Department of the Interior Implementation of OMB Guidance on Drug-Free Workplace Requirements (Financial Assistance), 71007-71012 [2010-29371]
Download as PDF
<![CDATA[
71007
Rules and Regulations
Federal Register
Vol. 75, No. 224
Monday, November 22, 2010
DEPARTMENT OF THE INTERIOR
Regulation Identifier Number (RIN)
1093–AA12 in your message. Follow the
instructions on the Web site for
submitting comments.
FOR FURTHER INFORMATION CONTACT:
Anita Hairston, Financial Assistance
Program Manager, Department of the
Interior, Office of Acquisition and
Property Management, telephone (202)
208–3433, fax (202) 219–4244, or e-mail
anita_hairston@ios.doi.gov.
SUPPLEMENTARY INFORMATION:
Office of the Secretary
Background
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
2 CFR Part 1401
43 CFR Part 43
RIN 1093–AA12
Department of the Interior
Implementation of OMB Guidance on
Drug-Free Workplace Requirements
(Financial Assistance)
Office of the Secretary, Interior.
Final rule with request for
comments.
AGENCY:
ACTION:
The Department of the
Interior (DOI) is removing its regulation
implementing the government-wide
common rule on drug-free workplace
requirements for financial assistance
and issuing a new regulation to adopt
the Office of Management and Budget
(OMB) guidance. This regulatory action
implements the OMB’s initiative to
streamline and consolidate into one title
of the Code of Federal Regulations all
Federal regulations on drug-free
workplace requirements for financial
assistance. These changes constitute an
administrative simplification that will
make no substantive change in DOI
policy or procedures for drug-free
workplace.
SUMMARY:
This final rule is effective on
January 21, 2011 without further action.
Submit comments by December 22,
2010 on any unintended changes this
action makes in Department of the
Interior policies and procedures for
drug-free workplace. All comments on
unintended changes will be considered
and, if warranted, DOI will revise the
rule.
jlentini on DSKJ8SOYB1PROD with RULES
DATES:
You may submit comments,
on the rulemaking through the Federal
eRulemaking Portal at https://
www.regulations.gov. Please use the
ADDRESSES:
VerDate Mar<15>2010
15:58 Nov 19, 2010
Jkt 223001
The Drug-Free Workplace Act of 1988
[Pub. L. 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
[53 FR 4946, January 31, 1989]. The rule
was a subpart of the government-wide
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
cooperative 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 non-procurement
suspension and debarment in 2 CFR
part 180.
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
As the next step in that process, OMB
proposed [73 FR 55776, September 26,
2008] and finalized [74 FR 28149, June
15, 2009] government-wide 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 government-wide 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, DOI is
taking two regulatory actions. First, we
are removing the drug-free workplace
common rule from 43 CFR part 43.
Second, to replace the common rule, we
are issuing a brief regulation in 2 CFR,
Subtitle B, Chapter XIV, part 1401 to
adopt the government-wide 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 DOI common
rule at 43 CFR part 43.
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.
E:\FR\FM\22NOR1.SGM
22NOR1
71008
Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations
This direct final rule is solely an
administrative simplification that would
make no substantive change in the DOI
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). This rule will be effective on
January 21, 2011 without further action,
unless we receive adverse comment by
December 22, 2010. 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
This document is not a significant
rule and is not subject to review by the
Office of Management and Budget under
Executive Order 12866.
(1) This rule will not have an effect of
$100 million or more on the economy.
It will not adversely affect in a material
way the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
or Tribal governments or communities.
(2) This rule will not create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency.
(3) This rule does not alter the
budgetary effects or entitlements, grants,
user fees, or loan programs or the rights
or obligations of their recipients.
(4) This rule does not raise novel legal
or policy issues.
Regulatory Flexibility Act of 1980
(5 U.S.C. 605(b))
DOI certifies that this document will
not have a significant economic effect
on a substantial number of small entities
under the Regulatory Flexibility Act,
5 U.S.C. 601 et seq.
jlentini on DSKJ8SOYB1PROD with RULES
Small Business Regulatory Enforcement
Fairness Act (SBREFA)
This rule is not a major rule under
5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
This rule:
a. Does not have an annual effect on the
economy of $100 million or more.
b. Does not represent a major increase in
costs or prices for consumers, individual
industries, Federal, State, or local
government agencies, or geographic regions.
c. Does not have significant adverse effects
on competition, employment, investment,
productivity, innovation, or the ability of
U.S.-based enterprises to compete with
foreign-based enterprises.
VerDate Mar<15>2010
15:58 Nov 19, 2010
Jkt 223001
Unfunded Mandates Act of 1995
(Sec. 202, Pub. L. 104–4)
This rule does not impose an
unfunded mandate on State, local, or
Tribal governments or the private sector
of more than $100 million per year. The
rule does not have a significant or
unique effect on State, local or Tribal
governments or the private sector. A
statement containing the information
required by the Unfunded Mandates
Reform Act, 2 U.S.C. 1531 et seq., is not
required.
Takings (E.O. 12630)
In accordance with Executive Order
12630, the rule does not have significant
takings implications. A takings
implication assessment is not required.
Paperwork Reduction Act of 1995
(44 U.S.C., Chapter 35)
This regulation does not require an
information collection from 10 or more
parties and a submission under the
Paperwork Reduction Act is not
required. An OMB form 83–I is not
required.
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.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order
12988, this rule does not unduly burden
the judicial system and meets the
requirements of sections 3(a) and 3(b)(2)
of the Order.
List of Subjects
2 CFR Part 1401
Administrative practice and
procedure, Drug abuse, Grant programs,
Reporting and recordkeeping
requirements.
43 CFR Part 43
Administrative practice and
procedure, Drug abuse, Grant programs,
Reporting and recordkeeping
requirements.
Pamela Haze,
Acting Assistant Secretary for Policy,
Management and Budget.
Accordingly, for the reasons set forth
in the preamble, and under the
authority of 5 U.S.C. 301, the
Department of the Interior amends 2
CFR, Subtitle B, Chapter XIV, part 1401,
and 43 CFR part 43 as follows:
■
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
TITLE 2—GRANTS AND AGREEMENTS
1. In Subtitle B, Chapter XIV, add new
part 1401 to read as follows:
■
PART 1401—REQUIREMENTS FOR
DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)
Sec.
