[Federal Register Volume 61, Number 39 (Tuesday, February 27, 1996)]
[Rules and Regulations]
[Pages 7224-7226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4428]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1823 and 1852
RIN 2700-AB68
Drug and Alcohol Testing of Contractor Employees
AGENCY: Office of Procurement, National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
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SUMMARY: This rule implements the Civil Space Employee Testing Act of
1991, which requires NASA contractors to institute and maintain a
program for achieving a drug and alcohol-free workforce. Contractor
programs shall provide for preemployment, reasonable suspicion, random,
post-accident, and periodic recurring (follow-up) 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.
EFFECTIVE DATE: March 28, 1996.
FOR FURTHER INFORMATION CONTACT:
David K. Beck, (202) 358-0482.
SUPPLEMENTARY INFORMATION:
Background
The Civil Space Employees Testing Act of 1991, Public Law 102-195,
sec. 21, 105 Stat. 1616 to 1619, requires NASA to prescribe regulations
that require testing of NASA contractor
[[Page 7225]]
employees conducting safety-sensitive, security, and National security
functions for use, in violation of applicable law or Federal
regulation, of alcohol or a controlled substance. NASA published a
proposed rule on July 13, 1993, 58 FR 37697. Public comments on the
proposed rule have been considered in developing this rule.
Changes to Rule
A definition has been added to 1823.570-2 for the phrase ``use, in
violation of applicable law or Federal regulation, of alcohol.'' The
definition of ``employee in a sensitive position'' has been expanded to
include any applicant who is interviewed for a sensitive position.
In response to public comments, 1823.570-3 has been revised to add
a contract threshold of $5 million, clarify application of the clause,
and revise the exception for ``commercial products'' to cover
``commercial items.'' The exception for contracts performed outside the
U.S. has been removed. However, the clause has been revised to address
testing outside the U.S.
Editorial changes have been made to 1823.570-4 to shorten and, in
response to a public comment, clarify the section.
In response to a public comment, paragraph (b) of the clause at
1852.223-74 has been revised to remove the discussion of NASA
Management Instruction (NMI) 3792.3B, ``NASA Plan for a Drug-Free
Workplace.'' Appendix C of the NMI, sets forth guidelines that NASA
follows in making determinations as to which of its employees are in
sensitive positions. A contractor may follow these NASA guidelines in
making determinations as to which of its employees performing on the
contract are ``employee(s) in a sensitive position.'' However, there is
no need for NASA to include this guidance in the contract.
In response to a public comment, paragraph (b) has been revised to
allow establishment of testing and rehabilitation programs in
cooperation with other contractors or organizations.
To give contractors flexibility in tailoring their programs to test
for the use of controlled substances that pose the greatest threat to
safety, security, or National security, paragraph (b)(3) of the clause
requires testing only for marijuana and cocaine but allows the
contractor to test for other controlled substances.
Paragraph (b)(4) of the clause incorporates testing procedures
established by the Department of Transportation in 49 CFR part 40.
Paragraphs (c) and (d) of the clause are combined and clarified.
In response to public comments, a paragraph addressing labor
agreements has been added. It uses language from the Department of
Energy rule at 10 CFR 707.15 and the NASA rule proposed for NASA
employees (58 FR 36159, July 6, 1993, proposed for 14 CFR 1272.104).
In response to public comments, paragraph (g) has been revised to
state that the clause does not apply to any subcontract for commercial
items.
Starting Date for Drug and Alcohol Testing
NASA requested comments on the amount of time that contractors will
need, following contract award, to begin their drug and alcohol testing
programs in order to meet the requirements of the proposed contract
clause. Estimates included ``12 to 18 months,'' ``24 to 36 months,'' or
longer. Negotiation of labor agreements was cited as requiring
considerable time. Based on these comments, NASA has revised the clause
to address labor agreements. The rule does not otherwise specify the
amount of time that is considered reasonable for implementing the
required testing. As with other elements of contract performance, it is
anticipated that the contractor will make sufficient progress on
implementing this program to ensure contract performance.
Procedural Requirements
Review Under the Regulatory Flexibility Act
The rule was reviewed under the Regulatory Flexibility Act of 1980.
NASA certifies that the rule will not have a significant economic
impact on a substantial number of small entities.
Review Under the Paperwork Reduction Act
Under 5 CFR 1320.5(b)(2)(i), NASA is required to inform potential
persons who are to respond to the collection of information that such
persons who are to respond to the collection of information that such
persons are not required to respond to the collection of information
unless it displays a currently valid OMB control number. Under 5 CFR
1320.5(b)(2)(ii)(C), this paragraph meets that display requirement by
providing the following statement: information collection associated
with this rule has been approved under OMB Control Numbers 2700-0085
and 2700-0089.
List of Subjects in 48 CFR Parts 1823 and 1852
Government procurement.
Deidre A. Lee,
Associate Administrator for Procurement.
Accordingly, 48 CFR parts 1823 and 1852 are amended as follows:
PART 1823--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND
DRUG-FREE WORKPLACE
1. The authority citation for 48 CFR Parts 1823 and 1852 continues
to read as follows:
Authority: 42 U.S.C. 2473(c)(1).
2. Subpart 1823.5 is added to read as follows:
Subpart 1823.5--Drug-Free Workplace
Sec.
