80 FR 60552 - NASA Federal Acquisition Regulation Supplement: Drug- and Alcohol-Free Workforce and Mission Critical Systems Personnel Reliability Program (NFS Case 2015-N002)

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 80, Issue 194 (October 7, 2015)

Page Range		60552-60555
FR Document		2015-25394
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.
Federal Register, Volume 80 Issue 194 (Wednesday, October 7, 2015)
[Federal Register Volume 80, Number 194 (Wednesday, October 7, 2015)]
[Rules and Regulations]
[Pages 60552-60555]
From the Federal Register Online  [www.thefederalregister.org]
[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: Marilyn.Chambers@nasa.gov, 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]
BILLING CODE 7510-13-P
60552 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations

B. Supplemental Final Regulatory C. Congressional Review Act PART 12—RESILIENCY,
Flexibility Analysis REDUNDANCY, AND RELIABILITY OF
26. The Commission will send a copy COMMUNICATIONS
24. As required by the Regulatory of this Order on Reconsideration to
Flexibility Act of 1980 (RFA), the Congress and the Government ■ 1. The authority citation for part 12 is
Commission has prepared the following Accountability Office pursuant to the revised to read as follows:
Supplemental Final Regulatory Congressional Review Act, see 5 U.S.C. Authority: Sections 1, 4(i), 4(j), 4(o), 5(c),
Flexibility Analysis (FRFA) relating to 801(a)(1)(A). 201(b), 214(d), 218, 219, 251(e)(3), 301,
this Order on Reconsideration. As 303(b), 303(g), 303(j), 303(r), 307, 309(a), 316,
V. Ordering Clauses 332, 403, 405, 615a-1, 615c, 621(b)(3), and
discussed in the initial FRFA in this
proceeding, the Commission sought 621(d) of the Communications Act of 1934,
27. Accordingly, it is ordered, as amended, 47 U.S.C. 151, 154(i), 154 (j),
comment on alternatives for small pursuant to sections 1, 4(i), 4(j), 4(o), 154 (o), 155(c), 201(b), 214(d), 218, 219,
entities including: (1) The establishment 201(b), 214(d), 218, 251(e)(3), 301, 251(e)(3), 301, 303(b), 303(g), 303(j), 303(r),
of different compliance and reporting 303(b), 303(g), 303(r), 307, 309(a), 316, 307, 309(a), 316, 332, 403, 405, 615a-1, 615c,
requirements; (2) clarification, 332, 403, 405, 615a–1, and 615c of the 621(b)(3), and 621(d) unless otherwise noted.
consolidation, or simplification of Communications Act of 1934, as ■ 2. Amend § 12.4 by revising
compliance or reporting requirements amended, 47 U.S.C. 151, 154(i)–(j) & (o), paragraphs (c)(1)(ii) introductory text
for small entities; (3) the use of 201(b), 214(d), 218, 251(e)(3), 301, and (c)(3)(ii) introductory text to read as
performance, rather than design, 303(b), 303(g), 303(r), 307, 309(a), 316, follows:
standards; and (4) an exemption from 332, 403, 405, 615a–1, and 615c, and
coverage of the rule, or any part thereof, sections 1.108 and 1.429 of the § 12.4 Reliability of covered 911 service
for small entities. As the Commission providers.
Commission’s rules, 47 CFR 1.1, 1.429,
stated in the FRFA, ‘‘[w]hile we that this Order on Reconsideration is * * * * *
acknowledge that small or rural service adopted. (c) * * *
providers may have limited resources or (1) * * *
