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.

Rules and Regulations Federal Register

80287 

Vol. 75, No. 245 

Wednesday, December 22, 2010 

ENVIRONMENTAL PROTECTION 

AGENCY 

2 CFR Part 1536 

40 CFR Part 36 

[Docket No. EPA–HQ–OARM–2010–0922; 

FRL– 9242–2] 

Environmental Protection Agency 

Implementation of OMB Guidance on 

Drug-Free Workplace Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency is removing its regulation 

implementing the Governmentwide 

common rule on drug-free workplace 

requirements for financial assistance. 

This regulatory action implements the 

OMB’s initiative to streamline and 

consolidate into one title of the CFR all 

federal regulations on drug-free 

workplace requirements for financial 

assistance. These changes constitute an 

administrative simplification that would 

make no substantive change in 

Environmental Protection Agency 

policy or procedures for drug-free 

workplace. 

DATES: This final rule is effective on 

December 22, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OARM–2010–0922. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically through http:// 

www.regulations.gov or in hard copy at 

the Public Reading Room. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth January, Environmental 

Protection Agency, 5 Post Office Square, 

Boston, MA 02109, by phone (617) 918– 

8655 or by e-mail 

(january.elizabeth@epa.gov). 

SUPPLEMENTARY INFORMATION: 

I. General Information 

Affected Entities: Entities that receive 

grants from EPA. 

II. 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 

[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. 

Conclusion 

As the OMB guidance requires, the 

Environmental Protection Agency is 

taking two regulatory actions. First, we 

are removing the drug-free workplace 

common rule from 40 CFR part 36. 

Second, to replace the common rule, we 

are issuing a brief regulation in 2 CFR 

part 1536 to adopt the Governmentwide 

policies and procedures in the OMB 

guidance. 

Statutory and Executive Order 

Reviews: OMB has determined under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993), that this action is not 

a ‘‘significant regulatory action.’’ 

Because this grants rule is not subject to 

notice and comment requirements 

under the Administrative Procedure Act 

or any other statute, it is not subject to 

the Regulatory Flexibility Act (5 U.S.C. 

601 et.). Today’s rule contains no 

Federal mandates (under the regulatory 

provisions of Title 2 of the Unfunded 

Mandates Reform Act of 1999 (UMRA)) 

for State, local, or tribal governments or 

the private sector that would subject the 

rule to Sections 202 and 205 of the 

UMRA) (Pub. L. 104–4). The rule 

imposes no enforceable duty on any 

State, local, or Tribal governments or 

the private sector. In addition, this rule 

does not significantly or uniquely affect 

small governments. This action does not 

have tribal implications, as specified in 

Executive Order 13175 (65 FR 67249, 

November 9, 2000). This final rule is 


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80288 Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Rules and Regulations 

solely an administrative simplification 

that would make no substantive change 

in Environmental Protection Agency 

policy or procedures for drug-free 

workplace. Thus, Executive Order 

13175 (63 FR 67249, November 9, 2000) 

does not apply to this action. EPA 

interprets Executive Order 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the Executive Order has the potential to 

influence the regulation. This action is 

not subject to Executive Order 13045 

because it does not establish an 

environmental standard intended to 

mitigate health or safety risks. This rule 

will not have federalism implications, 

as specified in Executive Order 13132 

(64 FR 43255, August 10, 1999). 

Executive Order 12898 (59 FR 7629 

(February 16, 1994)) establishes Federal 

executive policy on environmental 

justice. EPA has determined that this 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it is a 

grant rule that does not affect the level 

of protection provided to human health 

or the environment. This rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

Further, we have concluded that this 

rule is not likely to have any adverse 

energy effects. This rule does not 

involve technical standards; thus, the 

requirements of Section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an additional information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). 

Congressional Review Act: The 

Congressional Review Act, 5 U.S.C. 801 

et seq., generally provides that before 

certain actions may take effect, the 

agency promulgating the action must 

submit a report, which includes a copy 

of the action, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective on December 22, 2010. 

