This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

29215 

Vol. 75, No. 100 

Tuesday, May 25, 2010 

DEPARTMENT OF COMMERCE 

Office of the Secretary 

2 CFR Part 1329 

15 CFR Part 29 

[Docket No. 0907271171–91172–01] 

RIN 0605–AA28 

U.S. Department of Commerce 

Implementation of OMB Guidance on 

Drug-Free Workplace Requirements 

AGENCY: U.S. Department of Commerce, 

Office of the Secretary. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Department of 

Commerce is proposing to remove its 

regulation implementing the 

Governmentwide common rule on drugfree 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 CFR all Federal regulations on 

drug-free workplace requirements for 

financial assistance. These changes 

constitute an administrative 

simplification that would make no 

substantive change in U.S. Department 

of Commerce policy or procedures for 

drug-free workplace. 

DATES: Submit comments by June 24, 

2010 on any unintended changes this 

action makes in U.S. Department of 

Commerce policies and procedures for 

drug-free workplace. All comments on 

unintended changes will be considered 

and, if warranted, U.S. Department of 

Commerce will revise the rule. 

ADDRESSES: You may submit comments, 

identified by RIN 0605–AA28, by any of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Gary Johnson, Office of 

Acquisition Management, U.S. 

Department of Commerce, Room 

H–6412, 1401 Constitution Avenue, 

NW., Washington, DC 20230. 

• Hand Delivery/Courier: Same 

Address as Above. 

Instructions: All submissions received 

must include the agency name and 

Regulatory Information Number (RIN) 

for this rulemaking. All comments 

received will be posted without change 

to Regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Gary 

Johnson, Gjohnso3@doc.gov, 

202 482–1679. 

SUPPLEMENTARY INFORMATION: 

Background 

The Drug-Free Workplace Act of 1988, 

Public Law 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 

(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 drug-free workplace common rule in 

2002 (67 FR 3266, January 23, 2002) and 

finalized it in 2003 (68 FR 66534, 

November 26, 2003). The updated 

common rule was redrafted in plain 

language and adopted as a separate part 

independent from the common rule on 

nonprocurement suspension and 

debarment. Based on an amendment to 

the drug-free workplace requirements in 

41 U.S.C. 702 (Pub. L. 105–85, div. A, 

title VIII, Sec. 809, Nov. 18, 1997, 111 

Stat. 1838), the update also allowed 

multiple enforcement options from 

which agencies could select, rather than 

requiring use of a certification in all 

cases. 

When it established Title 2 of the CFR 

as the new central location for OMB 

guidance and agency implementing 

regulations concerning grants and 

agreements (69 FR 26276, May 11, 

2004), OMB announced its intention to 

replace common rules with OMB 

guidance that agencies could adopt in 

brief regulations. OMB began that 

process by proposing (70 FR 51863, 

August 31, 2005) and finalizing (71 FR 

66431, November 15, 2006) 

Governmentwide guidance on 

nonprocurement suspension and 

debarment in 2 CFR part 180. 

As the next step in that process, OMB 

proposed for comment (73 FR 55776, 

September 26, 2008) and finalized (74 

FR 28149, June 15, 2009) 

Governmentwide guidance with policies 

and procedures to implement drug-free 

workplace requirements for financial 

assistance. The guidance requires each 

agency to replace the common rule on 

drug-free workplace requirements that 

the agency previously issued in its own 

CFR title with a brief regulation in 2 

CFR adopting the Governmentwide 

policies and procedures. One advantage 

of this approach is that it reduces the 

total volume of drug-free workplace 

regulations. A second advantage is that 

it collocates OMB’s guidance and all of 

the agencies’ implementing regulations 

in 2 CFR. 

The Current Regulatory Actions 

As the OMB guidance requires, the 

Department of Commerce is taking two 

regulatory actions. First, we are 

proposing to remove the drug-free 

workplace common rule from 15 CFR 

Part 29. Second, to replace the common 

rule, we propose to issue a brief 

regulation in 2 CFR Part 1329 to adopt 

the Governmentwide policies and 

procedures in the OMB guidance. 

Invitation to Comment 

Taken together, these regulatory 

actions are solely an administrative 

simplification and are not intended to 

make any substantive 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 common rule 

at 15 CFR part 29. 

Executive Order 12866 

OMB has determined this rule to be 

not significant for purposes of E.O. 

12866. 

Regulatory Flexibility Act of 1980 

(5 U.S.C. 605(b)) 

Pursuant to section 605(b), the Chief 

Council for Regulations certified to the 

Chief Council for Advocacy at the Small 

Business Administration that the 

attached proposed rule, if adopted, will 

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29216 Federal Register / Vol. 75, No. 100 / Tuesday, May 25, 2010 / Proposed Rules 

not have a significant economic impact 

on a substantial number of small 

entities. 

