80 FR 26519 - Drug- and Alcohol-Free Workforce and Mission Critical Systems Personnel Reliability Program

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 80, Issue 89 (May 8, 2015)

NASA is proposing to amend 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.

[Federal Register Volume 80, Number 89 (Friday, May 8, 2015)]
[Proposed Rules]
[Pages 26519-26521]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-10945]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1823, 1846, and 1852

RIN 2700-AE17


Drug- and Alcohol-Free Workforce and Mission Critical Systems 
Personnel Reliability Program

AGENCY: National Aeronautics and Space Administration.

ACTION: Proposed rule.

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SUMMARY: NASA is proposing to amend 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: Interested parties should submit comments to NASA at the address 
below on or before July 7, 2015 to be considered in formulation of the 
final rule.

ADDRESSES: Interested parties may submit comments, identified by RIN 
number 2700-AE17 via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. 
Comments may also be submitted to Marilyn E. Chambers via email at 
[email protected].

SUPPLEMENTARY INFORMATION: 

A. Background

    NASA is proposing to revise the NASA FAR Supplement (NFS) to remove 
policy at 1846.370 NASA contract clauses, and the related clause at 
1852.246-70, Mission Critical Space System Personnel Reliability 
Program. Additionally, other revisions, partially related to the 
removal of the Mission Critical Space System Personnel Reliability 
Program, and to clarify and update the guidance, are proposed to 
Subpart 1823.5, Drug-Free Workplace, and the associated clause at 
1852.223-74, Drug- and Alcohol-Free Workforce.
    NASA discontinued the Mission Critical Space System Personnel 
Reliability Program (the Program) effective April 8, 2014. As stated at 
79 FR 7391, the Agency conducted an analysis of its existing 
regulations and determined that 14 CFR part 1214, entitled ``Space 
Flight Mission Critical Systems Personnel Reliability Program,'' was 
obsolete and had been replaced by other measures to ensure that 
contractor employees assigned to mission-critical positions meet 
established screening requirements. Accordingly, NFS policy 
implementing the Program is no longer needed. However, the Program was 
linked to the prescription for the Drug- and Alcohol-Free Workforce 
clause which directed contracting officers to use the clause in all 
solicitations and contracts containing the clause at 1852.246-70, 
``Mission Critical Space Systems Personnel Reliability Program.'' With 
the discontinuance of the Program, the prescription for this clause 
must be revised.
    NASA's authority to require contractor alcohol and drug testing is 
derived from the Civil Space Employee Testing Act of 1991, Public Law 
102-195, sec. 21, 105 Stat. 1616 to 1619. The Act states the success of 
the United States civil space program is contingent upon the safe and 
successful development and deployment of the many varied components of 
that program and that the greatest efforts must be expended to 
eliminate the abuse of alcohol and use of illegal drugs. To this end, 
NASA is authorized to prescribe regulations which require contractors 
to conduct preemployment, reasonable suspicion, random, and post-
accident testing of contractor employees responsible for safety-
sensitive, security, or national security functions for use, in 
violation of applicable law or Federal regulation, of alcohol or a 
controlled substance. While the NFS drug and alcohol testing 
requirements are partially tied to the Mission Critical Space System 
Personnel Reliability Program, rescission of the program does not 
remove the need for such testing. Furthermore, 14 CFR, subpart 1214.5, 
contained two key terms and their definitions that will be helpful to 
Agency contracting officers in determining which contracts should 
include the drug and alcohol testing requirements. These terms are 
``mission critical space system'' and ``mission critical positions/
duties.'' This rule proposes to add these terms to NFS 1823.570, Drug- 
and Alcohol-free Workplace, and the associated clause at 1852.223-74, 
Drug- and Alcohol-Free Workforce.
    Two other terms, ``employee'' and ``controlled substance,'' are 
referenced, but not defined at 1823.570-1. These terms are defined at 
FAR 23.503. Additionally, NFS 1823.570-1 contained the statement, ``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 of 1823.570 to 1823.570-3 and the clause at 1852.223-
74.'' This exemption of a controlled substance used in accordance with 
the terms of a valid prescription, or other uses authorized by law was 
removed from the definitions and added to paragraph (c)(1) of the 
clause, so that contractors may easily see when use of a controlled 
substance may be permitted.
    A revised section (b)(2) to the clause adds a reference to NASA 
Procedural Requirements (NPR) 3792.1, NASA's Plan for a Drug Free 
Workplace, Appendices A and B on ``Testing Designated Positions'' 
(TDPs) for federal employees, as a guide for contractors to use when 
determining if an employee is in a sensitive position and subject to 
drug and alcohol testing.
    The most recent titles and references for the applicable Federal 
drug testing programs are added: ``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. Additionally, the rule expands the list of drugs required to 
be tested for from ``marijuana and cocaine'' to add 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.
    Based on the Civil Space Employee Testing Act requirements, the 
current clause at 1852.223-74 requires contractors to conduct ``post-
accident'' drug and alcohol testing. A new paragraph (5) is added to 
specify 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. Additionally, the 
contractor is advised that the contracting officer may request the 
results of this post-accident testing. The purpose of this is to inform 
any accident investigation NASA may conduct. The contractor is required 
to provide only information on whether the testing was conducted and 
whether results showed any evidence of drug or

[[Page 26520]]

alcohol use in violation of the clause. The contractor is not required 
to provide the names of individuals tested or of individual employee's 
test results.

