2011-19129. Implementation of Office of Management and Budget Guidance on Drug-Free Workplace Requirements

AGENCY:

Office of the Secretary, HUD.

ACTION:

Final rule.

SUMMARY:

HUD is moving its regulation implementing the governmentwide common rule on drug-free workplace requirements for financial assistance from one title in the Code of Federal Regulations (CFR) to another title. This relocation of the requirements from one CFR title to another responds to directions from the Office of Management and Budget (OMB) to all federal agencies to consolidate into one CFR title all federal regulations on drug-free workplace requirements for financial assistance. These changes constitute an administrative simplification and make no substantive change in HUD policy or procedures for drug-free workplace.

DATES:

Effective Date: August 29, 2011.

FOR FURTHER INFORMATION CONTACT:

Barbara Dorf, Director, Office of Departmental Grants Management and Oversight, Office of the Chief of the Human Capital Officer, Department of Housing and Urban Development, 451 7th Street, SW., Room 3156, Washington, DC 20410-0500, telephone number 202-708-0667. (This is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

 

I. Background

The Drug-Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D) (41 U.S.C. 701 et seq.) (the Act) was enacted on November 18, 1988, as part of the 1988 Omnibus Drug Act. The Act requires that recipients of grants and parties to cooperative agreements provide a drug-free workplace. On January 31, 1989 (53 FR 4946), the federal agencies issued an interim final common rule to implement the Act as it applies to grants. On May 25, 1990 (55 FR 21681), after considering public comment, the federal agencies issued a final common rule.

On January 23, 2002 (67 FR 3266), the federal agencies proposed substantive changes to the governmentwide Debarment and Suspension (Nonprocurement) and governmentwide Requirements for Drug-Free Workplace (Grants) common rule. HUD did not join in the January 23, 2002, publication, but proposed adopting the common rule amendments by separate rule, that was published on July 22, 2002 (67 FR 48006). On November 26, 2003 (68 FR 66534), after considering public comment on the January 23, 2002, common rule and, after HUD considered public comment on its July 22, 2002, proposed rule, the federal agencies, including HUD, published a final rule that updated the common rule on drug-free workplace requirements. Each agency at that time also relocated its drug-free workplace common rule to its own CFR part and removed the drug-free workplace rule from a subpart in the debarment and suspension common rule. HUD's drug-free workplace common rule was moved to 24 CFR part 21.

On May 11, 2004 (69 FR 26276), OMB established Title 2 of the CFR as the new, central location for OMB guidance and agency implementing regulations concerning grants and cooperative agreements. With the establishment of Title 2 of the CFR, OMB announced its intention to replace agencies' common rules with a single set of drug-free workplace requirements, policies, and procedures, referred to as OMB guidance. Through this approach, rather than have each agency issue identical or nearly identical rules based on the common rule, agencies would adopt the OMB guidance through brief regulations that reference the agencies' adoption of the guidance. The establishment of Title 2 of the CFR is intended to assist recipients that do business with multiple federal agencies by creating one title in which recipients can find the agencies' regulations implementing governmentwide requirements governing grants and cooperative agreements that were previously published under many separate CFR titles. OMB began the process of replacing common rules with its guidance by proposing, and later finalizing, governmentwide guidance on nonprocurement suspension and debarment enforcement actions in 2 CFR part 180.

On September 26, 2008 (73 FR 55776), OMB proposed guidance for drug-free workplace requirements in a new CFR part—2 CFR part 182. In addition to proposing the guidance for drug-free workplace requirements, OMB also proposed the format and organizational structure of the requirements that agencies should adopt. The guidance was issued in final form on June 15, 2009 (74 FR 28149). The final guidance directs that each federal agency replace the common rule on drug-free workplace requirements, which the agency previously issued in its own CFR title, with a brief regulation in 2 CFR adopting the governmentwide drug-free workplace policies and procedures.