Subpart A—Purpose and Coverage
1401.100 What does this part do?
1401.105 Does this part apply to me?
1401.110 What policies and procedures
must I follow?
1401.115 Are any of my Federal assistance
awards exempt from this part?
1401.120 Does this part affect the Federal
contracts that I receive?
Subpart B—Definitions
1401.205 Award.
1401.210 Controlled substance.
1401.215 Conviction.
1401.220 Cooperative agreement.
1401.225 Criminal drug statue.
1401.230 Debarment.
1401.235 Drug-free workplace.
1401.240 Employee.
1401.245 Federal agency or agency.
1401.250 Grant.
1401.255 Individual.
1401.260 Recipient.
1401.265 State.
1401.270 Suspension.
Subpart C—Requirements for Recipients
Other Than Individuals
1401.300 What must I do to comply with
this part?
1401.305 What must I include in my drugfree workplace statement?
1401.310 To whom must I distribute my
drug-free workplace statement?
1401.315 What must I include in my drugfree awareness program?
1401.320 By when must I publish my drugfree workplace statement and establish
my drug-free awareness program?
1401.325 What actions must I take
concerning employees who are convicted
of drug violations in the workplace?
1401.330 How and when must I identify
workplaces?
1401.335 Whom in the DOI does a recipient
other than an individual notify about a
criminal drug conviction?
Subpart D—Requirements for Recipients
Who Are Individuals
1401.400 What must I do to comply with
this part if I am an individual recipient?
1401.401 Whom in the DOI does a recipient
who is an individual notify about a
criminal drug conviction?
Subpart E—Responsibilities of Department
of the Interior Awarding Officials
1401.500 What are my responsibilities as a
DOI awarding official?
Subpart F—Violations of this Part and
Consequences
1401.600 How are violations of this part
determined for recipients other than
individuals?
E:\FR\FM\22NOR1.SGM
22NOR1
71009
Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations
1401.605 How are violations of this part
determined for recipients who are
individuals?
1401.610 What actions will the Federal
Government take against a recipient
determined to have violated this part?
1401.615 Are there any exceptions to those
actions?
Authority: 5 U.S.C. 301; 31 U.S.C. 6101
note, 7501; 41 U.S.C. 252a; 41 U.S.C. 701–
707.
(a) Gives regulatory effect to the OMB
guidance (Subparts A through F of 2
CFR Part 182) for DOI’s grants and
cooperative agreements; and
(b) Establishes DOI 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
government-wide implementing
regulations.
Subpart A—Purpose and Coverage
§ 1401.105
§ 1401.100
What does this part do?
This part requires that the award and
administration of the DOI 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
(hereinafter, ‘‘the Act’’) that applies to
grants. It thereby—
This part and, through this part,
pertinent portions of the OMB guidance
in Subparts A through F of 2 CFR part
182 apply if you are—
(a) A recipient of an assistance award
from the Department of the Interior; or
(b) The Department of the Interior
awarding official.
The following table (will be
incorporated into 2 CFR part 182) shows
the subparts that apply to you:
Section in this
part where
supplemented
Section of OMB guidance
(1) 2 CFR 182.225(a) ..............................
§ 1401.401
(3) 2 CFR 182.500 ..................................
§ 1401.600
(4) 2 CFR 182.505 ..................................
§ 1401.605
(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,
DOI policies and procedures are the
same as those in the OMB guidance.
§ 1401.115 Are any of my Federal
assistance awards exempt from this part?
This part does not apply to any award
if the Director, Office of Acquisition and
Property Management (PAM),
determines that the application of this
part would be inconsistent with the
international obligations of the United
States or the laws or regulations of a
foreign government.
§ 1401.120 Does this part affect the
Federal contracts that I receive?
It will affect future contract awards
indirectly if you are debarred or
suspended for a violation of the
requirements of this part, as described
in § 1401.610(c). However, this part
does not directly apply to procurement
contracts. The portion of the Drug-Free
Workplace Act of 1988 that applies to
VerDate Mar<15>2010
15:58 Nov 19, 2010
Jkt 223001
See subparts
(1) A recipient who is not an
individual.
(2) A recipient who is an individual.
(3) A Department of the Interior awarding official.
A, C and F.
A, D and F.
A, E and F.
§ 1401.110 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) In implementing 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 set forth in the OMB
guidance, as supplemented by this part.
What the supplementation clarifies
§ 1401.335
(2) 2 CFR 182.300(b) ..............................
jlentini on DSKJ8SOYB1PROD with RULES
Does this part apply to me?
If you are
Whom in the DOI a recipient other than an individual must notify if an employee
is convicted for a violation of a criminal drug statute in the workplace.
Whom in the DOI 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.
Who in the DOI 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.
Who in the DOI 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.
Subpart F—Definitions
(6) Direct appropriations.
(7) Veterans’ benefits to individuals
(i.e., any benefit to veterans, their
families, or survivors by virtue of the
service of a veteran in the Armed Forces
of the United States).
§ 1401.205
§ 1401.210
Federal procurement contracts is carried
out through the Federal Acquisition
Regulation in 48 CFR part 23, subpart
23.5.
Award.
Award means an award of financial
assistance by DOI or other Federal
agency directly to a recipient.
(a) The term award includes:
(1) A Federal grant or cooperative
agreement, in the form of money or
property in lieu of money.
(2) A block grant or a grant in an
entitlement program, whether or not the
grant is exempted from coverage under
the Departmental rules at 43 CFR part
12, subpart C, ‘‘Uniform Administrative
Requirements for Grants and
Cooperative Agreements to State and
Local Governments.’’
(b) The term award does not include:
(1) Technical assistance that provides
services instead of money.
(2) Loans.
(3) Loan guarantees.
(4) Interest subsidies.
(5) Insurance.
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
Controlled substance.
Controlled substance means any
controlled substance identified in
schedules I through V of the Controlled
Substances Act, 21 U.S.C. 812, and as
further defined by regulations at 21 CFR
1308.11 through 1308.15.
§ 1401.215
Conviction.
Conviction means a finding of guilt
(including a plea of nolo contendere) or
imposition of sentence, or both, by any
judicial body charged with the
responsibility to determine violations of
the Federal or State criminal drug
statutes.
