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10 CFR 707 Frequently Asked Questions

NOTE: The Questions on this site were compiled from questions asked during the four DOE complex wide tele-videos, as well as, questions submitted by e-mail and telephone. The answers provided are responses developed to assist contractors in implementing the requirements of 10 CFR 707 these are NOT Official interpretations, only the Office of General Counsel may issue an interpretive ruling.

This posting ends the Departments' consultation with the contractor as required by 707.7(b)(4). Contractors will be notified by their Contracting Officers of the next steps to be taken. This document does not address several questions relating to implementation of the substance abuse program; the Department will provide supplemental guidance regarding implementation later.

10 CFR 707 Workplace Substance Abuse Programs at DOE Sites Subpart A-General Provisions

       707.1 Purpose.
       707.2 Scope.
       707.3 Policy.
       707.4 Definitions.

Subpart B-Procedures

       707.5 Submission, approval, and implementation of a baseline workplace substance abuse program.
       707.6 Employee assistance, education, and training.
       707.7 Random drug testing requirements and identification of Testing Designated Positions.
       707.8 Applicant drug testing.
       707.9 Drug testing as a result of an occurrence.
       707.10 Drug testing for reasonable suspicion of illegal drug use.
       707.11 Drugs for which testing is performed.
       707.12 Specimen collection, handling and laboratory analysis for drug testing.
       707.13 Medical review of results of tests for illegal drug use.
       707.14 Action pursuant to a determination of illegal drug use.
       707.15 Collective bargaining.
       707.16 Records.
       707.17 Permissible actions in the event of contractor noncompliance.

Procurement/Contract Issues:
Security Issues:
Miscellaneous Issues: 

 
707.1 Purpose: 
707.2 Scope:
  • Question: I heard that the threshold for this program is $25,000. I have multiple small contracts, none exceeding $25,000 but greater than $25,000 in total. Will my business be covered by this program?
    Answer: No, 10 CFR 707.2(a)(2) states that the rule applies to management and operating contracts and contracts or subcontracts with a value of $25,000 or more, not the combined total of all contracts or subcontracts.
  • Question: Will the policy only apply to DOE held clearances? Does it apply to someone holding a clearance from another Federal Agency working under a DOE contract?
    Answer: No, the policy will not only apply to DOE held clearances. Yes, the policy applies to all clearances including a clearance from another Federal Agency working under a DOE contract.
     
  • Question: Do we have to extend this down to any subcontractors that we have greater than 25k per year?
    Answer: Yes, the rule applies to specified subcontractor with a contract with a value of $25,000 or more. That is, the subcontracts must be at sites owned or controlled by DOE and must be determined by DOE to involve "(i) accesses to or handling of classified information or special nuclear materials; (ii) High risk of danger to life, the environment, public health and safety, or national security; or (iii) Transportation of hazardous materials to or from a DOE site." See § 707.2 (a).
707.3 Policy.
707.4 Definitions.
  • Question: The definition of "TDP Pool" needs to be further clarified. Is the TDP pool created by the total number of clearances maintained by a cognizant personnel security office? Or is it created by defining the number of cleared employees in each contractor/subcontractor company? Or is it created by the number of cleared employees assigned to a specific contract? Or is it defined some other way?
    Answer: On September 14, 2007, the Secretary of Energy determined that all contractor positions that currently have security clearances ("Q" or "L") and the employees in positions that currently have security clearances have the potential to significantly affect the environment, public health and safety, or national security. Therefore, all such positions will be considered to be in the testing designated positions which mean they are subject to applicant, random, and for cause drug testing. Therefore, the "TDP pool" is the total number of employees in positions specified in section 707.7(b) and employees with security clearances.
 Subpart B-Procedures
  • Question: Who does the contractor submit the contractor drug testing policy to for review and who approves it?
    Answer: Contractors must submit their Workplace Substance Abuse Program to the appropriate Heads of DOE Field Elements for review and approval.
     
  • Question: Who will approve the Contractors' Substance Abuse Programs?
    Answer: The appropriate Head of DOE Field Element will approve the contractor's drug testing program.
     
  • Question: Is this policy effective immediately with no implementation time?
    Answer: No, the rule allows for an implementation period. See § 707.5(g).
     
  • Question: When are the Contractors' Substance Abuse Programs due? What is the timeframe for compliance?
    Answer: There are several factors involved in determining the date for submission of the Substance Abuse Program and its full implementation. These include the type of contract, the location of the contractor, and whether the contractor has an existing substance abuse program in place. For more information see the 10 CFR 707 websites Drug Testing Policy Implementation page. For more information see 10 CFR § 707.5(g) and the 10 CFR Part 707 Drug Testing Policy Implementation page located at: http://www.hss.doe.gov/HealthSafety/WSHP/rule851/rule707.html.
     