28. It is further ordered that Part 12 (ii) If a Covered 911 Service Provider
operate in remote areas, 911 is no less
of the Commission’s rules, 47 CFR part does not conform with all of the
a critical public service in any part of
12, is amended as set forth in the elements in paragraph (c)(1)(i) of this
the nation, and we decline to establish
Appendix, and that such rule section with respect to the 911 service
two tiers of 911 reliability based on amendments shall be effective 30 days provided to one or more PSAPs, it must
economics or geography.’’ Accordingly, after publication in the Federal certify with respect to each such PSAP:
we intend our 911 reliability Register. * * * * *
certification requirements—including (3) * * *
the clarifications set forth in this Order 29. It is further ordered that the
Motion for Clarification or, in the (ii) If a Covered 911 Service Provider
on Reconsideration—to apply to all does not conform with all of the
Covered 911 Service Providers without Alternative, Petition for Partial
Reconsideration of Intrado, Inc., is elements in paragraph (c)(3)(i) of this
exceptions based on size or location, section, it must certify with respect to
and we also decline to create a specific granted to the extent described herein.
each such 911 Service Area:
waiver procedure for entities to seek 30. It is further ordered that the * * * * *
exemption from the rules. Commission shall send a copy of this [FR Doc. 2015–25459 Filed 10–6–15; 8:45 am]
25. That said, the Commission’s Order on Reconsideration to Congress BILLING CODE 6712–01–P
certification approach to 911 reliability and to the Government Accountability
continues to ‘‘allow[ ] flexibility for Office pursuant to the Congressional
small or rural providers to comply with Review Act, see 5 U.S.C. 801(a)(1)(A). NATIONAL AERONAUTICS AND
our rules in the manner most 31. It is further ordered that the SPACE ADMINISTRATION
appropriate for their networks, and Commission’s Consumer and
certain requirements will, by their Governmental Affairs Bureau, Reference 48 CFR Parts 1823, 1846, and 1852
nature, only apply to larger providers.’’ Information Center, shall send a copy of RIN 2700–AE17
In contrast to more prescriptive this Order on Reconsideration,
reliability requirements, the option to including the Supplemental Final NASA Federal Acquisition Regulation
certify reasonable alternative measures Regulatory Flexibility Analysis, to the Supplement: Drug- and Alcohol-Free
in lieu of specified best practices Chief Counsel for Advocacy of the Small Workforce and Mission Critical
minimizes regulatory burdens on small Business Administration. Systems Personnel Reliability Program
entities by recognizing a variety of (NFS Case 2015–N002)
Federal Communications Commission.
acceptable approaches to providing AGENCY: National Aeronautics and
Marlene H. Dortch,
reliable 911 service. If anything, the Space Administration.
Secretary.
clarifications provided above offer ACTION: Final rule.
additional flexibility to small entities by List of Subjects in 47 CFR part 12
making clear that they may certify SUMMARY: NASA is issuing a final rule
Resiliency, Redundancy and
asabaliauskas on DSK5VPTVN1PROD with RULES

