[Federal Register Volume 80, Number 194 (Wednesday, October 7, 2015)]
[Rules and Regulations]
[Pages 60552-60555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25394]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1823, 1846, and 1852

RIN 2700-AE17


NASA Federal Acquisition Regulation Supplement: Drug- and 
Alcohol-Free Workforce and Mission Critical Systems Personnel 
Reliability Program (NFS Case 2015-N002)

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

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SUMMARY: NASA is issuing a final rule amending the NASA FAR Supplement 
(NFS) to remove requirements related to the discontinued Space Flight 
Mission Critical Systems Personnel Reliability Program and to revise 
requirements related to contractor drug and alcohol testing.

DATES: Effective November 6, 2015.

[[Page 60553]]


FOR FURTHER INFORMATION CONTACT: Marilyn Chambers, NASA, Office of 
Procurement, email: [email protected], or 202-358-5154.

SUPPLEMENTARY INFORMATION: 

I. Background

    The revision to this rule is part of NASA's retrospective plan 
under Executive Order (EO) 13563 completed in August 2011. NASA 
published a proposed rule in the Federal Register at 80 FR 26519 on May 
8, 2015, to amend the NASA FAR Supplement (NFS) to remove 1846.370, 
NASA contract clauses, and the related clause at 1852.246-70, Mission 
Critical Space System Personnel Reliability Program. Additionally, 
Subpart 1823.5, Drug-Free Workplace, and the associated clause at 
1852.223-74, Drug- and Alcohol-Free Workforce are amended to make 
revisions related to the removal of the Mission Critical Space System 
Personnel Reliability Program and also to clarify and update the clause 
and its prescription. One respondent submitted public comments on the 
proposed rule.

II. Discussion and Analysis

    NASA has reviewed the public comment submitted in the development 
of the final rule. A discussion of the comments and the changes made as 
a result of those comments is provided, as follows:

A. Changes

    There is one minor change made in the final rule in response to the 
public comment received.

B. Analysis of Public Comment

    One respondent submitted five comments.
    Comment: The respondent found the policy on the use of a controlled 
substance to be extremely limited and with additional monitoring 
requirements to ensure proper monitoring or assignment to a less 
critical position during the term of usage.
    Response: The policy on the use of a controlled substance has not 
been changed in this rule. It permits the use of such substances when a 
doctor prescribes their use or for other uses authorized by law.
    Comment: The respondent recommended referencing Appendix C, in 
addition to Appendices A and B of NASA Procedural Requirements (NPR) 
3792.1, NASA's Plan for a Drug Free Workplace, for use as a guide for 
contractors to use when determining if an employee is in a sensitive 
position and subject to drug and alcohol testing. Appendix C of the 
Procedural Requirements provides the most detailed guidance, and should 
be included in the revised section. Additionally, the respondent stated 
that contractors should be required to follow the NPR and not use the 
NPR as guidance only.
    Response: NASA agrees the policy should have referenced Appendix C, 
NASA Guidelines for Determining Testing Designated Positions (TDPs) 
Subject to Random Drug Testing, of NPR 3792.1. To avoid future errors 
when the NPR is updated resulting in changes to specific appendices, 
1852.223-74 Drug- and alcohol-free workforce, paragraph (b)(2), is 
revised to generically reference the guidance on designating TDP 
contained in the NPR rather than referencing a specific appendix. While 
the guidance on designating TDP is helpful information for contractors, 
the NPR is a NASA-internal policy, which applies only to NASA civil 
servants. Therefore, contractors must make TDP determinations for their 
employees as part of complying with the requirements set forth in NFS 
1852.223-17.
    Comment: The respondent recommended that the list of substances 
tested for be updated a minimum of every six months or as necessary.
    Response: The NASA drug testing program in this rule follows the 
``Mandatory Guidelines for Federal Workplace Drug Testing Programs'' 
published by the Department of Health and Human Services, 73 FR 71858, 
and the procedures in 49 CFR part 40, ``Procedures for Transportation 
Workplace Drug and Alcohol Testing Programs.'' These regulations list 
which substances will be tested for. Changes to these regulations are 
outside the scope of this rule.
    Comment: The respondent recommends a variety of changes to the 
post-accident drug testing requirements of the rule, including 
expanding it to when there is any injury or property damage over $500; 
requiring the contractor always submit post-accident drug test results 
and requiring identification of the individual tested to the 
Government. Additionally, the respondent recommends hair follicle 
testing in lieu of urine testing.
    Response: NASA does not concur with these recommended changes. The 
requirements for post-accident drug testing in the rule were 
thoughtfully considered to balance the seriousness of the accident, the 
contributing factors, the privacy of individuals tested, and the burden 
to contractors in conducting drug tests. The method of testing, i.e., 
hair follicle versus urine, is determined by the Department of Health 
and Human Services and Department of Transportation regulations 
referenced previously.
    Comment: The respondent recommends that the rule include a 
requirement for a drug-free workplace policy with the following 
components: A written policy, access to employee assistance, employee 
education, supervisor training, and drug testing.
    Response: This rule sets forth NASA's contractor drug testing 
policy, based on Department of Health and Human Services and Department 
of Transportation regulations referenced previously. The other elements 
listed are required under the Federal Acquisition Regulation clause at 
52.223-6, Drug-Free Workplace.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule is not a significant regulatory action under section 6(b) of 
Executive Order 12866. This rule is not a major rule under 5 U.S.C. 
804.

