 of the
DrugFree Workplace Act of 1988 (Pub. L. 100690, Title V, Subtitle D; 41 U.S.C. 701707).
Subpart EViolations of This Part and Consequences
Sec. 382.500 Who in HHS determines that a recipient other than an individual violated the requirements of this part?
The agency head is the official authorized to make the determination under 2 CFR 182.500.
Sec. 382.505 Who in HHS determines that a recipient who is an individual violated the requirements of this part?
The agency head is the official authorized to make the determination under 2 CFR 182.505.
Subpart F(Reserved)
Title 45Public Welfare
CHAPTER IDEPARTMENT OF HEALTH AND HUMAN SERVICES
PART 82[REMOVED]
2. Under the authority of 5 U.S.C. 301, remove part 82.
[FR Doc. E927024 Filed 111009; 8:45 am]
BILLING CODE 4151AEP
FOR FURTHER INFORMATION CONTACT
Nancy Weisman at (202) 260-4573, or e- mail her at Nancy.Weisman@hhs.gov.