reasonable alternative measures in lieu amending the NASA FAR Supplement
of circuit audits and tagging depending Reliability of Communications. (NFS) to remove requirements related to
on their individual circumstances and the discontinued Space Flight Mission
Final Rules
network architecture. Thus, the rules as Critical Systems Personnel Reliability
clarified in this Order on For the reasons discussed in the Program and to revise requirements
Reconsideration continue to take into preamble, the Federal Communications related to contractor drug and alcohol
account the unique interests of small Commission amends 47 CFR part 12 as testing.
entities as required by the RFA. follows: DATES: Effective November 6, 2015.

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FOR FURTHER INFORMATION CONTACT: Appendix C of the Procedural Services and Department of
Marilyn Chambers, NASA, Office of Requirements provides the most Transportation regulations referenced
Procurement, email: detailed guidance, and should be previously.
Marilyn.Chambers@nasa.gov, or 202– included in the revised section. Comment: The respondent
358–5154. Additionally, the respondent stated that recommends that the rule include a
SUPPLEMENTARY INFORMATION: contractors should be required to follow requirement for a drug-free workplace
the NPR and not use the NPR as policy with the following components:
I. Background guidance only. A written policy, access to employee
The revision to this rule is part of Response: NASA agrees the policy assistance, employee education,
NASA’s retrospective plan under should have referenced Appendix C, supervisor training, and drug testing.
Executive Order (EO) 13563 completed NASA Guidelines for Determining Response: This rule sets forth NASA’s
in August 2011. NASA published a Testing Designated Positions (TDPs) contractor drug testing policy, based on
proposed rule in the Federal Register at Subject to Random Drug Testing, of NPR Department of Health and Human
80 FR 26519 on May 8, 2015, to amend 3792.1. To avoid future errors when the Services and Department of
the NASA FAR Supplement (NFS) to NPR is updated resulting in changes to Transportation regulations referenced
remove 1846.370, NASA contract specific appendices, 1852.223–74 Drug- previously. The other elements listed
clauses, and the related clause at and alcohol-free workforce, paragraph are required under the Federal
1852.246–70, Mission Critical Space (b)(2), is revised to generically reference Acquisition Regulation clause at
System Personnel Reliability Program. the guidance on designating TDP 52.223–6, Drug-Free Workplace.
Additionally, Subpart 1823.5, Drug-Free contained in the NPR rather than
III. Executive Orders 12866 and 13563
Workplace, and the associated clause at referencing a specific appendix. While
1852.223–74, Drug- and Alcohol-Free the guidance on designating TDP is Executive Orders (E.O.s) 12866 and
Workforce are amended to make helpful information for contractors, the 13563 direct agencies to assess all costs
revisions related to the removal of the NPR is a NASA-internal policy, which and benefits of available regulatory
Mission Critical Space System applies only to NASA civil servants. alternatives and, if regulation is
Personnel Reliability Program and also Therefore, contractors must make TDP necessary, to select regulatory
to clarify and update the clause and its determinations for their employees as approaches that maximize net benefits
prescription. One respondent submitted part of complying with the requirements (including potential economic,
public comments on the proposed rule. set forth in NFS 1852.223–17. environmental, public health and safety
Comment: The respondent effects, distributive impacts, and
II. Discussion and Analysis recommended that the list of substances equity). E.O. 13563 emphasizes the