§ 1401.220
Cooperative agreement.
Cooperative agreement means an
award of financial assistance that,
consistent with 31 U.S.C. 6305, is used
to enter into the same kind of
relationship as a grant (see definition of
E:\FR\FM\22NOR1.SGM
22NOR1
71010
Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations
grant in section 1401.250), except that
substantial involvement is expected
between the Federal agency and the
recipient when carrying out the activity
contemplated by the award. The term
does not include cooperative research
and development agreements as defined
in 15 U.S.C. 3710a.
§ 1401.225
Criminal drug statute.
Criminal drug statute means a Federal
or non-Federal criminal statute
involving the manufacture, distribution,
dispensing, use, or possession of any
controlled substance.
§ 1401.230
Debarment.
Debarment means an action taken by
a Federal agency to prohibit a recipient
from participating in Federal
Government procurement contracts and
covered non-procurement transactions.
A recipient so prohibited is debarred, in
accordance with the Federal Acquisition
Regulation for procurement contracts
(48 CFR part 9, subpart 9.4) and 2 CFR
part 180.
§ 1401.235
Drug-free workplace.
Drug-free workplace means a site for
the performance of work done in
connection with a specific award at
which employees of the recipient are
prohibited from engaging in the
unlawful manufacture, distribution,
dispensing, possession, or use of a
controlled substance.
§ 1401.240
Employee.
jlentini on DSKJ8SOYB1PROD with RULES
(a) Employee means the employee of
a recipient directly engaged in the
performance of work under the award,
including—
(1) All direct charge employees;
(2) All indirect charge employees,
unless their impact or involvement in
the performance of work under the
award is insignificant to the
performance of the award; and
(3) Temporary personnel and
consultants who are directly engaged in
the performance of work under the
award and who are on the recipient’s
payroll.
(b) This definition does not include
workers not on the payroll of the
recipient (e.g., volunteers, even if used
to meet a matching requirement;
consultants or independent contractors
not on the payroll; or employees of subrecipients or subcontractors in covered
workplaces).
§ 1401.245
Federal agency or agency.
Federal agency or agency means any
United States executive department,
military department, government
corporation, government controlled
corporation, any other establishment in
the executive branch (including the
VerDate Mar<15>2010
15:58 Nov 19, 2010
Jkt 223001
Executive Office of the President), or
any independent regulatory agency.
§ 1401.250
Grant.
Grant means an award of financial
assistance that, consistent with 31
U.S.C. 6304, is used to enter into a
relationship whereby—
(a) The principal purpose of which is
to transfer a thing of value to the
recipient to carry out a public purpose
of support or stimulation authorized by
a law of the United States, rather than
to acquire property or services for the
Federal Government’s direct benefit or
use; and
(b) In which substantial involvement
is not expected between the Federal
agency and the recipient when carrying
out the activity contemplated by the
award.
§ 1401.255
Individual.
Individual means a natural person.
§ 1401.260
Recipient.
Recipient means any individual,
corporation, partnership, association,
unit of government (except a Federal
agency) or legal entity, however
organized, that receives an award
directly from a Federal agency.
§ 1401.265
State.
State means any of the States of the
United States, the District of Columbia,
the Commonwealth of Puerto Rico, or
any territory or possession of the United
States.
§ 1401.270
Suspension.
Suspension means an action taken by
a Federal agency that immediately
prohibits a recipient from participating
in Federal Government procurement
contracts and covered non-procurement
transactions for a temporary period,
pending completion of an investigation
and any judicial or administrative
proceedings that may ensue. A recipient
so prohibited is suspended, in
accordance with the Federal Acquisition
Regulation for procurement contracts
(48 CFR part 9, subpart 9.4) and 2 CFR
part 180. Suspension of a recipient is a
distinct and separate action from
suspension of an award or suspension of
payments under an award.
Subpart C—Requirements for
Recipients Other Than Individuals
§ 1401.300
this part?
What must I do to comply with
There are two general requirements if
you are a recipient other than an
individual.
(a) First, you must make a good faith
effort, on a continuing basis, to maintain
a drug-free workplace. You must agree
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
to do so as a condition for receiving any
award covered by this part. The specific
measures that you must take in this
regard are described in more detail in
subsequent sections of this subpart.
Briefly, those measures are to—
(1) Publish a drug-free workplace
statement and establish a drug-free
awareness program for your employees;
and
(2) Take actions concerning
employees who are convicted of
violating drug statutes in the workplace.
(b) Second, you must identify all
known workplaces under your Federal
awards.
§ 1401.305 What must I include in my
drug-free workplace statement?
You must publish a statement that—
(a) Tells your employees that the
unlawful manufacture, distribution,
dispensing, possession, or use of a
controlled substance is prohibited in
your workplace;
(b) Specifies the actions that you will
take against employees for violating that
prohibition; and
(c) Lets each employee know that, as
a condition of employment under any
award, he or she:
(1) Will abide by the terms of the
statement; and
(2) Must notify you in writing if he or
she is convicted for a violation of a
criminal drug statute occurring in the
workplace and must do so no more than
five calendar days after the conviction.
§ 1401.310 To whom must I distribute my
drug-free workplace statement?
You must require that a copy of the
statement described in § 1401.305 be
given to each employee who will be
engaged in the performance of any
Federal award.
§ 1401.315 What must I include in my
drug-free awareness program?
You must establish an ongoing drugfree awareness program to inform
employees about—
(a) The dangers of drug abuse in the
workplace;
(b) Your policy of maintaining a drugfree workplace;
(c) Any available drug counseling,
rehabilitation, and employee assistance
programs; and
(d) The penalties that you may impose
upon them for drug abuse violations
occurring in the workplace.
§ 1401.320 By when must I publish my
drug-free workplace statement and
establish my drug-free awareness
program?
If you are a new recipient that does
not already have a policy statement as
described in § 1401.305 and an ongoing
E:\FR\FM\22NOR1.SGM
22NOR1
Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations
awareness program as described in
§ 1401.315, you must publish the
71011
statement and establish the program by
the time given in the following table:
If . . .
then you . . .