II. This Final Rule

As the OMB guidance requires, HUD is taking two regulatory actions by this final rule. First, HUD is removing the OMB common rule on drug-free workplace requirements which includes some revisions particular to HUD that are currently codified at 24 CFR part 21. Second, to replace the common rule, HUD is promulgating a new regulation at 2 CFR part 2429 to adopt the governmentwide policies and procedures on drug-free workplaces that are now in the OMB guidance. This rule does not make any substantive changes in the governmentwide drug-free workplace policies and procedures, but rather simply relocates HUD's drug-free workplace requirements to a central location in 2 CFR 2429, and highlights the commonality of these requirements among federal agencies by cross-referencing to OMB's guidance.

III. Findings and Certifications

Justification for Final Rule

HUD generally publishes regulatory changes for public comment before issuing them for effect, in accordance with its own regulations on rulemaking in 24 CFR part 10. HUD does provide, however, in § 10.1 for exceptions from that general rule where the Department finds good cause to omit advance notice and public participation. The good cause requirement is satisfied when the prior public procedure is “impracticable, unnecessary, or contrary to the public interest.” In this case, the Department finds that delaying the effective date of this rule in order to solicit prior public comment is unnecessary.

As described in the “Background” section of this preamble, this rule is directed to a CFR “housekeeping” matter which is moving HUD's governmentwide regulations applicable to drug-free workplace requirements to a new title in the CFR and in streamlined form, as directed by OMB. This rule makes no substantive changes to the drug-free workplace policies and procedures, as currently codified in regulation, and which have been proposed for comment three times and adopted after resolution of the comments received. Since no substantive changes are made by this rule, and the rule would not affect current application and enforcement of drug-free workplace requirements, no public comment is necessary.

Executive Order 12866, Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and it was not reviewed by OMB. The rule responds to OMB's streamlining direction with respect to drug-free workplace requirements for federal financial assistance, and adds HUD's requirements to those of other federal agencies that are consolidated in one title of the CFR. This rule is solely an administrative simplification that

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because no advance notice of proposed rulemaking is required pursuant to 5 U.S.C. 553(b) for this rule, which moves a set of regulations, without change, from one CFR title to another, the provisions of the Regulatory Flexibility Act do not apply.

Environmental Impact

This rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321) and HUD regulations at 24 CFR 50.19(c)(1).

Executive Order 13132, Federalism

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the relevant requirements of section 6 of the Executive Order. This final rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (12 U.S.C. 1531-1538) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This final rule would not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of UMRA.

List of Subjects

2 CFR Part 2429

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

24 CFR Part 5

• Administrative practice and procedure
• Aged
• Claims
• Crime
• Government contracts
• Grant programs—housing and community development
• Individuals with disabilities
• Intergovernmental relations
• Loan programs—housing and community development
• Low and moderate income housing
• Mortgage insurance
• Penalties
• Pets
• Public housing
• Rent subsidies
• Reporting and recordkeeping requirements
• Social Security
• Unemployment compensation
• Wages

24 CFR Part 21

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

24 CFR Part 84

• Accounting
• Colleges and universities
• Grant programs
• Hospitals
• Non-profit organizations
• Reporting and recordkeeping requirements

24 CFR Part 1000

• Aged
• Community development block grants
• Grant programs—housing and community development
• Grant programs—Indians
• Indians
• Individuals with disabilities
• Public housing
• Reporting and recordkeeping requirements

Accordingly, for the reasons described in the preamble, and under the authority of 5 U.S.C. 301, HUD amends the Code of Federal Regulation, Title 2, Subtitle B, chapter XXIV, and Title 24 CFR parts 5, 21, 84 and 1000, as follows:

Title 2—Grants and Agreements

1. Add new part 2429 in Subtitle B, Chapter XXIV, to read as follows:

PART 2429—REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)

2429.10

What does this part do?

2429.20

Does this part apply to me?

2429.30

What policies and procedures must I follow?

Subpart A—[Reserved] Subpart B—Requirements for Recipients Other Than Individuals

2429.225

Whom in HUD does a recipient other than an individual notify about a criminal drug conviction?

Subpart C—Requirements for Recipients Who Are Individuals

2429.300

Whom in HUD does a recipient who is an individual notify about a criminal drug conviction?

Subpart D—Responsibilities of Agency Awarding Officials

2429.400

What method do I use as an agency awarding official to obtain a recipient's agreement to comply with the OMB guidance?

Subpart E—Violations of This Part and Consequences

2429.500

Who in HUD determines that a recipient other than an individual violated the requirements of this part?

