NASA Federal Acquisition Regulation Supplement: Drug- and Alcohol-Free Workforce and Mission Critical Systems Personnel Reliability Program (NFS Case 2015-N002), 60552-60555 [2015-25394]
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Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations
C. Congressional Review Act
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B. Supplemental Final Regulatory
Flexibility Analysis
24. As required by the Regulatory
Flexibility Act of 1980 (RFA), the
Commission has prepared the following
Supplemental Final Regulatory
Flexibility Analysis (FRFA) relating to
this Order on Reconsideration. As
discussed in the initial FRFA in this
proceeding, the Commission sought
comment on alternatives for small
entities including: (1) The establishment
of different compliance and reporting
requirements; (2) clarification,
consolidation, or simplification of
compliance or reporting requirements
for small entities; (3) the use of
performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities. As the Commission
stated in the FRFA, ‘‘[w]hile we
acknowledge that small or rural service
providers may have limited resources or
operate in remote areas, 911 is no less
a critical public service in any part of
the nation, and we decline to establish
two tiers of 911 reliability based on
economics or geography.’’ Accordingly,
we intend our 911 reliability
certification requirements—including
the clarifications set forth in this Order
on Reconsideration—to apply to all
Covered 911 Service Providers without
exceptions based on size or location,
and we also decline to create a specific
waiver procedure for entities to seek
exemption from the rules.
25. That said, the Commission’s
certification approach to 911 reliability
continues to ‘‘allow[ ] flexibility for
small or rural providers to comply with
our rules in the manner most
appropriate for their networks, and
certain requirements will, by their
nature, only apply to larger providers.’’
In contrast to more prescriptive
reliability requirements, the option to
certify reasonable alternative measures
in lieu of specified best practices
minimizes regulatory burdens on small
entities by recognizing a variety of
acceptable approaches to providing
reliable 911 service. If anything, the
clarifications provided above offer
additional flexibility to small entities by
making clear that they may certify
reasonable alternative measures in lieu
of circuit audits and tagging depending
on their individual circumstances and
network architecture. Thus, the rules as
clarified in this Order on
Reconsideration continue to take into
account the unique interests of small
entities as required by the RFA.
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26. The Commission will send a copy
of this Order on Reconsideration to
Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
V. Ordering Clauses
27. Accordingly, it is ordered,
pursuant to sections 1, 4(i), 4(j), 4(o),
201(b), 214(d), 218, 251(e)(3), 301,
303(b), 303(g), 303(r), 307, 309(a), 316,
332, 403, 405, 615a–1, and 615c of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i)–(j) & (o),
201(b), 214(d), 218, 251(e)(3), 301,
303(b), 303(g), 303(r), 307, 309(a), 316,
332, 403, 405, 615a–1, and 615c, and
sections 1.108 and 1.429 of the
Commission’s rules, 47 CFR 1.1, 1.429,
that this Order on Reconsideration is
adopted.
28. It is further ordered that Part 12
of the Commission’s rules, 47 CFR part
12, is amended as set forth in the
Appendix, and that such rule
amendments shall be effective 30 days
after publication in the Federal
Register.
29. It is further ordered that the
Motion for Clarification or, in the
Alternative, Petition for Partial
Reconsideration of Intrado, Inc., is
granted to the extent described herein.
30. It is further ordered that the
Commission shall send a copy of this
Order on Reconsideration to Congress
and to the Government Accountability
Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).
31. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Order on Reconsideration,
including the Supplemental Final
Regulatory Flexibility Analysis, to the
Chief Counsel for Advocacy of the Small
Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
List of Subjects in 47 CFR part 12
Resiliency, Redundancy and
Reliability of Communications.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 12 as
follows:
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PART 12—RESILIENCY,
REDUNDANCY, AND RELIABILITY OF
COMMUNICATIONS
1. The authority citation for part 12 is
revised to read as follows:
■
Authority: Sections 1, 4(i), 4(j), 4(o), 5(c),
201(b), 214(d), 218, 219, 251(e)(3), 301,
303(b), 303(g), 303(j), 303(r), 307, 309(a), 316,
332, 403, 405, 615a-1, 615c, 621(b)(3), and
621(d) of the Communications Act of 1934,
as amended, 47 U.S.C. 151, 154(i), 154 (j),
154 (o), 155(c), 201(b), 214(d), 218, 219,
251(e)(3), 301, 303(b), 303(g), 303(j), 303(r),
307, 309(a), 316, 332, 403, 405, 615a-1, 615c,
621(b)(3), and 621(d) unless otherwise noted.
2. Amend § 12.4 by revising
paragraphs (c)(1)(ii) introductory text
and (c)(3)(ii) introductory text to read as
follows:
■
§ 12.4 Reliability of covered 911 service
providers.