(a) The performance period of the award is less than 30 days ..............
must have the policy statement and program in place as soon as possible, but before the date on which performance is expected to be
completed.
must have the policy statement and program in place within 30 days
after award.
may ask the Department of the Interior awarding official to give you
more time to do so. The amount of additional time, if any, to be
given is at the discretion of the awarding official.
(b) The performance period of the award is 30 days or more ................
(c) You believe there are extraordinary circumstances that will require
more than 30 days for you to publish the policy statement and establish the awareness program.
§ 1401.325 What actions must I take
concerning employees who are convicted
of drug violations in the workplace?
There are two actions you must take
if an employee is convicted of a drug
violation in the workplace:
(a) First, you must notify Federal
agencies if an employee who is engaged
in the performance of an award informs
you about a conviction, as required by
§ 1401.305(c)(2), or you otherwise learn
of the conviction. Your notification to
the Federal agencies must—
(1) Be in writing;
(2) Include the employee’s position
title;
(3) Include the identification
number(s) of each affected award;
(4) Be sent within ten calendar days
after you learn of the conviction; and
(5) Be sent to every Federal agency on
whose award the convicted employee
was working. It must be sent to every
awarding official or his or her official
designee, unless the Federal agency has
specified a central point for the receipt
of the notices.
(b) Second, within 30 calendar days of
learning about an employee’s
conviction, you must either—
(1) Take appropriate personnel action
against the employee, up to and
including termination, consistent with
the requirements of the Rehabilitation
Act of 1973, 29 U.S.C. 794, as amended;
or
(2) Require the employee to
participate satisfactorily in a drug abuse
assistance or rehabilitation program
approved for these purposes by a
Federal, State or local health, law
enforcement, or other appropriate
agency.
jlentini on DSKJ8SOYB1PROD with RULES
§ 1401.330 How and when must I identify
workplaces?
(a) You must identify all known
workplaces under each DOI award. A
failure to do so is a violation of your
drug-free workplace requirements. You
may identify the workplaces—
(1) To the DOI official that is making
the award, either at the time of
application or upon award; or
VerDate Mar<15>2010
15:58 Nov 19, 2010
Jkt 223001
(2) In documents that you keep on file
in your offices during the performance
of the award, in which case you must
make the information available for
inspection upon request by DOI officials
or their designated representatives.
(b) Your workplace identification for
an award must include the actual
address of buildings (or parts of
buildings) or other sites where work
under the award takes place. Categorical
descriptions may be used (e.g., all
vehicles of a mass transit authority or
State highway department while in
operation, State employees in each local
unemployment office, performers in
concert halls or radio studios).
(c) If you identified workplaces to the
DOI awarding official at the time of
application or award, as described in
paragraph (a)(1) of this section, and any
workplace that you identified changes
during the performance of the award,
you must inform the DOI awarding
official.
§ 1401.335 Whom in the DOI does a
recipient other than an individual notify
about a criminal drug conviction?
The DOI is not designating a central
location for the receipt of these reports.
Therefore you shall provide this report
to every grant officer, or other designee
within a bureau or office of the
Department on whose grant activity the
convicted employee was working.
Subpart D—Requirements for
Recipients Who Are Individuals
§ 1401.400 What must I do to comply with
this part if I am an individual recipient?
As a condition of receiving a DOI
award, if you are an individual
recipient, you must agree that—
(a) You will not engage in the
unlawful manufacture, distribution,
dispensing, possession, or use of a
controlled substance in conducting any
activity related to the award; and
(b) If you are convicted of a criminal
drug offense resulting from a violation
occurring during the conduct of any
award activity, you will report the
conviction:
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
(1) In writing.
(2) Within 10 calendar days of the
conviction.
(3) To the Department of the Interior
awarding official or other designee for
each award that you currently have,
unless § 1401.401 or the award
document designates a central point for
the receipt of the notices. When notice
is made to a central point, it must
include the identification number(s) of
each affected award.
§ 1401.401 Whom in the DOI does a
recipient who is an individual notify about
a criminal drug conviction?
The DOI is not designating a central
location for the receipt of these reports.
Therefore you shall provide this report
to every grant officer, or other designee
within a bureau or office of the
Department on whose grant activity the
convicted employee was working.
Subpart E—Responsibilities of DOI
Awarding Officials
§ 1401.500 What are my responsibilities as
a DOI awarding official?
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 1401,
which adopts the government-wide
implementation of 2 CFR part 182; sections
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 F—Violations of this Part and
Consequences
§ 1401.600 How are violations of this part
determined for recipients other than
individuals?
A recipient other than an individual
is in violation of the requirements of
this part if the Director, PAM
determines, in writing, that—
(a) The recipient has violated the
requirements of subpart B of this part;
or
E:\FR\FM\22NOR1.SGM
22NOR1
71012
Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 / Rules and Regulations
(b) The number of convictions of the
recipient’s employees for violating
criminal drug statutes in the workplace
is large enough to indicate that the
recipient has failed to make a good faith
effort to provide a drug-free workplace.
§ 1401.605 How are violations of this part
determined for recipients who are
individuals?
An individual recipient is in violation
of the requirements of this part if the
Director, PAM determines, in writing,
that—
(a) The recipient has violated the
requirements of subpart C of this part;
or
(b) The recipient is convicted of a
criminal drug offense resulting from a
violation occurring during the conduct
of any award activity.
§ 1401.610 What actions will the Federal
Government take against a recipient
determined to have violated this part?
If a recipient is determined to have
violated this part, as described in
§ 1401.600 or § 1401.605, DOI may take
one or more of the following actions—
(a) Suspension of payments under the
award;
(b) Suspension or termination of the
award; and
(c) Suspension or debarment of the
recipient under 2 CFR part 180, for a
period not to exceed five years.
§ 1401.615 Are there any exceptions to
those actions?
The Secretary of the Interior may
waive with respect to a particular
award, in writing, a suspension of
payments under an award, suspension
or termination of an award, or
suspension or debarment of a recipient
if the Secretary of the Interior
determines that such a waiver would be
in the public interest. This exception
authority cannot be delegated to any
other official.