The U.S. Department of Commerce is 

proposing to remove its regulation 

implementing the Governmentwide 

common rule on drug-free workplace 

requirements for financial assistance, 

currently located within part 29 of title 

15 of the Code of Federal Regulations 

(CFR), and issuing a new regulation to 

adopt the Office of Management and 

Budget (OMB) guidance at 2 CFR part 

182. This regulatory action implements 

the OMB’s initiative to streamline and 

consolidate into one title of the CFR all 

Federal regulations on drug-free 

workplace requirements for financial 

assistance. This regulatory change does 

not impact any small entities as these 

changes constitute an administrative 

simplification that would make no 

substantive change in U.S. Department 

of Commerce policy or procedures for a 

drug-free workplace. For the reasons set 

forth above, this action will not have a 

significant impact on a substantial 

number of small entities. 

Unfunded Mandates Act of 1995 (Sec. 

202, Pub. L. 104–4) 

This regulatory action does not 

contain a Federal mandate that will 

result in the expenditure by State, local, 

and Tribal governments, in aggregate, or 

by the private sector of $100 million or 

more in any one year. 

Paperwork Reduction Act of 1995 (44 

U.S.C., Chapter 35) 

This regulatory action will not impose 

any additional reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act. 

Federalism (Executive Order 13132) 

This proposed regulatory action does 

not have Federalism implications, as set 

forth in Executive Order 13132. It will 

not have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

List of Subjects 

2 CFR Part 1329 

Administrative practice and 

procedure, Drug abuse, Grant programs, 

Reporting and recordkeeping 

requirements. 

15 CFR Part 29 

Administrative practice and 

procedure, Drug abuse, Grant programs, 

Reporting and recordkeeping 

requirements. 

Issued on May 20, 2010 at Washington, DC. 

Helen Hurcombe, 

Director for Acquisition Management and 

Procurement Executive. 

Accordingly, for the reasons set forth 

in the preamble, and under the 

authority of 5 U.S.C. 301 and 41 U.S.C. 

701 et seq., the U. S. Department of 

Commerce proposes to add 2 CFR 1329 

and remove 15 CFR 29 as follows: 

Title 2 

1. Add part 1329 in subtitle B, chapter 

13, to read as follows: 

PART 1329–REQUIREMENTS FOR 

DRUG-FREE WORKPLACE 

(FINANCIAL ASSISTANCE) 

Sec. 

1329.10 What does this part do? 

1329.20 Does this Part apply to me? 

1329.30 What policies and procedures must 

I follow? 

Subpart A—[Reserved] 

Subpart B—Requirements for Recipients 

Other Than Individuals 

1329.225 Whom in the Department of 

Commerce does a recipient other than an 

individual notify about a criminal drug 

conviction? 

Subpart C—Requirements for Recipients 

Who Are Individuals 

1329.300 Whom in the Department of 

Commerce does a recipient who is an 

individual notify about a criminal drug 

conviction? 

Subpart D—Responsibilities of Agency 

Awarding Officials 

1329.400 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 

1329.500 Who in the Department of 

Commerce determines that a recipient 

other than an individual violated the 

requirements of this part? 

1329.505 Who in the Department of 

Commerce determines that a recipient 

who is an individual violated the 

requirements of this part? 

Subpart F—[Reserved] 

Authority: 5 U.S.C. 301; 41 U.S.C. 701– 

707. 

§ 1329.10 What does this part do? 

This part requires that the award and 

administration of Department of 

Commerce grants and cooperative 

agreements comply with Office of 

Management and Budget (OMB) 

guidance implementing the portion of 

the Drug-Free Workplace Act of 1988 

(41 U.S.C. 701–707, as amended, 

hereafter referred to as ‘‘the Act’’) that 

applies to grants. It thereby— 

(a) Gives regulatory effect to the OMB 

guidance (subparts A through F of 2 

CFR part 182) for the Department of 

Commerce’s grants and cooperative 

agreements; and 

(b) Establishes Department of 

Commerce 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. 

§ 1329.20 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 Department of 

Commerce grant or cooperative 

agreement; or 

(b) Department of Commerce 

awarding official. 

§ 1329.30 What policies and procedures 

must I follow? 

(a) General. You must follow the 

policies and procedures specified in 

applicable sections of the OMB 

guidance in subparts A through F of 2 

CFR part 182, as implemented by this 

part. 

(b) Specific sections of OMB guidance 

that this part supplements. In 

implementing the OMB guidance in 2 

CFR part 182, this part supplements 

four sections of the guidance, as shown 

in the following table. For each of those 

sections, you must follow the policies 

and procedures in the OMB guidance, as 

supplemented by this part. 