List of Subjects 

2 CFR Part 1536 

Administrative practice and 

procedure, Drug abuse, Grant programs, 

Reporting and recordkeeping 

requirements. 

40 CFR Part 36 

Governmentwide requirements for 

drug-free work-place (financial 

assistance). 

Dated: December 16, 2010. 

Howard Corcoran, 

Director, Office of Grants and Debarment. 

■ Accordingly, for the reasons set forth 

in the preamble, and under the 

authority of 5 U.S.C. 301, the 

Environmental Protection Agency 

amends the Code of Federal 

Regulations, Title 2, Subtitle B, Chapter 

XV, Part 1536, and Title 40, Chapter I, 

Part 36, as follows: 

Title 2—Grants and Agreements 

■ 1. Add Part 1536 in Subtitle B, 

Chapter XV, to read as follows: 

PART 1536—REQUIREMENTS FOR 

DRUG-FREE WORKPLACE 

(FINANCIAL ASSISTANCE) 

Sec. 

1536.10 What does this part do? 

1536.20 Does this part apply to me? 

1536.30 What policies and procedures must 

I follow? 

Subpart A—Purpose and Coverage 

[Reserved.] 

Subpart B—Requirements for Recipients 

Other Than Individuals 

1536.225 Whom in the Environmental 

Protection Agency does a recipient other 

than an individual notify about a 

criminal drug conviction? 

Subpart C—Requirements for Recipients 

Who Are Individuals 

1536.300 Whom in the Environmental 

Protection Agency does a recipient who 

is an individual notify about a criminal 

drug conviction? 

Subpart D—Responsibilities of Agency 

Awarding Officials 

1536.400 What method do I use as an 

agency awarding official to obtain a 

recipient’s agreement to comply with the 

OMB guidance? 

Subpart E—Violations of This Part and 

Consequences 

1536.500 Who in the Environmental 

Protection Agency determines that a 

recipient other than an individual 

violated the requirements of this part? 

1536.505 Who in the Environmental 

Protection Agency determines that a 

recipient who is an individual violated 

the requirements of this part? 

Authority: 41 U.S.C. 701–707. 

§ 1536.10 What does this part do? 

This part requires that the award and 

administration of Environmental 

Protection Agency grants and 

cooperative agreements comply with 

Office of Management and Budget 

(OMB) guidance implementing the 

portion of the 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 Environmental 

Protection Agency’s grants and 

cooperative agreements; and 

(b) Establishes Environmental 

Protection Agency policies and 

procedures for compliance with the Act 

that are the same as those of other 

Federal agencies, in conformance with 

the requirement in 41 U.S.C. 705 for 

Governmentwide implementing 

regulations. 

§ 1536.20 Does this part apply to me? 

This part and, through this part, 

pertinent portions of the OMB guidance 

in Subparts A through F of 2 CFR part 

182 (see table at 2 CFR 182.115(b)) 

apply to you if you are a— 

(a) Recipient of a Environmental 

Protection Agency grant or cooperative 

agreement; or 

(b) Environmental Protection Agency 

awarding official. 

§ 1536.30 What policies and procedures 

must I follow? 

(a) General. You must follow the 

policies and procedures specified in 

applicable sections of the OMB 

guidance in Subparts A through F of 2 

CFR part 182, as implemented by this 

part. 

(b) Specific sections of OMB guidance 

that this part supplements. In 

implementing the OMB guidance in 2 

CFR part 182, this part supplements 

four sections of the guidance, as shown 

in the following table. For each of those 

sections, you must follow the policies 

and procedures in the OMB guidance, as 

supplemented by this part. 


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Federal Register / Vol. 75, No. 245 / Wednesday, December 22, 2010 / Rules and Regulations 80289 

Section of OMB guidance 

Section in this 

part where 

supplemented 

What the supplementation clarifies 

(1) 2 CFR 182.225(a) .................. § 1536.225 Whom in the Environmental Protection Agency a recipient other than an individual must 

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

(2) 2 CFR 182.300(b) .................. § 1536.300 Whom in the Environmental Protection Agency a recipient who is an individual must notify if he or she is convicted of a criminal drug offense resulting from a violation occurring during the conduct of any award activity. 