TITLE 43—PUBLIC LANDS
■
2. In title 43, remove part 43.
[FR Doc. 2010–29371 Filed 11–19–10; 8:45 am]
BILLING CODE 4310–RK–P
FEDERAL FINANCIAL INSTITUTIONS
EXAMINATION COUNCIL
jlentini on DSKJ8SOYB1PROD with RULES
12 CFR Part 1101
[FFIEC–2010–0002]
Description of Office, Procedures, and
Public Information
Federal Financial Institutions
Examination Council.
AGENCY:
VerDate Mar<15>2010
15:58 Nov 19, 2010
Jkt 223001
ACTION:
Final rule.
The Federal Financial
Institutions Examination Council
(Council or FFIEC), on behalf of its
members, is amending its Freedom of
Information Act (FOIA) regulations.
Among other things, this final rule
revises the procedures to be used by
members of the public in requesting
records maintained by the Council, the
time limits in which the Council must
make a determination on disclosure in
response to a request for records, and
the time period in which a requester has
the right to administratively appeal any
adverse determination made on a
request for records, and provides
procedures to be used to request
expedited processing of FOIA requests.
DATES: Effective November 22, 2010.
FOR FURTHER INFORMATION CONTACT: Paul
Sanford, Executive Secretary, Federal
Financial Institutions Examination
Council, via telephone: (703) 516–5590,
or via e-mail: PaSanford@FDIC.gov.
SUPPLEMENTARY INFORMATION: The
Council is publishing a final rule
revising its regulations implementing
the FOIA. On September 3, 2010, the
Council published for comment a notice
of proposed rulemaking (NPRM) in the
Federal Register that proposed revisions
to the Council’s regulations at 12 CFR
part 1101, implementing the FOIA, 5
U.S.C. 552, as amended. 75 FR 54052,
September 3, 2010. Interested persons
were afforded an opportunity to
participate in the rulemaking process
through submission of written
comments on the NPRM. The Council
received no public comments. The
Council has reviewed the proposed
regulations and adopts them in this final
rule.
SUMMARY:
I. Background
The Council makes a number of
substantive and technical changes to its
regulations implementing the FOIA (5
U.S.C. 552, as amended) that fall within
two general categories. First, the
Council modifies its existing regulations
to reflect the amendments to the FOIA
contained in the Electronic Freedom of
Information Act Amendments of 1996,
Public Law 104–231, 110 Stat. 3048, and
the OPEN Government Act, Public Law
110–175, 121 Stat. 2524. The Electronic
Freedom of Information Act
Amendments increased the FOIA’s basic
time limit for agency responses to FOIA
requests, and provided for expedited
processing of FOIA requests under
certain conditions, among other
procedural revisions. The OPEN
Government Act also amended various
FOIA administrative procedures, such
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
as when an agency may toll the
statutory time for responding to FOIA
requests, and how to indicate
exemptions authorizing deletion of
materials under the FOIA on a
responsive record.
Second, the Council revises its
regulations to further clarify its policies
and procedures relating to the
processing of FOIA requests and the
administration of its FOIA operations.
II. Section-by-Section Analysis
In 12 CFR 1101.3(e), the Council
revises the paragraph by providing the
current address of the Council’s offices.
In 12 CFR 1101.4(a), the Council
revises the paragraph by providing the
current address of the Council’s offices
and clarifying that Council policies and
interpretations may be withheld from
disclosure under exemptions to the
FOIA.
In 12 CFR 1101.4(b), the Council
revises the wording of the section
heading.
In 12 CFR 1101.4(b)(1), the Council
revises the wording of the paragraph to
explain that Council records that are not
published in the Federal Register or
available for inspection and copying at
the Council’s offices are available to the
public upon request, except to the
extent that such records are exempt
from disclosure under the FOIA.
In 12 CFR 1101.4(b)(1)(i), the Council
capitalizes the word ‘‘Order’’ when
referring to an Executive Order.
In 12 CFR 1101.4(b)(1)(v), the Council
adds language to protect from disclosure
records of deliberations and meetings of
the Council, its committees, and staff,
that are not subject to the Government
in the Sunshine Act, 5 U.S.C. 552b.
In 12 CFR 1101.4(b)(1)(vii), the
Council revises the paragraph by
substituting a reference to the statutory
citation for Exemption 7 of the FOIA,
5 U.S.C. 552(b)(7), for the list of the
specific substantive provisions of the
exemption in the existing regulation. In
addition, the term ‘‘state or federal’’ has
been inserted to clarify that records of
state financial regulatory agencies in the
possession of the Council are exempt
from disclosure under Exemption 7, as
are the records of federal regulatory
agencies.
In 12 CFR 101.4(b)(1)(viii), the
Council revises the paragraph by
eliminating a listing of the types of
financial institutions covered by
Exemption 8 of the FOIA, 5 U.S.C.
552(b)(8), and inserting the term ‘‘state
or federal’’ to clarify that records of state
financial regulatory agencies in the
possession of the Council are exempt
from disclosure under Exemption 8.
E:\FR\FM\22NOR1.SGM
22NOR1
]]>Agencies
[Federal Register Volume 75, Number 224 (Monday, November 22, 2010)]
[Rules and Regulations]
[Pages 71007-71012]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29371]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 75, No. 224 / Monday, November 22, 2010 /
Rules and Regulations
[[Page 71007]]
DEPARTMENT OF THE INTERIOR
Office of the Secretary
2 CFR Part 1401
43 CFR Part 43
RIN 1093-AA12
Department of the Interior Implementation of OMB Guidance on
Drug-Free Workplace Requirements (Financial Assistance)
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior (DOI) is removing its
regulation implementing the government-wide common rule on drug-free
workplace requirements for financial assistance and issuing a new
regulation to adopt the Office of Management and Budget (OMB) guidance.
This regulatory action implements the OMB's initiative to streamline
and consolidate into one title of the Code of Federal Regulations all
Federal regulations on drug-free workplace requirements for financial
assistance. These changes constitute an administrative simplification
that will make no substantive change in DOI policy or procedures for
drug-free workplace.
DATES: This final rule is effective on January 21, 2011 without further
action. Submit comments by December 22, 2010 on any unintended changes
this action makes in Department of the Interior policies and procedures
for drug-free workplace. All comments on unintended changes will be
considered and, if warranted, DOI will revise the rule.