2429.505

Who in HUD determines that a recipient who is an individual violated the requirements of this part?

Subpart F—[Reserved]

Authority: 41 U.S.C. 701-707; 42 U.S.C. 3535(d).

§ 2429.10

What does this part do?

This part requires that the award and administration of HUD 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) (referred to as the Act in this part) that applies to grants. This part:

(a) Gives regulatory effect to the OMB guidance (Subparts A through F of 2 CFR part 182) for HUD grants and cooperative agreements; and

(b) Establishes HUD 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.

§ 2429.20

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 HUD grant or cooperative agreement; or

(b) HUD awarding official.

§ 2429.30

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 of the OMB guidance, as supplemented by this part.

Section of OMB guidance	Section in this part where supplemented	What the supplementation clarifies
(1) 2 CFR 182.225(a)	§ 2429.225	Whom in HUD must a recipient other than an individual notify if an employee is convicted for a violation of a criminal drug statute in the workplace?
(2) 2 CFR 182.300(b)	§ 2429.300	Whom in HUD must a recipient who is an individual 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	§ 2429.500	Who in HUD 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	§ 2429.505	Who in HUD 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, HUD policies and procedures are the same as those in the OMB guidance.

Subpart A—[Reserved]

Subpart B—Requirements for Recipients Other Than Individuals

§ 2429.225

Whom in HUD does a recipient other than an individual notify about a criminal conviction?

A recipient other than an individual who 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 HUD office with which it currently has an award.

Subpart C—Requirements for Recipients Who Are Individuals

§ 2429.300

Whom in HUD does a recipient who is an individual notify about a criminal 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 HUD office with which he or she currently has an award.

Subpart D—Responsibilities of Agency Awarding Officials

§ 2429.400

What method do I use as an agency awarding official to obtain a recipient's agreement to comply with the OMB guidance?

To obtain a recipient's agreement to comply with applicable requirements in the OMB guidance at 2 CFR part 182, you must include the following term or condition in the award:

Drug-free workplace. You as the recipient must comply with drug-free workplace requirements in Subpart B (or Subpart C, if the recipient is an individual) of part 2429, which adopts the governmentwide implementation (2 CFR part 182) of 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 E—Violations of This Part and Consequences

§ 2429.500

Who in HUD determines that a recipient other than an individual violated the requirements of this part?

The Secretary or designee is the official authorized to make the determination under 2 CFR 182.500.

§ 2429.505

Who in HUD determines that a recipient who is an individual violated the requirements of this part?

The Secretary or designee is the official authorized to make the determination under 2 CFR 182.505.

Subpart F—[Reserved]

Title 24—Housing and Urban Development

PART 5—GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

2. The authority citation for part 5 continues to read as follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, 3535(d).

3. Revise § 5.105(d) to read as follows:

§ 5.105

Other Federal requirements.

* * * * *

(d) Drug-free workplace. The Drug-Free Workplace Act of 1988 (41 U.S.C. 701, et seq.) and HUD's implementing regulations at 2 CFR part 2429.

PART 21—[REMOVED]

5. Remove Part 21.

PART 84—UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT ORGANIZATIONS

The authority citation for part 84 continues to read as follows:

Authority: 42 U.S.C. 3535(d).

7. Revise § 84.13(b) to read as follows:

§ 84.13

Debarment and suspension; Drug-Free Workplace.

* * * * *

(b) Recipients and subrecipients shall comply with the requirements of the Drug-Free Workplace Act of 1988 (41 U.S.C. 701, et seq.), as set forth at 2 CFR part 2429.

PART 1000—NATIVE AMERICAN HOUSING ACTIVITIES

The authority citation for part 1000 continues to read as follows:

Authority: 25 U.S.C. 4101 et seq.; 42 U.S.C. 3535(d).

9. Revise § 1000.46 to read as follows:

§ 1000.46

Do drug-free workplace requirements apply?

Yes. In addition to any tribal requirements, the Drug-Free Workplace Act of 1988 (41 U.S.C. 701, et seq.) and HUD's implementing regulations in 2 CFR part 2429 apply.

Dated: July 15, 2011.

Shaun Donovan,

Secretary.