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.

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Rules and Regulations Federal Register

34573 

Vol. 76, No. 114 

Tuesday, June 14, 2011 

AGENCY FOR INTERNATIONAL 

DEVELOPMENT 

2 CFR Part 782 

22 CFR Part 210 

RIN 0412–AA66 

Implementation of OMB Guidance on 

Drug-Free Workplace Requirements 

AGENCY: U.S. Agency for International 

Development. 

ACTION: Final rule. 

SUMMARY: The U.S. Agency for 

International Development (USAID) is 

removing its regulation implementing 

the Government-wide common rule on 

drug-free workplace requirements for 

financial assistance, currently located 

within Part 210 of Title 22 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. 

These changes constitute an 

administrative simplification that would 

make no substantive change in USAID 

policy or procedures for drug-free 

workplace. 

DATES: This final rule is effective on 

August 15, 2011 without further action. 

Submit comments by July 14, 2011 on 

any unintended changes this action 

makes in USAID policies and 

procedures for drug-free workplace. All 

comments on unintended changes will 

be considered and, if warranted, USAID 

will revise the rule. 

ADDRESSES: You may submit comments, 

identified by RIN 0412–AA66 in the 

subject line to Ms. M. E. Yearwood, 

USAID—M/OAA/P, SA–44, 867B, 1300 

Pennsylvania Ave., NW., Washington, 

DC 20523, e-mail 

myearwood@usaid.gov, fax (202) 567– 

4695. 

FOR FURTHER INFORMATION CONTACT: 

Melita E. Yearwood, Procurement 

Analyst, Office of Acquisition and 

Assistance, Policy Division at (202) 

567–4672. 

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 non-procurement 

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 

non-procurement 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] 

Government-wide 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 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, 

USAID is taking two regulatory actions. 

First, we are removing the drug-free 

workplace common rule from 22 CFR 

Part 210. Second, to replace the 

common rule, we are issuing a brief 

regulation in 2 CFR Part 182 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 common rule 

at 22 CFR Part 210. 

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. 

This direct final rule is solely an 

administrative simplification that would 

make no substantive change in USAID’s 

policy or procedures for drug-free 


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34574 Federal Register / Vol. 76, No. 114 / Tuesday, June 14, 2011 / Rules and Regulations 

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) and 553(d) to make this rule 

effective on August 15, 2011 without 

further action, unless we receive 

adverse comment by July 14, 2011. 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 

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)) 

This proposed regulatory action will 

not have a significant adverse impact on 

a substantial number of small entities. 

Unfunded Mandates Act of 1995 (Sec. 

202, Pub. L. 104–4) 

This proposed 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 782 

Administrative practice and 

procedure, Drug abuse, Grant 

administration, Grant programs, 

Reporting and recordkeeping 

requirements, Government 

procurement. 

22 CFR Part 210 

Administrative practice and 

procedure, Drug abuse, Grant 

administration, Grant programs, 

Reporting and recordkeeping 

requirements, Government 

procurement. 

Accordingly, for the reasons set forth 

in the preamble, and under the 

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

amends the Code of Federal 

Regulations, Title 2, Subtitle B, chapter 

VII, Part 782, and Title 22, chapter II, as 

follows: 

Title 2—Grants and Agreements 

■ 1. Add part 782 in Subtitle B, Chapter 

VII, to read as follows: 

PART 782—REQUIREMENTS FOR 

DRUG-FREE WORKPLACE 

(FINANCIAL ASSISTANCE) 

Sec. 

782.10 What does this part do? 

782.20 Does this part apply to me? 

782.30 What policies and procedures must 

I follow? 

Subpart A—Purpose and Coverage 

[Reserved] 

Subpart B—Requirements for Recipients 

Other Than Individuals 

782.225 Whom in USAID does a recipient 

other than an individual notify about a 

criminal drug conviction? 

Subpart C—Requirements for Recipients 

Who Are Individuals 

782.300 Whom in USAID does a recipient 

who is an individual notify about a 

criminal drug conviction? 

Subpart D—Responsibilities of Agency 

Awarding Officials 

782.400 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 

782.500 Who in USAID determines that a 

recipient other than an individual 

violated the requirements of this part? 

782.505 Who in USAID determines that a 

recipient who is an individual violated 

the requirements of this part? 

Subpart F—Definitions 

782.605 Award (USAID Supplement to 

Government Wide Definition at 2 CFR 

182.605). 

Authority: 41 U.S.C. 701–707. 

§ 782.10 What does this part do? 

This part requires that the award and 

administration of USAID 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 USAID’s grants and 

cooperative agreements; and 

(b) Establishes USAID 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. 

§ 782.20 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 USAID grant or 

cooperative agreement; or 

(b) USAID awarding official. 

§ 782.30 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) ............................... § 782.225 Whom in USAID 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. 76, No. 114 / Tuesday, June 14, 2011 / Rules and Regulations 34575 

Section of OMB guidance 

Section in this 

part where supplemented What the supplementation clarifies 

(2) 2 CFR 182.300(b) ............................... § 782.300 Whom in USAID 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 ................................... § 782.500 Who in USAID 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 ................................... § 782.505 Who in USAID 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, 

USAID 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 

§ 782.225 Whom in USAID 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— 

(a) Federal agencies if an employee 

who is engaged in the performance of an 

award informs you about a conviction, 

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) 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. 

Subpart C—Requirements for 

Recipients Who Are Individuals 

§ 782.300 Whom in USAID 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 USAID office from 

which it currently has an award. 

Subpart D—Responsibilities of Agency 

Awarding Officials 

§ 782.400 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 782, which adopts the 

Government-wide 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 

§ 782.500 Who in USAID determines that a 

recipient other than an individual violated 

the requirements of this part? 

The Director of the Office of 

Acquisition and Assistance is the 

official authorized to make the 

determination under 2 CFR 182.500. 

§ 782.505 Who in USAID determines that a 

recipient who is an individual violated the 

requirements of this part? 

The Director of the Office of 

Acquisition and Assistance is the 

official authorized to make the 

determination under 2 CFR 182.505. 

Subpart F—Definitions 

§ 782.605 Award USAID supplement to 

Government-wide definition at 2 CFR 

182.605 

Award means an award of financial 

assistance by the U.S. Agency for 

International Development 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 Government-wide rule that 

implements OMB Circular A–102 (for 

availability, see 5 CFR 1310.3) and 

specifies uniform administrative 

requirements. 

(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). 

(c) Notwithstanding paragraph (a)(2) 

of this section, this paragraph is not 

applicable to AID. 

■ 2. In title 22, chapter II, remove Part 

210 

Dated: March 24, 2011. 

M.E. Yearwood, 

Acquisitions and Assistance Policy Analyst, 

USAID. 

[FR Doc. 2011–14243 Filed 6–13–11; 8:45 am] 

BILLING CODE 6116–01–P 


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