ADDRESSES: You may submit comments, on the rulemaking through the
Federal eRulemaking Portal at https://www.regulations.gov. Please use
the Regulation Identifier Number (RIN) 1093-AA12 in your message.
Follow the instructions on the Web site for submitting comments.
FOR FURTHER INFORMATION CONTACT: Anita Hairston, Financial Assistance
Program Manager, Department of the Interior, Office of Acquisition and
Property Management, telephone (202) 208-3433, fax (202) 219-4244, or
e-mail anita_hairston@ios.doi.gov.
SUPPLEMENTARY INFORMATION:
Background
The Drug-Free Workplace Act of 1988 [Pub. L. 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
[53 FR 4946, January 31, 1989]. The rule was a subpart of the
government-wide 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 cooperative 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] government-wide guidance on non-procurement suspension and
debarment in 2 CFR part 180.
As the next step in that process, OMB proposed [73 FR 55776,
September 26, 2008] and finalized [74 FR 28149, June 15, 2009]
government-wide 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 government-wide 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, DOI is taking two regulatory actions.
First, we are removing the drug-free workplace common rule from 43 CFR
part 43. Second, to replace the common rule, we are issuing a brief
regulation in 2 CFR, Subtitle B, Chapter XIV, part 1401 to adopt the
government-wide 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 DOI common rule at 43 CFR part 43.
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.
[[Page 71008]]
This direct final rule is solely an administrative simplification
that would make no substantive change in the DOI 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). This rule will be effective on January 21,
2011 without further action, unless we receive adverse comment by
December 22, 2010. 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
This document is not a significant rule and is not subject to
review by the Office of Management and Budget under Executive Order
12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects or entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
(4) This rule does not raise novel legal or policy issues.
Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))
DOI certifies that this document will not have a significant
economic effect on a substantial number of small entities under the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million
or more.
b. Does not represent a major increase in costs or prices for
consumers, individual industries, Federal, State, or local
government agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or Tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform
Act, 2 U.S.C. 1531 et seq., is not required.
Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required.
Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)
This regulation does not require an information collection from 10
or more parties and a submission under the Paperwork Reduction Act is
not required. An OMB form 83-I is not required.
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.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, this rule does not unduly
burden the judicial system and meets the requirements of sections 3(a)
and 3(b)(2) of the Order.
List of Subjects
2 CFR Part 1401
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
43 CFR Part 43
Administrative practice and procedure, Drug abuse, Grant programs,
Reporting and recordkeeping requirements.
Pamela Haze,
Acting Assistant Secretary for Policy, Management and Budget.
0
Accordingly, for the reasons set forth in the preamble, and under the
authority of 5 U.S.C. 301, the Department of the Interior amends 2 CFR,
Subtitle B, Chapter XIV, part 1401, and 43 CFR part 43 as follows:
TITLE 2--GRANTS AND AGREEMENTS
0
1. In Subtitle B, Chapter XIV, add new part 1401 to read as follows:
PART 1401--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL
ASSISTANCE)
Sec.
Subpart A--Purpose and Coverage
1401.100 What does this part do?
1401.105 Does this part apply to me?
1401.110 What policies and procedures must I follow?
1401.115 Are any of my Federal assistance awards exempt from this
part?
1401.120 Does this part affect the Federal contracts that I receive?
Subpart B--Definitions
1401.205 Award.
1401.210 Controlled substance.
1401.215 Conviction.
1401.220 Cooperative agreement.
1401.225 Criminal drug statue.
1401.230 Debarment.
1401.235 Drug-free workplace.
1401.240 Employee.
1401.245 Federal agency or agency.
1401.250 Grant.
1401.255 Individual.
1401.260 Recipient.
1401.265 State.
1401.270 Suspension.
Subpart C--Requirements for Recipients Other Than Individuals
1401.300 What must I do to comply with this part?
1401.305 What must I include in my drug-free workplace statement?
1401.310 To whom must I distribute my drug-free workplace statement?
1401.315 What must I include in my drug-free awareness program?
1401.320 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
1401.325 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
1401.330 How and when must I identify workplaces?
1401.335 Whom in the DOI does a recipient other than an individual
notify about a criminal drug conviction?
Subpart D--Requirements for Recipients Who Are Individuals
1401.400 What must I do to comply with this part if I am an
individual recipient?
1401.401 Whom in the DOI does a recipient who is an individual
notify about a criminal drug conviction?
Subpart E--Responsibilities of Department of the Interior Awarding
Officials
1401.500 What are my responsibilities as a DOI awarding official?
Subpart F--Violations of this Part and Consequences
1401.600 How are violations of this part determined for recipients
other than individuals?
[[Page 71009]]
1401.605 How are violations of this part determined for recipients
who are individuals?
1401.610 What actions will the Federal Government take against a
recipient determined to have violated this part?
1401.615 Are there any exceptions to those actions?
Authority: 5 U.S.C. 301; 31 U.S.C. 6101 note, 7501; 41 U.S.C.
252a; 41 U.S.C. 701-707.
Subpart A--Purpose and Coverage
Sec. 1401.100 What does this part do?
This part requires that the award and administration of the DOI
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 (hereinafter,
``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 DOI's grants and cooperative agreements; and
(b) Establishes DOI 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 government-wide
implementing regulations.
Sec. 1401.105 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 apply if you are--
(a) A recipient of an assistance award from the Department of the
Interior; or
(b) The Department of the Interior awarding official.
The following table (will be incorporated into 2 CFR part 182)
shows the subparts that apply to you:
------------------------------------------------------------------------
If you are See subparts
------------------------------------------------------------------------
(1) A recipient who is not an individual. A, C and F.
(2) A recipient who is an individual..... A, D and F.
(3) A Department of the Interior awarding A, E and F.
official.
------------------------------------------------------------------------
Sec. 1401.110 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) In implementing 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 set forth 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. 1401.335 Whom in the DOI 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. 1401.401 Whom in the DOI 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. 1401.600 Who in the DOI 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. 1401.605 Who in the DOI 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, DOI
policies and procedures are the same as those in the OMB guidance.
Sec. 1401.115 Are any of my Federal assistance awards exempt from
this part?
This part does not apply to any award if the Director, Office of
Acquisition and Property Management (PAM), determines that the
application of this part would be inconsistent with the international
obligations of the United States or the laws or regulations of a
foreign government.