IV. Regulatory Flexibility Act

    NASA has prepared a Final Regulatory Flexibility Analysis 
consistent with the Regulatory Flexibility Act (FRFA), 5 U.S.C. 601, et 
seq. The FRFA is summarized as follows:
    This rule is necessary to amend the NASA FAR Supplement (NFS) to 
remove requirements related to the Mission Critical Space System 
Personnel Reliability Program, which was discontinued effective April 
8, 2014. The NFS contained a clause at 1852.246-70, Mission Critical 
Space System Personnel Reliability Program, which implemented the 
requirements of the Program on NASA contracts involving critical 
positions designated in accordance with 14 CFR 1214.5, Mission Critical 
Space System Personnel Reliability Program. With the discontinuance of 
the Program, the clause is no longer necessary and is removed.
    Removal of the NFS clause at 1852.246-70 necessitated changes to 
the prescription at NFS 1823.570-2, Contract clause and to the clause 
at 1852.223-74, Drug- and Alcohol-Free

[[Page 60554]]

Workforce. The NFS clause at 1852.223-74 directed the inclusion of the 
Drug- and Alcohol-Free Workforce clause at 1852.223-74 in all 
solicitations and contracts containing the clause at 1852.246-70, 
Mission Critical Space Systems Personnel Reliability Program. Because 
NASA's contractor drug and alcohol testing requirements are based on 
the statutory requirements of the Civil Space Employee Testing Act of 
1991, Public Law 102-195, sec. 21, 105 Stat. 1616 to 1619, the terms 
``mission critical space systems'' and ``mission critical positions/
duties,'' used in the Act, and previously used in the Program, were 
carried over to the drug and alcohol testing clause as a point of 
reference for defining contract personnel and contract functions which 
come under the civil space employee testing requirements. Other 
revisions to correct and clarify the requirements in 1852.223-74, Drug- 
and Alcohol-Free Workforce, include--
     Moving the guidance on the use of a controlled substance 
from the definition to a separate paragraph;
     Referencing NASA Procedural Requirements (NPR) 3792.1, 
NASA's Plan for a Drug Free Workplace, on ``Testing Designated 
Positions'' (TDPs) for federal employees, as a guide for contractors to 
use when designating ``sensitive'' positions;
     Updating outdated references to the Mandatory Guidelines 
for Federal Workplace Drug Testing Programs, published by the 
Department of Health and Human Services and Department of 
Transportation's procedures at 49 CFR part 40 and updating the list of 
drugs required to be tested in accordance with the Mandatory Guidelines 
for Federal Workplace Drug Testing Programs; and
     Clarifying that post-accident testing is required when the 
contractor determines the employee's actions are reasonably suspected 
of having caused or contributed to an accident resulting in death or 
personal injury requiring immediate hospitalization or damage to 
Government or private property estimated to exceed $20,000 and that the 
contracting officer may request the results of this post-accident 
testing.
    The rule does not change the application of the clause at 1852.223-
74, Drug- and Alcohol-Free Workforce. This proposed rule imposes no new 
reporting requirements.
    This rule does not duplicate, overlap, or conflict with any other 
Federal rules. No alternatives were identified that would meet the 
objectives of the rule. Excluding small business concerns that may be 
subject to the rule would not be in the best interest of the small 
business concerns or the Government, because drug and alcohol testing 
of contractors performing functions related to mission critical space 
systems is statutorily mandated and is necessary in order to protect 
human life and the nation's civil space assets.

V. Paperwork Reduction Act

    The final rule does not contain information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. Chapter 35).

List of Subjects in 48 CFR Parts 1823, 1846, and 1852

    Government procurement.

Manuel Quinones,
Federal Register Liaison.

    Accordingly, 48 CFR parts 1823, 1846, and 1852 are amended as 
follows:

PART 1823--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

    1. The authority citation for part 1823 is revised to read as 
follows:

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.1823.570-1.


0
2. Section 1823.570-1 is revised to read as follows:


1823.570-1  Definitions.

    Employee in a sensitive position means a contractor or 
subcontractor employee who has been granted access to classified 
information; a contractor or subcontractor employee in other positions 
that the contractor or subcontractor determines could reasonably be 
expected to affect safety, security, National security, or functions 
other than the foregoing requiring a high degree of trust and 
confidence; and includes any employee performing in a position 
designated ``mission critical'' or performing mission-critical duties. 
The term also includes any applicant who is tentatively selected for a 
position described in this paragraph.
    Mission Critical Space Systems means the collection of all space-
based and ground-based systems used to conduct space missions or 
support activity in space, including, but not limited to, the crewed 
space system, space-based communication and navigation systems, launch 
systems, and mission/launch control.
    Mission Critical Positions/Duties means positions or duties which, 
if performed in a faulty, negligent, or malicious manner, could 
jeopardize mission critical space systems and/or delay a mission.
    Use, in violation of applicable law or Federal regulation, of 
alcohol includes having, while on duty or during a preemployment 
interview, an alcohol concentration of 0.04 percent by weight or more 
in the blood, as measured by chemical test of the individual's breath 
or blood. An individual's refusal to submit to such test is presumptive 
evidence of use, in violation of applicable law or Federal regulation, 
of alcohol.