1823.570 Drug- and alcohol-free workforce.
1823.570-1 Scope.
1823.570-2 Definitions.
1823.570-3 Contract clause.
1823.570-4 Suspension of payments, termination of contract, and
debarment and suspension actions.
1823.570 Drug- and alcohol-free workforce.
1823.570-1 Scope.
Sections 1823.570 to 1823.570-4 set forth NASA requirements for
mandatory drug and alcohol testing of certain contractor personnel
under section 203, National Aeronautics and Space Act of 1958, as
amended, 42 U.S.C. 2473, 72 Stat. 429; and Civil Space Employee Testing
Act of 1991, Public Law 102-195, sec. 21, 105 Stat. 1616 to 1619.
1823.570-2 Definitions.
As used in this subpart employee and controlled substance are as
defined in FAR 23.503. 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 1823.570-4 and
the clause at 1852.223-74.
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'' pursuant to the clause at 1852.246-70.
The term also includes any applicant
[[Page 7226]]
who is interviewed for a position described in this paragraph.
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.
1823.570-3 Contract Clause.
The contracting officer shall 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,'' and in other
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 (see FAR parts 2 and
12).
1823.570-4 Suspension of payments, termination of contract, and
debarment and suspension actions.
The contracting officer shall comply with the procedures of FAR
23.506 regarding the suspension of contract payments, the termination
of the contract for default, and debarment and suspension of a
contractor relative to failure to comply with the clause at 1852.223-
74. Causes for suspension of contract payments, termination of the
contract for default, and debarment and suspension of the contractor
are the following:
(a) The contractor fails to comply with paragraph (b), (c), or (d)
of the clause at 1852.223-74; or
(b) Such a number of contractor employees in sensitive positions
having been convicted of violations of criminal drug statutes or
substantial evidence of drug or alcohol abuse or misuse occurring in
the workplace, as to indicate that the contractor has failed to make a
good faith effort to provide a drug- and alcohol-free workforce.
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Section 1852.223-74 is added to read as follows:
1852.223-74 Drug- and alcohol-free workforce.
As prescribed in 1823.570-3, insert the following clause:
Drug- and Alcohol-Free Workforce
(March 1996)
(a) Definitions. As used in this clause the terms ``employee,''
``controlled substance,'' ``employee in a sensitive position,'' and
``use, in violation of applicable law or Federal regulation, of
alcohol'' are as defined in 48 CFR 1823.570-2.
(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 preemployment, 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) 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.
(3) The Contractor's program shall test for the use of marijuana
and cocaine. The Contractor's program may test for the use of other
controlled substances.
(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 (59 FR 29908, June 9,
1994) and the procedures in 49 CFR part 40, ``Procedures for
Transportation Workplace Drug Testing Programs,'' in which
references to ``DOT'' shall be read as ``NASA'', and the split
sample method of collection shall be used.
(c) (1) The Contractor's program shall provide, where
appropriate, for the suspension, disqualification, or dismissal of
any employee in a sensitive position in any instance where a test
conducted and confirmed under the Contractor's program indicates
that such individual has used, in violation of applicable law or
Federal regulation, alcohol or a controlled substance.
(2) The Contractor's program shall further prohibit any such
individual from working in a sensitive position on a NASA contract,
unless such individual has completed a program of rehabilitation
described in paragraph (d) of this clause.
(3) The Contractor's program shall further prohibit any such
individual from working in any sensitive position on a NASA contract
if the individual is determined under the Contractor's program to
have used, in violation of applicable law or Federal regulation,
alcohol or a controlled substance and the individual meets any of
the following criteria:
(i) The individual had undertaken or completed a rehabilitation
program described in paragraph (d) of this clause prior to such use;
(ii) Following such determination, the individual refuses to
undertake such a rehabilitation program;
(iii) Following such determination, the individual fails to
complete such a rehabilitation program; or
(iv) The individual used a controlled substance or alcohol while
on duty.
(d) The Contractor shall institute and maintain an appropriate
rehabilitation program which shall, as a minimum, provide for the
identification and opportunity for treatment of employees whose
duties include responsibility for safety-sensitive, security, or
National security functions who are in need of assistance in
resolving problems with the use of alcohol or controlled substances.
(e) The requirements of this clause shall take precedence over
any state or local Government laws, rules, regulations, ordinances,
standards, or orders that are inconsistent with the requirements of
this clause.
(f) For any collective bargaining agreement, the Contractor will
negotiate the terms of its program with employee representatives, as
appropriate, under labor relations laws or negotiated agreements.
Such negotiation, however, cannot change the requirements of this
clause. Employees covered under collective bargaining agreements
will not be subject to the requirements of this clause until those
agreements have been modified, as necessary; provided, however, that
if one year after commencement of negotiation the parties have
failed to reach agreement, an impasse will be determined to have
been reached and the Contractor will unilaterally implement the
requirements of this clause.
(g) The Contractor shall insert a clause containing all the
terms of this clause, including this paragraph (g), in all
subcontracts in which work is performed by an employee in a
sensitive position, except subcontracts for commercial items (see
FAR parts 2 and 12).
(End of clause)
[FR Doc. 96-4428 Filed 2-26-96; 8:45 am]
BILLING CODE 7510-01-M