Sec. 1401.120 Does this part affect the Federal contracts that I
receive?
It will affect future contract awards indirectly if you are
debarred or suspended for a violation of the requirements of this part,
as described in Sec. 1401.610(c). However, this part does not directly
apply to procurement contracts. The portion of the Drug-Free Workplace
Act of 1988 that applies to Federal procurement contracts is carried
out through the Federal Acquisition Regulation in 48 CFR part 23,
subpart 23.5.
Subpart F--Definitions
Sec. 1401.205 Award.
Award means an award of financial assistance by DOI or other
Federal agency directly to a recipient.
(a) The term award includes:
(1) A Federal grant or cooperative agreement, in the form of money
or property in lieu of money.
(2) A block grant or a grant in an entitlement program, whether or
not the grant is exempted from coverage under the Departmental rules at
43 CFR part 12, subpart C, ``Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments.''
(b) The term award does not include:
(1) Technical assistance that provides services instead of money.
(2) Loans.
(3) Loan guarantees.
(4) Interest subsidies.
(5) Insurance.
(6) Direct appropriations.
(7) Veterans' benefits to individuals (i.e., any benefit to
veterans, their families, or survivors by virtue of the service of a
veteran in the Armed Forces of the United States).
Sec. 1401.210 Controlled substance.
Controlled substance means any controlled substance identified in
schedules I through V of the Controlled Substances Act, 21 U.S.C. 812,
and as further defined by regulations at 21 CFR 1308.11 through
1308.15.
Sec. 1401.215 Conviction.
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes.
Sec. 1401.220 Cooperative agreement.
Cooperative agreement means an award of financial assistance that,
consistent with 31 U.S.C. 6305, is used to enter into the same kind of
relationship as a grant (see definition of
[[Page 71010]]
grant in section 1401.250), except that substantial involvement is
expected between the Federal agency and the recipient when carrying out
the activity contemplated by the award. The term does not include
cooperative research and development agreements as defined in 15 U.S.C.
3710a.
Sec. 1401.225 Criminal drug statute.
Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance.
Sec. 1401.230 Debarment.
Debarment means an action taken by a Federal agency to prohibit a
recipient from participating in Federal Government procurement
contracts and covered non-procurement transactions. A recipient so
prohibited is debarred, in accordance with the Federal Acquisition
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 2
CFR part 180.
Sec. 1401.235 Drug-free workplace.
Drug-free workplace means a site for the performance of work done
in connection with a specific award at which employees of the recipient
are prohibited from engaging in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance.
Sec. 1401.240 Employee.
(a) Employee means the employee of a recipient directly engaged in
the performance of work under the award, including--
(1) All direct charge employees;
(2) All indirect charge employees, unless their impact or
involvement in the performance of work under the award is insignificant
to the performance of the award; and
(3) Temporary personnel and consultants who are directly engaged in
the performance of work under the award and who are on the recipient's
payroll.
(b) This definition does not include workers not on the payroll of
the recipient (e.g., volunteers, even if used to meet a matching
requirement; consultants or independent contractors not on the payroll;
or employees of sub-recipients or subcontractors in covered
workplaces).
Sec. 1401.245 Federal agency or agency.
Federal agency or agency means any United States executive
department, military department, government corporation, government
controlled corporation, any other establishment in the executive branch
(including the Executive Office of the President), or any independent
regulatory agency.
Sec. 1401.250 Grant.
Grant means an award of financial assistance that, consistent with
31 U.S.C. 6304, is used to enter into a relationship whereby--
(a) The principal purpose of which is to transfer a thing of value
to the recipient to carry out a public purpose of support or
stimulation authorized by a law of the United States, rather than to
acquire property or services for the Federal Government's direct
benefit or use; and
(b) In which substantial involvement is not expected between the
Federal agency and the recipient when carrying out the activity
contemplated by the award.
Sec. 1401.255 Individual.
Individual means a natural person.
Sec. 1401.260 Recipient.
Recipient means any individual, corporation, partnership,
association, unit of government (except a Federal agency) or legal
entity, however organized, that receives an award directly from a
Federal agency.
Sec. 1401.265 State.
State means any of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, or any territory or
possession of the United States.
Sec. 1401.270 Suspension.
Suspension means an action taken by a Federal agency that
immediately prohibits a recipient from participating in Federal
Government procurement contracts and covered non-procurement
transactions for a temporary period, pending completion of an
investigation and any judicial or administrative proceedings that may
ensue. A recipient so prohibited is suspended, in accordance with the
Federal Acquisition Regulation for procurement contracts (48 CFR part
9, subpart 9.4) and 2 CFR part 180. Suspension of a recipient is a
distinct and separate action from suspension of an award or suspension
of payments under an award.
Subpart C--Requirements for Recipients Other Than Individuals
Sec. 1401.300 What must I do to comply with this part?
There are two general requirements if you are a recipient other
than an individual.
(a) First, you must make a good faith effort, on a continuing
basis, to maintain a drug-free workplace. You must agree to do so as a
condition for receiving any award covered by this part. The specific
measures that you must take in this regard are described in more detail
in subsequent sections of this subpart. Briefly, those measures are
to--
(1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees; and
(2) Take actions concerning employees who are convicted of
violating drug statutes in the workplace.
(b) Second, you must identify all known workplaces under your
Federal awards.
Sec. 1401.305 What must I include in my drug-free workplace
statement?
You must publish a statement that--
(a) Tells your employees that the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance
is prohibited in your workplace;
(b) Specifies the actions that you will take against employees for
violating that prohibition; and
(c) Lets each employee know that, as a condition of employment
under any award, he or she:
(1) Will abide by the terms of the statement; and
(2) Must notify you in writing if he or she is convicted for a
violation of a criminal drug statute occurring in the workplace and
must do so no more than five calendar days after the conviction.
Sec. 1401.310 To whom must I distribute my drug-free workplace
statement?
You must require that a copy of the statement described in Sec.
1401.305 be given to each employee who will be engaged in the
performance of any Federal award.
Sec. 1401.315 What must I include in my drug-free awareness program?