NASA has reviewed the public tested for be updated a minimum of importance of quantifying both costs
comment submitted in the development every six months or as necessary. and benefits, of reducing costs, of
of the final rule. A discussion of the Response: The NASA drug testing harmonizing rules, and of promoting
comments and the changes made as a program in this rule follows the flexibility. This rule is not a significant
result of those comments is provided, as ‘‘Mandatory Guidelines for Federal regulatory action under section 6(b) of
follows: Workplace Drug Testing Programs’’ Executive Order 12866. This rule is not
published by the Department of Health a major rule under 5 U.S.C. 804.
A. Changes and Human Services, 73 FR 71858, and
the procedures in 49 CFR part 40, IV. Regulatory Flexibility Act
There is one minor change made in
the final rule in response to the public ‘‘Procedures for Transportation NASA has prepared a Final
comment received. Workplace Drug and Alcohol Testing Regulatory Flexibility Analysis
Programs.’’ These regulations list which consistent with the Regulatory
B. Analysis of Public Comment substances will be tested for. Changes to Flexibility Act (FRFA), 5 U.S.C. 601, et
One respondent submitted five these regulations are outside the scope seq. The FRFA is summarized as
comments. of this rule. follows:
Comment: The respondent found the Comment: The respondent This rule is necessary to amend the
policy on the use of a controlled recommends a variety of changes to the NASA FAR Supplement (NFS) to
substance to be extremely limited and post-accident drug testing requirements remove requirements related to the
with additional monitoring of the rule, including expanding it to Mission Critical Space System
requirements to ensure proper when there is any injury or property Personnel Reliability Program, which
monitoring or assignment to a less damage over $500; requiring the was discontinued effective April 8,
critical position during the term of contractor always submit post-accident 2014. The NFS contained a clause at
usage. drug test results and requiring 1852.246–70, Mission Critical Space
Response: The policy on the use of a identification of the individual tested to System Personnel Reliability Program,
controlled substance has not been the Government. Additionally, the which implemented the requirements of
changed in this rule. It permits the use respondent recommends hair follicle the Program on NASA contracts
of such substances when a doctor testing in lieu of urine testing. involving critical positions designated
prescribes their use or for other uses Response: NASA does not concur in accordance with 14 CFR 1214.5,
authorized by law. with these recommended changes. The Mission Critical Space System
Comment: The respondent requirements for post-accident drug Personnel Reliability Program. With the
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recommended referencing Appendix C, testing in the rule were thoughtfully discontinuance of the Program, the
in addition to Appendices A and B of considered to balance the seriousness of clause is no longer necessary and is
NASA Procedural Requirements (NPR) the accident, the contributing factors, removed.
3792.1, NASA’s Plan for a Drug Free the privacy of individuals tested, and Removal of the NFS clause at
Workplace, for use as a guide for the burden to contractors in conducting 1852.246–70 necessitated changes to the
contractors to use when determining if drug tests. The method of testing, i.e., prescription at NFS 1823.570–2,
an employee is in a sensitive position hair follicle versus urine, is determined Contract clause and to the clause at
and subject to drug and alcohol testing. by the Department of Health and Human 1852.223–74, Drug- and Alcohol-Free

