[Federal Register Volume 61, Number 252 (Tuesday, December 31, 1996)]
[Rules and Regulations]
[Pages 69291-69292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32808]


-----------------------------------------------------------------------


DEPARTMENT OF DEFENSE
48 CFR Parts 9, 13, 23, and 52

[FAC 90-44; FAR Case 96-311; Item IV]
RIN 9000-AH06


Federal Acquisition Regulation; Certification Requirements--Drug-
Free Workplace

AGENCIES: Department of Defense (DOD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed on a final rule amending 
the Federal Acquisition Regulation (FAR) to delete the requirement for 
an offeror to provide a certification regarding a drug-free workplace. 
This regulatory action was not subject to Office of Management and 
Budget review under Executive Order 12866, dated September 30, 1993. 
This is not a major rule under 5 U.S.C. 804.

EFFECTIVE DATE: January 1, 1997.

FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758 
in reference to this FAR case. For general information, contact the FAR 
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-44, FAR case 96-311.

SUPPLEMENTARY INFORMATION:

A. Background

    This final rule implements Section 4301(a)(3) of the Clinger-Cohen 
Act of 1996 (Pub. L. 104-106). Section 4301(a)(3) amended 41 U.S.C. 701 
to eliminate the requirement for an offeror to certify that it will 
take certain actions to provide a drug-free workplace.
    A proposed rule with request for public comment was published in 
the Federal Register at 61 FR 31814, June 20, 1996. No substantive 
comments were received. The final rule includes only editorial changes 
to the proposed rule.

B. Regulatory Flexibility Act

    The Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not have a significant economic impact on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq., because, although the rule 
eliminates a certification requirement, the underlying policy regarding 
maintenance of a drug-free workplace has not changed.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose recordkeeping or information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public which require the approval of the Office of 
Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 9, 13, 23, and 52

    Government procurement.

    Dated: December 19, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, 48 CFR Parts 9, 13, 23, and 52 are amended as set forth 
below:
    1. The authority citation for 48 CFR Parts 9, 13, 23, and 52 
continues to read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 9--CONTRACTOR QUALIFICATIONS

    2. Section 9.406-2 is amended by revising paragraph (b)(1)(ii) to 
read as follows:


9.406-2  Causes for debarment.

* * * * *
    (b)(1) * * *
    (ii) Violations of the Drug-Free Workplace Act of 1988 (Public Law 
100-690), as indicated by--
    (A) Failure to comply with the requirements of the clause at 
52.223-6, Drug-Free Workplace; or
    (B) Such a number of contractor employees convicted of violations 
of criminal drug statutes occurring in the workplace as to indicate 
that the contractor has failed to make a good faith effort to provide a 
drug-free workplace (see 23.504).
* * * * *
    3. Section 9.407-2 is amended by revising paragraph (a)(4) to read 
as follows:


9. 407-2  Causes for suspension.

    (a) * * *
    (4) Violations of the Drug-Free Workplace Act of 1988 (Public Law 
100-690), as indicated by--
    (i) Failure to comply with the requirements of the clause at 
52.223-6, Drug-Free Workplace; or
    (ii) Such a number of contractor employees convicted of violations 
of criminal drug statutes occurring in the workplace as to indicate 
that the contractor has failed to make a good

[[Page 69292]]

faith effort to provide a drug-free workplace (see 23.504);
* * * * *

PART 13--SIMPLIFIED ACQUISITION PROCEDURES


13.111  [Amended]

    4. Section 13.111 is amended by removing paragraph (g) and 
redesignating paragraphs (h) and (i) as (g) and (h), respectively.

PART 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE

    5. Section 23.504 is amended by revising the introductory text of 
paragraph (a), paragraphs (a)(3) and (b); and by removing paragraph (c) 
and redesignating (d) as (c). The revised text reads as follows:


23.504  Policy.

    (a) No offeror other than an individual shall be considered a 
responsible source (see 9.104-1(g) and 19.602-1(a)(2)(i)) for a 
contract that exceeds the simplified acquisition threshold, unless it 
agrees that it will provide a drug-free workplace by--
* * * * *
    (3) Providing all employees engaged in performance of the contract 
with a copy of the statement required by paragraph (a)(1) of this 
section;
* * * * *
    (b) No individual shall be awarded a contract of any dollar value 
unless that individual agrees not to engage in the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance while performing the contract.
* * * * *
    5b. In addition to the amendments set forth above, section 23.504 
is further amended by removing ``calendar'' from paragraphs (a)(4)(ii), 
(a)(5), (a)(6), and the newly designated paragraph (c).
    6. Section 23.505 is amended by revising the section heading and 
the introductory text of paragraph (a); in paragraph (a)(2) by removing 
``; or'' and inserting a period; and by removing paragraph (b), 
redesignating paragraph (c) as (b) and revising the introductory text 
of newly designated (b). The revised text reads as follows:


23.505  Contract clause.

    (a) Contracting officers shall insert the clause at 52.223-6, Drug-
Free Workplace, except as provided in paragraph (b) of this section, in 
solicitations and contracts--
* * * * *
    (b) Contracting officers shall not insert the clause at 52.223-6, 
Drug-Free Workplace, in solicitations and contracts, if--
* * * * *
    7. Section 23.506 is amended by revising paragraph (d) to read as 
follows:


23.506  Suspension of payments, termination of contract, and debarment 
and suspension actions.

* * * * *
    (d) The specific causes for suspension of contract payments, 
termination of a contract for default, or suspension and debarment 
are--
    (1) The contractor has failed to comply with the requirements of 
the clause at 52.223-6, Drug-Free Workplace; or
    (2) The number of contractor employees convicted of violations of 
criminal drug statutes occurring in the workplace indicates that the 
contractor has failed to make a good faith effort to provide a drug-
free workplace.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.223-5  [Removed and reserved]

    8. Section 52.223-5 is removed and reserved.
    9a. Section 52.223-6 is amended--
    (a) In the introductory paragraph by removing ``23.505(b)'' and 
inserting ``23.505'';
    (b) By revising the date of the clause heading;
    (c) In the introductory text of paragraph (a) by removing the comma 
following the word ``clause'' and inserting an emdash ``--'';
    (d) At the end of paragraph (b)(6)(ii) by removing the period and 
inserting ``; and'';
    (e) By revising paragraph (c); and
    (f) In paragraph (d) by removing the ``s'' from the word 
``paragraphs''.
    The revised text reads as follows:


52.223-6  Drug-Free Workplace.

* * * * *

Drug-Free Workplace (Jan. 1997)

* * * * *
    (c) The Contractor, if an individual, agrees by award of the 
contract or acceptance of a purchase order, not to engage in the 
unlawful manufacture, distribution, dispensing, possession, or use 
of a controlled substance while performing this contract.
* * * * *
    9b. In addition to the amendments set forth above, section 52.223-6 
is further amended by removing ``calendar'' from the introductory text 
of paragraph (b) each time it appears, from paragraphs (b)(4)(ii) and 
(b)(5), and the introductory paragraph of (b)(6).

[FR Doc. 96-32808 Filed 12-30-96; 8:45 am]
BILLING CODE 6820-EP-M