Section of OMB guidance 

Section in this 

part where supplemented What the supplementation clarifies 

(1) 2 CFR 182.225(a) ............... § 1329.225 ........ Whom in the Department of Commerce a recipient other than an individual must notify if an 

employee is convicted for a violation of a criminal drug statute in the workplace. 

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Federal Register / Vol. 75, No. 100 / Tuesday, May 25, 2010 / Proposed Rules 29217 

Section of OMB guidance 

Section in this 

part where supplemented What the supplementation clarifies 

(2) 2 CFR 182.300(b) ............... § 1329.300 ........ Whom in the Department of Commerce 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 ................... § 1329.500 ........ Who in the Department of Commerce 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 ................... § 1329.505 ........ Who in the Department of Commerce 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, 

Department of Commerce policies and 

procedures are the same as those in the 

OMB guidance. 

Subpart A—[Reserved] 

Subpart B—Requirements for 

Recipients Other Than Individuals 

§ 1329.225 Whom in the Department of 

Commerce 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 each 

Department of Commerce office from 

which it currently has an award. 

Subpart C—Requirements for 

Recipients Who Are Individuals 

§ 1329.300 Whom in the Department of 

Commerce does a recipient who is an 

individual notify about a criminal drug 

conviction? 

A recipient who is an individual and 

is required under 2 CFR 182.300(b) to 

notify Federal agencies about a 

conviction for a criminal drug offense 

must notify each Department of 

Commerce office from which it 

currently has an award. 

Subpart D—Responsibilities of Agency 

Awarding Officials 

§ 1329.400 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 2 CFR part 1329, which 

adopts the Governmentwide 

implementation (2 CFR part 182) of sec. 

5152–5158 of the Drug-Free Workplace 

Act of 1988 (Pub. L. 100–690, Title V, 

Subtitle D; 41 U.S.C. 701–707). 

Subpart E—Violations of This Part and 

Consequences 

§ 1329.500 Who in the Department of 

Commerce determines that a recipient other 

than an individual violated the requirements 

of this Part? 

The Secretary of Commerce or 

designee. 

§ 1329.505 Who in the Department of 

Commerce determines that a recipient who 

is an individual violated the requirements of 

this Part? 

The Secretary of Commerce or 

designee. 

Subpart F—Definitions [Reserved] 

Title 15, Commerce and Foreign Trade 

PART 29—[REMOVED AND 

RESERVED] 

2. Remove and reserve part 29. 

[FR Doc. 2010–12536 Filed 5–24–10; 8:45 am] 

BILLING CODE 3510–03–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 26 

[Docket No. OJP 1464; AG Order No. 3157– 

2010] 

RIN 1121–AA76 

Office of the Attorney General; 

Certification Process for State Capital 

Counsel Systems; Removal of Final 

Rule 

AGENCY: Office of the Attorney General, 

Department of Justice. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: Pursuant to the USA 

PATRIOT Improvement and 

Reauthorization Act of 2005, the 

Department of Justice promulgated a 

final rule to implement certification 

procedures for States seeking to qualify 

for the special Federal habeas corpus 

review procedures in capital cases 

afforded under chapter 154 of title 28 of 

the United States Code. See Certification 

Process for State Capital Counsel 

Systems, 73 FR 75327 (Dec. 11, 2008). 

A Federal district court issued an 

injunction requiring the Department to 

provide an additional public comment 

period and publish a response to any 

comments received during that period. 

The Department then solicited further 

public comments. By this proposed rule, 

the Department is proposing to remove 

the December 11, 2008 regulations. The 

Department will issue new regulations 

on this subject by separate rulemaking 

after the December 2008 regulations are 

removed. 

DATES: Written comments must be 

postmarked and electronic comments 

must be submitted on or before June 24, 

2010. Commenters should be aware that 

the electronic Federal Docket 

Management System will not accept 

comments after Midnight Eastern Time 

on the last day of the comment period. 

ADDRESSES: Comments may be mailed to 

Regulations Docket Clerk, Office of 

Legal Policy, Department of Justice, 950 

Pennsylvania Avenue, NW., Room 4234, 

Washington, DC 20530. To ensure 

proper handling, please reference OAG 

Docket No. 1464 on your 

correspondence. You may submit 

comments electronically or view an 

electronic version of this proposed rule 

at http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Molly J. Moran, Office of Legal Policy, 

at (202) 514–4601 (not a toll-free 

number). 

SUPPLEMENTARY INFORMATION: 

Posting of Public Comments. Please 

note that all comments received are 

considered part of the public record and 

made available for public inspection 

online at http://www.regulations.gov. 

Such information includes personal 

identifying information (such as your 

name, address, etc.) voluntarily 

submitted by the commenter. 

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