B. 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 3(f) of 
Executive Order 12866. This proposed rule is not a major rule under 5 
U.S.C. 804.

C. Regulatory Flexibility Act

    NASA does not expect this proposed rule to 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. 
However, an Initial Regulatory Flexibility Analysis has been performed 
and is summarized as follows:
     This proposed rule amends the NFS to remove requirements 
related to the Mission Critical Space System Personnel Reliability 
Program which was discontinued effective April 8, 2014. The NFS 
contains 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.
     NFS 1823.570-2, Contract clause, requires the contracting 
officer to insert the clause at 1852.223-74, Drug- and Alcohol-Free 
Workforce, in all solicitations and contracts containing the clause at 
1852.246-70, ``Mission Critical Space Systems Personnel Reliability 
Program.'' With the discontinuance of the Program, the prescription for 
this is revised to remove the reference to the Program. However, 
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,'' previously used in the Program, are 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. While the term ``mission 
critical space systems'' is carried over, the definition is revised 
from ``The Space Shuttle and other critical space systems, including 
Space Station Freedom, designated Expendable Launch Vehicles (ELV's), 
designated payloads, Shuttle Carrier Aircraft and other designated 
resources that provide access to space'' to ``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.'' The revised definition deletes 
obsolete references such as the ``Space Station Freedom'' and ``Shuttle 
Carrier Aircraft'' and characterizes the systems which are critical to 
NASA's space mission.
     The statement that use of a controlled substance in 
accordance with a valid prescription or otherwise authorized by law is 
moved from the definitions to 1823.570-1 to paragraph (c)(1) of the 
clause, so that contractors may readily see when use of a controlled 
substance may be permitted.
     A reference is added to NASA Procedural Requirements (NPR) 
3792.1, NASA's Plan for a Drug Free Workplace, Appendices A and B on 
``Testing Designated Positions'' (TDPs) for federal employees, as a 
guide for contractors to use when designating ``sensitive'' positions. 
This is intended as a guide and does not change the application of the 
policy.
     The clause contained an outdated Federal Register 
reference to the Mandatory Guidelines for Federal Workplace Drug 
Testing Programs, published by the Department of Health and Human 
Services. The reference to the Department of Transportation's 
procedures at 49 CFR part 40 is revised to include the appropriate 
title, Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs.
     The list of drugs required to be tested is revised from 
marijuana and cocaine to add 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 
part 40 Section 40.85.
     A new paragraph (5) is added to specify 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. Additionally, the contractor is informed that the 
contracting officer may request the results of this post-accident 
testing.
    The proposed rule will not change the application of the clause. 
This proposed rule imposes no new reporting requirements. This proposed 
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. NASA invites comments 
from small business concerns and other interested parties on the 
expected impact of this proposed rule on small entities. NASA will also 
consider comments from small entities concerning the existing 
regulations in subparts affected by this proposed rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 and RIN number 2700-AE17 in 
correspondence.

D. Paperwork Reduction Act

    The proposed 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 1823, 1846, and 1852

    Government procurement.

Cynthia D. Boots,
Alternate Federal Register Liaison.

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

[[Page 26521]]

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

0
1. The authority citation for part 1823 continues to read as follows:

    Authority: 42 U.S.C. 2473(c)(1)


1823.570-1  [Revised]

0
2. Section 1823.570-1 is revised by:
0
a. Removing the introductory paragraph,
0
b. Revising the definition for ``Employee in a sensitive position'', 
and
0
c. Adding the definitions for ``Mission Critical Space Systems'' and 
``Mission Critical Positions/Duties'' to read as follows:

Subpart 1823.5--Drug-Free Workplace

* * * * *


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.
* * * * *


1823.570-2  [Revised]

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 continues to read as follows:

    Authority: U.S.C. 2473(c)(1).


1846.370  [Revised]

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.


1852.223-74  [Revised]

0
7. Section 1852.223-74 is revised by:
0
a. Amending paragraph (a),
0
b. Amending paragraphs (b)(2) through (b)(4)
0
c. Adding a new paragraph (b)(5) to read as follows:


1852.223-74  Drug- and alcohol-free workforce.

    As prescribed in 1823.570-2, insert the following clause:

Drug- and Alcohol-Free Workforce (XX/XXXX)

    (a) 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.]
    (b) * * *
    (2) In determining which positions to designate as 
``sensitive,'' the contractor may use NASA Procedural Requirements 
(NPR) 3792.1, NASA's Plan for a Drug Free Workplace, Appendices A 
and B on ``Testing Designated Positions'' (TDPs) for Federal 
employees, 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]

0
8. Section 1852.246-70 is removed.

[FR Doc. 2015-10945 Filed 5-7-15; 8:45 am]
 BILLING CODE 7510-13-P