(3) 2 CFR 182.500 ...................... § 1536.500 Who in the Environmental Protection Agency is authorized to determine that a recipient 

other than an individual is in violation of the requirements of 2 CFR part 182, as implemented by this part. 

(4) 2 CFR 182.505 ...................... § 1536.505 Who in the Environmental Protection Agency is authorized to determine that a recipient 

who is an individual is in violation of the requirements of 2 CFR part 182, as implemented by this part. 

(c) Sections of the OMB guidance that 

this part does not supplement. For any 

section of OMB guidance in Subparts A 

through F of 2 CFR part 182 that is not 

listed in paragraph (b) of this section, 

Environmental Protection Agency 

policies and procedures are the same as 

those in the OMB guidance. 

Subpart A—Purpose and Coverage 

[Reserved.] 

Subpart B—Requirements for 

Recipients Other Than Individuals 

§ 1536.225 Whom in the Environmental 

Protection Agency does a recipient other 

than an individual notify about a criminal 

drug conviction? 

A recipient other than an individual 

that is required under 2 CFR 182.225(a) 

to notify Federal agencies about an 

employee’s conviction for a criminal 

drug offense must notify the EPA award 

official from each Environmental 

Protection Agency office from which it 

currently has an award. 

Subpart C—Requirements for 

Recipients Who Are Individuals 

§ 1536.300 Whom in the Environmental 

Protection Agency does a recipient who is 

an individual notify about a criminal drug 

conviction? 

A recipient who is an individual and 

is required under 2 CFR 182.300(b) to 

notify Federal agencies about a 

conviction for a criminal drug offense 

must notify the EPA award official from 

each Environmental Protection Agency 

office from which it currently has an 

award. 

Subpart D—Responsibilities of Agency 

Awarding Officials 

§ 1536.400 What method do I use as an 

agency awarding official to obtain a 

recipient’s agreement to comply with the 

OMB guidance? 

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 

Subtitle B, Chapter XV, Part 1536, 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 

§ 1536.500 Who in the Environmental 

Protection Agency determines that a 

recipient other than an individual violated 

the requirements of this part? 

The EPA Administrator or designee is 

the official authorized to make the 

determination under 2 CFR 182.500. 

§ 1536.505 Who in the Environmental 

Protection Agency determines that a 

recipient who is an individual violated the 

requirements of this part? 

The EPA Administrator or designee is 

the official authorized to make the 

determination under 2 CFR 182.505. 

Title 40—Protection of Environment 

Chapter I 

PART 36—[REMOVED] 

■ 2. Remove Part 36. 

[FR Doc. 2010–32134 Filed 12–21–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[Docket No. EERE–2010–BT–STD–WAV– 

0045] 

Energy Efficiency Program for 

Consumer Products: Waiver of Federal 

Preemption of State Regulations 

Concerning the Water Use or Water 

Efficiency of Showerheads, Faucets, 

Water Closets and Urinals 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: The U.S Department of 

Energy (DOE) waives the general rule of 

Federal preemption for energy 

conservation standards under 42 U.S.C. 

6297(c) with respect to any State 

regulation concerning the water use or 

water efficiency of faucets, 

showerheads, water closets and urinals 

if such State regulation is: More 

stringent than Federal regulation 

concerning the water use or water 

efficiency for that same type or class of 

product; and applicable to any sale or 

installation of all products in that 

particular type or class. 

DATES: Effective Date: This rule is 

effective December 22, 2010. 

ADDRESSES: The public may review 

copies of all materials related to this 

rulemaking at the U.S. Department of 

Energy, Resource Room of the Building 

Technologies Program, 950 L’Enfant 

Plaza, SW., Suite 600, Washington, DC, 

(202) 586–2945, between 9 a.m. and 

4 p.m., Monday through Friday, except 

Federal holidays. Please call Ms. Brenda 

Edwards at the above telephone number 

for additional information regarding 

visiting the Resource Room. 

FOR FURTHER INFORMATION CONTACT: 

Lucas Adin, U.S. Department of Energy, 

Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 950 


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