*
*
*
*
*
(c) * * *
(1) * * *
(ii) If a Covered 911 Service Provider
does not conform with all of the
elements in paragraph (c)(1)(i) of this
section with respect to the 911 service
provided to one or more PSAPs, it must
certify with respect to each such PSAP:
*
*
*
*
*
(3) * * *
(ii) If a Covered 911 Service Provider
does not conform with all of the
elements in paragraph (c)(3)(i) of this
section, it must certify with respect to
each such 911 Service Area:
*
*
*
*
*
[FR Doc. 2015–25459 Filed 10–6–15; 8:45 am]
BILLING CODE 6712–01–P
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)
National Aeronautics and
Space Administration.
ACTION: Final rule.
AGENCY:
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.
SUMMARY:
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Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations
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:
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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.
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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 Drugand 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
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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
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Workforce. The NFS clause at 1852.223–
74 directed the inclusion of the Drugand 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
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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.
1823.570–2
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.
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
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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.
■ 3. Section 1823.570–2 is revised to
read as follows:
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
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.
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
6. The authority citation for part 1852
continues to read as follows:
■
Authority: 51 U.S.C. 20113(a) and 48 CFR
chapter 1.
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
workforce.
*
*
*
Drug- and alcohol-free
*
*
Drug- and Alcohol-Free Workforce
(Nov 2015)
(a) Definitions.
Employee in a sensitive position
means a contractor or subcontractor
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Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Rules and Regulations
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.’’
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(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 postaccident 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.
*
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1852.246–70
[Removed and Reserved]
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
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 541
[Docket No. NHTSA–2015–0043]
RIN 2127–AL59
Federal Motor Vehicle Theft Prevention
Standard; Final Listing of 2016 Light
Duty Truck Lines Subject to the
Requirements of This Standard and
Exempted Vehicle Lines for Model Year
2016
National Highway Traffic
Safety Administration (NHTSA), U.S.
Department of Transportation.
ACTION: Final rule.
AGENCY:
This final rule announces
NHTSA’s determination that there are
no new model year (MY) 2016 light duty
truck lines subject to the parts-marking
requirements of the Federal motor
vehicle theft prevention standard
because they have been determined by
the agency to be high-theft or because
they have major parts that are
interchangeable with a majority of the
SUMMARY:
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60555
covered major parts of passenger car or
MPV lines. This final rule also identifies
those vehicle lines that have been
granted an exemption from the partsmarking requirements because the
vehicles are equipped with antitheft
devices determined to meet certain
statutory criteria.
DATES: The amendment made by this
final rule is effective October 7, 2015.
FOR FURTHER INFORMATION CONTACT: Ms.
Rosalind Proctor, Consumer Standards
Division, Office of International Policy,
Fuel Economy and Consumer Programs,
NHTSA, West Building, 1200 New
Jersey Avenue SE., (NVS–131, Room
W43–302), Washington, DC 20590. Ms.
Proctor’s telephone number is (202)
366–4807. Her fax number is (202) 493–
0073.
SUPPLEMENTARY INFORMATION: The theft
prevention standard (49 CFR part 541)
applies to (1) all passenger car lines; (2)
all multipurpose passenger vehicle
(MPV) lines with a gross vehicle weight
rating (GVWR) of 6,000 pounds or less;
(3) low-theft light-duty truck (LDT) lines
with a GVWR of 6,000 pounds or less
that have major parts that are
interchangeable with a majority of the
covered major parts of passenger car or
MPV lines; and (4) high-theft LDT lines
with a GVWR of 6,000 pounds or less.
The purpose of the theft prevention
standard is to reduce the incidence of
motor vehicle theft by facilitating the
tracing and recovery of parts from stolen
vehicles. The standard seeks to facilitate
such tracing by requiring that vehicle
identification numbers (VINs), VIN
derivative numbers, or other symbols be
placed on major component vehicle
parts. The theft prevention standard
requires motor vehicle manufacturers to
inscribe or affix VINs onto covered
original equipment major component
parts, and to inscribe or affix a symbol
identifying the manufacturer and a
common symbol identifying the
replacement component parts for those
original equipment parts, on all vehicle
lines subject to the requirements of the
standard.
Section 33104(d) provides that once a
line has become subject to the theft
prevention standard, the line remains
subject to the requirements of the
standard unless it is exempted under
§ 33106. Section 33106 provides that a
manufacturer may petition annually to
have one vehicle line exempted from
the requirements of § 33104, if the line
is equipped with an antitheft device
meeting certain conditions as standard
equipment. The exemption is granted if
NHTSA determines that the antitheft
device is likely to be as effective as
compliance with the theft prevention
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]]>Agencies
[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: 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.
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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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