Federal Register: December 22, 2010 (Volume 75, Number 245)
DOCID: fr22de10-1 FR Doc 2010-32134
ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 2 CFR Part 1536
Docket ID: [Docket No. EPA-HQ-OARM-2010-0922; FRL- 9242-2]
NOTICE: RULES
DOCID: fr22de10-1
ACTION: Approval and Promulgation of Implementation Plans:
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Environmental Protection Agency Implementation of OMB Guidance on Drug-Free Workplace Requirements
DATES: This final rule is effective on December 22, 2010.
DOCUMENT SUMMARY:
The Environmental Protection Agency is removing its regulation implementing the Governmentwide common rule on drugfree workplace requirements for financial assistance. 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 Environmental Protection Agency policy or procedures for drugfree workplace.
SUMMARY:
Implementation of OMB Guidance on Drug Free Workplace Requirements
SUPPLEMENTAL INFORMATION
I. General Information
Affected Entities: Entities that receive grants from EPA. II. 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].
The agencies proposed an update to the drugfree 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 drugfree workplace requirements in 41 U.S.C. 702 [Pub. L. 10585, 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 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 collocates OMB's guidance and all of the agencies' implementing regulations in 2 CFR.
Conclusion
As the OMB guidance requires, the Environmental Protection Agency is taking two regulatory actions. First, we are removing the drugfree workplace common rule from 40 CFR part 36. Second, to replace the common rule, we are issuing a brief regulation in 2 CFR part 1536 to adopt the Governmentwide policies and procedures in the OMB guidance.
Statutory and Executive Order Reviews: OMB has determined under
Executive Order 12866 (58 FR 51735, October 4, 1993), that this action
is not a ``significant regulatory action.'' Because this grants rule is
not subject to notice and comment requirements under the Administrative
Procedure Act or any other statute, it is not subject to the Regulatory
Flexibility Act (5 U.S.C. 601 et.). Today's rule contains no Federal
mandates (under the regulatory provisions of Title 2 of the Unfunded
Mandates Reform Act of 1999 (UMRA)) for State, local, or tribal
governments or the private sector that would subject the rule to
Sections 202 and 205 of the UMRA) (Pub. L. 1044). The rule imposes no
enforceable duty on any State, local, or Tribal governments or the
private sector. In addition, this rule does not significantly or
uniquely affect small governments. This action does not have tribal
implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This final rule is
[[Page 80288]]
solely an administrative simplification that would make no substantive
change in Environmental Protection Agency policy or procedures for
drugfree workplace. Thus, Executive Order 13175 (63 FR 67249, November
9, 2000) does not apply to this action. EPA interprets Executive Order
13045 (62 FR 19885, April 23, 1997) as applying only to those
regulatory actions that concern health or safety risks, such that the
analysis required under section 5501 of the Executive Order has the
potential to influence the regulation. This action is not subject to
Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks. This rule will
not have federalism implications, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999). Executive Order 12898 (59 FR 7629
(February 16, 1994)) establishes Federal executive policy on
environmental justice. EPA has determined that this rule will not have
disproportionately high and adverse human health or environmental
effects on minority or lowincome populations because it is a grant
rule that does not affect the level of protection provided to human
health or the environment. This rule is not a ``significant energy
action'' as defined in Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355 (May 22, 2001)) because it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Further, we have concluded that this rule is not likely to have
any adverse energy effects. This rule does not involve technical
standards; thus, the requirements of Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do
not apply. This rule does not impose an additional information
collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Congressional Review Act: The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before certain actions may take effect, the agency promulgating the action must submit a report, which includes a copy of the action, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be effective on December 22, 2010. List of Subjects
2 CFR Part 1536
Administrative practice and procedure, Drug abuse, Grant programs, Reporting and recordkeeping requirements.
40 CFR Part 36
Governmentwide requirements for drugfree workplace (financial assistance).
Dated: December 16, 2010.
Howard Corcoran,
Director, Office of Grants and Debarment.
Accordingly, for the reasons set forth in the preamble, and under the
authority of 5 U.S.C. 301, the Environmental Protection Agency amends
the Code of Federal Regulations, Title 2, Subtitle B, Chapter XV, Part 1536, and Title 40, Chapter I, Part 36, as follows:
Title 2Grants and Agreements
1. Add Part 1536 in Subtitle B, Chapter XV, to read as follows: PART 1536REQUIREMENTS FOR DRUGFREE WORKPLACE (FINANCIAL
ASSISTANCE)
Sec.
1536.10 What does this part do?
1536.20 Does this part apply to me?
1536.30 What policies and procedures must I follow?
Subpart APurpose and Coverage [Reserved.]
Subpart BRequirements for Recipients Other Than Individuals
1536.225 Whom in the Environmental Protection Agency does a
recipient other than an individual notify about a criminal drug conviction?
Subpart CRequirements for Recipients Who Are Individuals
1536.300 Whom in the Environmental Protection Agency does a
recipient who is an individual notify about a criminal drug conviction?
Subpart DResponsibilities of Agency Awarding Officials
1536.400 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
1536.500 Who in the Environmental Protection Agency determines that
a recipient other than an individual violated the requirements of this part?
1536.505 Who in the Environmental Protection Agency determines that
a recipient who is an individual violated the requirements of this part?
Authority: 41 U.S.C. 701707.
Sec. 1536.10 What does this part do?
This part requires that the award and administration of
Environmental Protection Agency 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 Environmental Protection Agency's grants and cooperative agreements; and
(b) Establishes Environmental Protection Agency 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. 1536.20 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 Environmental Protection Agency grant or cooperative agreement; or
(b) Environmental Protection Agency awarding official.
Sec. 1536.30 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 80289]]
Section in this
Section of OMB guidance part where What the supplementation clarifies
supplemented
(1) 2 CFR 182.225(a).................................... Sec. 1536.225 Whom in the Environmental
Protection Agency 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. 1536.300 Whom in the Environmental
Protection Agency 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. 1536.500 Who in the Environmental Protection
Agency 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. 1536.505 Who in the Environmental Protection
Agency 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,
Environmental Protection Agency policies and procedures are the same as those in the OMB guidance.
Subpart APurpose and Coverage [Reserved.]
Subpart BRequirements for Recipients Other Than Individuals
Sec. 1536.225 Whom in the Environmental Protection Agency 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 EPA award official from
each Environmental Protection Agency office from which it currently has an award.
Subpart CRequirements for Recipients Who Are Individuals
Sec. 1536.300 Whom in the Environmental Protection Agency 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 EPA award official from each Environmental
Protection Agency office from which it currently has an award. Subpart DResponsibilities of Agency Awarding Officials
Sec. 1536.400 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 2 CFR Subtitle B, Chapter XV, Part
1536, 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. 1536.500 Who in the Environmental Protection Agency determines
that a recipient other than an individual violated the requirements of this part?
The EPA Administrator or designee is the official authorized to make the determination under 2 CFR 182.500.
Sec. 1536.505 Who in the Environmental Protection Agency determines
that a recipient who is an individual violated the requirements of this part?
The EPA Administrator or designee is the official authorized to make the determination under 2 CFR 182.505.
Title 40Protection of Environment
Chapter I
PART 36[REMOVED]
2. Remove Part 36.
[FR Doc. 201032134 Filed 122110; 8:45 am]
BILLING CODE 656050P
FOR FURTHER INFORMATION CONTACT
Elizabeth January, Environmental Protection Agency, 5 Post Office Square, Boston, MA 02109, by phone (617) 9188655 or by email (january.elizabeth@epa.gov).