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60554 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations

Workforce. The NFS clause at 1852.223– drug and alcohol testing of contractors mission critical space systems and/or
74 directed the inclusion of the Drug- performing functions related to mission delay a mission.
and Alcohol-Free Workforce clause at critical space systems is statutorily Use, in violation of applicable law or
1852.223–74 in all solicitations and mandated and is necessary in order to Federal regulation, of alcohol includes
contracts containing the clause at protect human life and the nation’s civil having, while on duty or during a
1852.246–70, Mission Critical Space space assets. preemployment interview, an alcohol
Systems Personnel Reliability Program. concentration of 0.04 percent by weight
Because NASA’s contractor drug and V. Paperwork Reduction Act
or more in the blood, as measured by
alcohol testing requirements are based The final rule does not contain chemical test of the individual’s breath
on the statutory requirements of the information collection requirements that or blood. An individual’s refusal to
Civil Space Employee Testing Act of require the approval of the Office of submit to such test is presumptive
1991, Public Law 102–195, sec. 21, 105 Management and Budget under the evidence of use, in violation of
Stat. 1616 to 1619, the terms ‘‘mission Paperwork Reduction Act (44 U.S.C. applicable law or Federal regulation, of
critical space systems’’ and ‘‘mission Chapter 35). alcohol.
critical positions/duties,’’ used in the ■ 3. Section 1823.570–2 is revised to
List of Subjects in 48 CFR Parts 1823,
Act, and previously used in the read as follows:
1846, and 1852
Program, were carried over to the drug
and alcohol testing clause as a point of Government procurement. 1823.570–2 Contract clause.
reference for defining contract Manuel Quinones, The contracting officer shall insert the
personnel and contract functions which clause at 1852.223–74, Drug- and
Federal Register Liaison.
come under the civil space employee Alcohol-Free Workforce, in all
testing requirements. Other revisions to Accordingly, 48 CFR parts 1823, 1846, solicitations and contracts exceeding $5
correct and clarify the requirements in and 1852 are amended as follows: million in which work is performed by
1852.223–74, Drug- and Alcohol-Free an employee in a sensitive position.
Workforce, include— PART 1823—ENVIRONMENT, ENERGY
AND WATER EFFICIENCY, However, the contracting officer shall
• Moving the guidance on the use of not insert the clause at 1852.223–74 in
a controlled substance from the RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL solicitations and contracts for
definition to a separate paragraph; commercial items.
• Referencing NASA Procedural SAFETY, AND DRUG-FREE
Requirements (NPR) 3792.1, NASA’s WORKPLACE PART 1846—QUALITY ASSURANCE
Plan for a Drug Free Workplace, on 1. The authority citation for part 1823
‘‘Testing Designated Positions’’ (TDPs) is revised to read as follows: ■ 4. The authority citation for part 1846
for federal employees, as a guide for is revised to read as follows:
contractors to use when designating Authority: 51 U.S.C. 20113(a) and 48 CFR
chapter 1.1823.570–1. Authority: 51 U.S.C. 20113(a) and 48 CFR
‘‘sensitive’’ positions; chapter 1.
• Updating outdated references to the ■ 2. Section 1823.570–1 is revised to
Mandatory Guidelines for Federal read as follows: ■ 5. Section 1846.370 is revised to read
Workplace Drug Testing Programs, as follows:
published by the Department of Health 1823.570–1 Definitions.
1846.370 NASA contract clauses.
and Human Services and Department of Employee in a sensitive position
Transportation’s procedures at 49 CFR means a contractor or subcontractor The contracting officer shall insert the
part 40 and updating the list of drugs employee who has been granted access clause at 1852.246–73, Human Space
required to be tested in accordance with to classified information; a contractor or Flight Item, in solicitations and
the Mandatory Guidelines for Federal subcontractor employee in other contracts for human space flight
Workplace Drug Testing Programs; and positions that the contractor or hardware and flight-related equipment
• Clarifying that post-accident testing subcontractor determines could if the highest available quality standards
is required when the contractor reasonably be expected to affect safety, are necessary to ensure astronaut safety.
determines the employee’s actions are security, National security, or functions
PART 1852—SOLICITATION
reasonably suspected of having caused other than the foregoing requiring a high
PROVISIONS AND CONTRACT
or contributed to an accident resulting degree of trust and confidence; and
CLAUSES
in death or personal injury requiring includes any employee performing in a
immediate hospitalization or damage to position designated ‘‘mission critical’’ ■ 6. The authority citation for part 1852
Government or private property or performing mission-critical duties. continues to read as follows:
estimated to exceed $20,000 and that The term also includes any applicant
who is tentatively selected for a position Authority: 51 U.S.C. 20113(a) and 48 CFR
the contracting officer may request the chapter 1.
results of this post-accident testing. described in this paragraph.
The rule does not change the Mission Critical Space Systems means ■ 7. Amend section 1852.223–74 by
application of the clause at 1852.223– the collection of all space-based and revising the date of the clause and
74, Drug- and Alcohol-Free Workforce. ground-based systems used to conduct paragraphs (a) and (b) to read as follows:
This proposed rule imposes no new space missions or support activity in
1852.223–74 Drug- and alcohol-free
reporting requirements. space, including, but not limited to, the
workforce.
asabaliauskas on DSK5VPTVN1PROD with RULES

This rule does not duplicate, overlap, crewed space system, space-based
or conflict with any other Federal rules. communication and navigation systems, * * * * *
No alternatives were identified that launch systems, and mission/launch Drug- and Alcohol-Free Workforce
would meet the objectives of the rule. control.
Excluding small business concerns that Mission Critical Positions/Duties (Nov 2015)
may be subject to the rule would not be means positions or duties which, if (a) Definitions.
in the best interest of the small business performed in a faulty, negligent, or Employee in a sensitive position
concerns or the Government, because malicious manner, could jeopardize means a contractor or subcontractor

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Document Created: 2015-12-15 08:49:01
Document Modified: 2015-12-15 08:49:01
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective November 6, 2015.
Contact		Marilyn Chambers, NASA, Office of Procurement, email: [email protected], or 202-358-5154.
FR Citation		80 FR 60552
RIN Number		2700-AE17
CFR Citation		48 CFR 1823 48 CFR 1846 48 CFR 1852