You must establish an ongoing drug-free awareness program to inform
employees about--
(a) The dangers of drug abuse in the workplace;
(b) Your policy of maintaining a drug-free workplace;
(c) Any available drug counseling, rehabilitation, and employee
assistance programs; and
(d) The penalties that you may impose upon them for drug abuse
violations occurring in the workplace.
Sec. 1401.320 By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?
If you are a new recipient that does not already have a policy
statement as described in Sec. 1401.305 and an ongoing
[[Page 71011]]
awareness program as described in Sec. 1401.315, you must publish the
statement and establish the program by the time given in the following
table:
------------------------------------------------------------------------
If . . . then you . . .
------------------------------------------------------------------------
(a) The performance period of the award must have the policy statement
is less than 30 days. and program in place as soon
as possible, but before the
date on which performance is
expected to be completed.
(b) The performance period of the award must have the policy statement
is 30 days or more. and program in place within 30
days after award.
(c) You believe there are extraordinary may ask the Department of the
circumstances that will require more Interior awarding official to
than 30 days for you to publish the give you more time to do so.
policy statement and establish the The amount of additional time,
awareness program. if any, to be given is at the
discretion of the awarding
official.
------------------------------------------------------------------------
Sec. 1401.325 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
There are two actions you must take if an employee is convicted of
a drug violation in the workplace:
(a) First, you must notify Federal agencies if an employee who is
engaged in the performance of an award informs you about a conviction,
as required by Sec. 1401.305(c)(2), or you otherwise learn of the
conviction. Your notification to the Federal agencies must--
(1) Be in writing;
(2) Include the employee's position title;
(3) Include the identification number(s) of each affected award;
(4) Be sent within ten calendar days after you learn of the
conviction; and
(5) Be sent to every Federal agency on whose award the convicted
employee was working. It must be sent to every awarding official or his
or her official designee, unless the Federal agency has specified a
central point for the receipt of the notices.
(b) Second, within 30 calendar days of learning about an employee's
conviction, you must either--
(1) Take appropriate personnel action against the employee, up to
and including termination, consistent with the requirements of the
Rehabilitation Act of 1973, 29 U.S.C. 794, as amended; or
(2) Require the employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for these purposes
by a Federal, State or local health, law enforcement, or other
appropriate agency.
Sec. 1401.330 How and when must I identify workplaces?
(a) You must identify all known workplaces under each DOI award. A
failure to do so is a violation of your drug-free workplace
requirements. You may identify the workplaces--
(1) To the DOI official that is making the award, either at the
time of application or upon award; or
(2) In documents that you keep on file in your offices during the
performance of the award, in which case you must make the information
available for inspection upon request by DOI officials or their
designated representatives.
(b) Your workplace identification for an award must include the
actual address of buildings (or parts of buildings) or other sites
where work under the award takes place. Categorical descriptions may be
used (e.g., all vehicles of a mass transit authority or State highway
department while in operation, State employees in each local
unemployment office, performers in concert halls or radio studios).
(c) If you identified workplaces to the DOI awarding official at
the time of application or award, as described in paragraph (a)(1) of
this section, and any workplace that you identified changes during the
performance of the award, you must inform the DOI awarding official.
Sec. 1401.335 Whom in the DOI does a recipient other than an
individual notify about a criminal drug conviction?
The DOI is not designating a central location for the receipt of
these reports. Therefore you shall provide this report to every grant
officer, or other designee within a bureau or office of the Department
on whose grant activity the convicted employee was working.
Subpart D--Requirements for Recipients Who Are Individuals
Sec. 1401.400 What must I do to comply with this part if I am an
individual recipient?
As a condition of receiving a DOI award, if you are an individual
recipient, you must agree that--
(a) You will not engage in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance in conducting
any activity related to the award; and
(b) If you are convicted of a criminal drug offense resulting from
a violation occurring during the conduct of any award activity, you
will report the conviction:
(1) In writing.
(2) Within 10 calendar days of the conviction.
(3) To the Department of the Interior awarding official or other
designee for each award that you currently have, unless Sec. 1401.401
or the award document designates a central point for the receipt of the
notices. When notice is made to a central point, it must include the
identification number(s) of each affected award.
Sec. 1401.401 Whom in the DOI does a recipient who is an individual
notify about a criminal drug conviction?
The DOI is not designating a central location for the receipt of
these reports. Therefore you shall provide this report to every grant
officer, or other designee within a bureau or office of the Department
on whose grant activity the convicted employee was working.
Subpart E--Responsibilities of DOI Awarding Officials
Sec. 1401.500 What are my responsibilities as a DOI awarding
official?
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 1401, which adopts the
government-wide implementation of 2 CFR part 182; sections 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 F--Violations of this Part and Consequences
Sec. 1401.600 How are violations of this part determined for
recipients other than individuals?
A recipient other than an individual is in violation of the
requirements of this part if the Director, PAM determines, in writing,
that--
(a) The recipient has violated the requirements of subpart B of
this part; or
[[Page 71012]]
(b) The number of convictions of the recipient's employees for
violating criminal drug statutes in the workplace is large enough to
indicate that the recipient has failed to make a good faith effort to
provide a drug-free workplace.
Sec. 1401.605 How are violations of this part determined for
recipients who are individuals?
An individual recipient is in violation of the requirements of this
part if the Director, PAM determines, in writing, that--
(a) The recipient has violated the requirements of subpart C of
this part; or
(b) The recipient is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any award activity.
Sec. 1401.610 What actions will the Federal Government take against a
recipient determined to have violated this part?
If a recipient is determined to have violated this part, as
described in Sec. 1401.600 or Sec. 1401.605, DOI may take one or more
of the following actions--
(a) Suspension of payments under the award;
(b) Suspension or termination of the award; and
(c) Suspension or debarment of the recipient under 2 CFR part 180,
for a period not to exceed five years.
Sec. 1401.615 Are there any exceptions to those actions?
The Secretary of the Interior may waive with respect to a
particular award, in writing, a suspension of payments under an award,
suspension or termination of an award, or suspension or debarment of a
recipient if the Secretary of the Interior determines that such a
waiver would be in the public interest. This exception authority cannot
be delegated to any other official.
TITLE 43--PUBLIC LANDS
0
2. In title 43, remove part 43.
[FR Doc. 2010-29371 Filed 11-19-10; 8:45 am]
BILLING CODE 4310-RK-P
