Drug and Alcohol Testing of Contractor Employees

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]

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