0
3. Section 1823.570-2 is revised to read as follows:


1823.570-2  Contract clause.

    The contracting officer shall insert the clause at 1852.223-74, 
Drug- and Alcohol-Free Workforce, in all solicitations and contracts 
exceeding $5 million in which work is performed by an employee in a 
sensitive position. However, the contracting officer shall not insert 
the clause at 1852.223-74 in solicitations and contracts for commercial 
items.

PART 1846--QUALITY ASSURANCE

0
4. The authority citation for part 1846 is revised to read as follows:

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.


0
5. Section 1846.370 is revised to read as follows:


1846.370  NASA contract clauses.

    The contracting officer shall insert the clause at 1852.246-73, 
Human Space Flight Item, in solicitations and contracts for human space 
flight hardware and flight-related equipment if the highest available 
quality standards are necessary to ensure astronaut safety.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. The authority citation for part 1852 continues to read as follows:

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.


0
7. Amend section 1852.223-74 by revising the date of the clause and 
paragraphs (a) and (b) to read as follows:


1852.223-74  Drug- and alcohol-free workforce.

* * * * *

Drug- and Alcohol-Free Workforce

(Nov 2015)

    (a) Definitions.
    Employee in a sensitive position means a contractor or 
subcontractor

[[Page 60555]]

employee who has been granted access to classified information; a 
contractor or subcontractor employee in other positions that the 
contractor or subcontractor determines could reasonably be expected to 
affect safety, security, National security, or functions other than the 
foregoing requiring a high degree of trust and confidence; and includes 
any employee performing in a position designated mission critical or 
performing mission critical duties. The term also includes any 
applicant who is tentatively selected for a position described in this 
paragraph.
    Mission Critical Space Systems means the collection of all space-
based and ground-based systems used to conduct space missions or 
support activity in space, including, but not limited to, the crewed 
space system, space-based communication and navigation systems, launch 
systems, and mission/launch control.
    Mission Critical Positions/Duties means positions or duties which, 
if performed in a faulty, negligent, or malicious manner, could 
jeopardize mission critical space systems and/or delay a mission.
    (b)(1) The Contractor shall institute and maintain a program for 
achieving a drug- and alcohol-free workforce. As a minimum, the program 
shall provide for pre-employment, reasonable suspicion, random, post-
accident, and periodic recurring (follow-up) testing of contractor 
employees in sensitive positions for use, in violation of applicable 
law or Federal regulation, of alcohol or a controlled substance. The 
Contractor may establish its testing or rehabilitation program in 
cooperation with other contractors or organizations.
    (2) In determining which positions to designate as ``sensitive,'' 
the contractor may use the guidelines for determining testing 
designated positions in NASA Procedural Requirements (NPR) 3792.1, 
NASA's Plan for a Drug Free Workplace, as a guide for the criteria and 
in designating ``sensitive'' positions for contractor employees.
    (3) This clause neither prohibits nor requires the Contractor to 
test employees in a foreign country. If the Contractor chooses to 
conduct such testing, this does not authorize the Contractor to violate 
foreign law in conducting such testing.
    (4) The Contractor's program shall conform to the ``Mandatory 
Guidelines for Federal Workplace Drug Testing Programs'' published by 
the Department of Health and Human Services (73 FR 71858) and the 
procedures in 49 CFR part 40, ``Procedures for Transportation Workplace 
Drug and Alcohol Testing Programs.''
    (i) The Contractor shall test for the following drugs: Marijuana, 
Cocaine, Amphetamines, Opiates and Phencyclidine (PCP) in accordance 
with the Mandatory Guidelines for Federal Workplace Drug Testing 
Programs Mandatory Guidelines, Section 3.1, and 49 CFR 40.85.
    (ii) The contractor shall comply with the requirements and 
procedures for alcohol testing at 49 CFR part 40.
    (iii) The use of a controlled substance in accordance with the 
terms of a valid prescription, or other uses authorized by law shall 
not be subject to the requirements this clause.
    (5) The contractor shall conduct post-accident testing when the 
contractor determines the employee's actions are reasonably suspected 
of having caused or contributed to an accident resulting in death or 
personal injury requiring immediate hospitalization or damage to 
Government or private property estimated to exceed $20,000. Upon 
request, the Contractor shall provide the results of post-accident 
testing to the Contracting Officer.
* * * * *


1852.246-70  [Removed and Reserved]

0
8. Section 1852.246-70 is removed and reserved.

[FR Doc. 2015-25394 Filed 10-6-15; 8:45 am]
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