  • Question: Will workplace substance abuse programs be required from subcontractors?
    Answer: Yes, 10 CFR § 707.2(a)(2) states that the rule applies to management and operating contracts and other contracts or subcontracts on a DOE site with a value of $25,000 or more which have been determined by DOE to involve: "(i) accesses to or handling of classified information or special nuclear materials; (ii) High risk of danger to life, the environment, public health and safety, or national security; or (iii) Transportation of hazardous materials to or from a DOE site." See § 707.2 (a). The Department encourages prime contractors to include lower tier subcontractors under the prime contractor's Workplace Substance Abuse Program. According to 10 CFR § 707.5(d), "[e]ach subcontractor subject to this part shall submit its plan to the appropriate prime contractor for approval; the contractor shall be responsible for periodically monitoring the implementation of the subcontractor's program for effectiveness and compliance with this part." All workers in testing designated positions (see 10 CFR § 707.7(b)) must be covered by an approved written substance abuse program.
     
  • Question: We already have a program for employee drug testing. Will we still have to get DOE approval of our program?
    Answer: No, if an approved drug testing program is already in place the contractor needs only add the employees with "L" or "Q" clearances not already in a drug testing program into the existing testing designated positions pool for random selection.
     
  • Question: Is it permissible for UT-Battelle to incorporate subcontractor personnel into the UT-Battelle drug-testing program and perform the testing, or must each subcontractor be required to develop its own drug-testing program?
    Answer: Yes, while there are some aspects of the drug testing program that the subcontractor will be responsible for (see 10 CFR § 707.5(d)), there is no prohibition against a subcontractor being included in the prime contractor's program. In fact, the Department encourages this type of cooperative arrangement.
     
  • Question: Will a 60-day notice be required to employees going into testing designated positions?
    Answer: Yes, 10 CFR 707.5(b)(4)(i) requires that individuals subject to drug testing be notified at least 60 days in advance of initiating testing.
     
  • Question: 60 Day notification - Regarding new employees with pending clearances. If I notify the entire workforce does the 60 day clock start for the new employees with pending clearances or does the 60 days start from the day they receive their clearance.
    Answer: The 60 day notification starts from the day existing employees receive their security clearances. All employees in a TDP (this includes all "L" and "Q" cleared employees of contractors or subcontractors that are subject to Part 707) must be enrolled in a program when they start employment. See § 707.7. All individuals being considered for a TDP must have a drug test prior to being selected for employment or assignment to the position, 10 CFR § 707.8.
     
  • Question: With several DOE contracts at different locations is it expected that one Drug Testing Plan will cover all the contracts or will Drug Testing Plans have to be developed for each contract?
    Answer: The plans are required to be developed for each contract that is subject to the rule but, there can be a lot of duplication in the development of the plans.
     
  • Question: If one plan covers all contracts with DOE, which office within DOE will oversee the contracts drug testing program?
    Answer: See answer to question 11. The appropriate Heads of Field Elements will oversee their contractors' and subcontractors' programs.
     
  • Question: If there is an existing drug testing program within the DOE office a contractor is contracted with, but the contract did not call for drug testing, can the contractor be included into the office's program, or does the contractor still need to develop and implement there own separate program?
    Answer: Each contractor or subcontractor that is subject to the rule must develop a written program that is consistent with the requirements of the rule. No contract provisions are required to implement Part 707. It applies by operation of law.
     
  • Question: If a company is a subcontractor to a prime contractor, is the prime contractor responsible for creating and implementing a plan for both contracting companies? Or, does the prime and sub contractor need to have an individual plan? If separate plans are required are the costs for start up and implementation to flow through the prime to DOE?
    Answer: 10 CFR 707.5(d) states that subcontractors determined to fall into the scope of this rule are required to agree and comply with the rule and submit its plan to the appropriate prime contractor for approval. The prime contractor is responsible for developing and implementing its own Workplace Substance Abuse Program and monitoring their subcontractors' implementation of the subcontractor's program.
     
  • Question: We are concerned that some of our subcontractors may not be able to implement these drug testing requirements without our assistance, and that their failure to fully implement these requirements could have an immediate and detrimental impact on us, as the prime contractor, in our ability to accomplish our work. We are considering various alternatives to meet these requirements, but what seems the most viable is for us to perform the selection, collection and testing for many of our subcontractors. This will ensure that the testing is actually performed and done so at the correct rate. Is this approach permissible under Part 707?
    Answer: Yes, this approach is acceptable under 10 Part 707.
     
  • Question: Can subcontractor employees be added to the prime's testing pool?
    Answer: Yes, subcontractor employees may be added to the prime contractor's testing pool.
     
  • Question: If we have 3 employees, can we put those employees in another pool as long as we are meeting the minimum requirement?
    Answer: Yes.
     
  • Question: I'm a DOE contract psychologist working in Oakland, California offsite. I'm a small company of just myself. Will there be some simplified policy that would qualify contract psychologist?
    Answer: Since you are located offsite, Part 707 does not apply to you. See § 707.2(a). It would be appropriate to have you included in the sponsoring contractor's pool. You should check with your contracting officer for possible options.
     
  • Question: Who does the contractor go to onsite for guidance and support?
    Answer: You should contact your contracting officer to determine who is responsible for overseeing drug testing on your site.
     
  • Question: What is DOE policy for the many small, non-prime subcontractors doing business on a DOE Site - companies that may only have a couple of clearances? Teleconference implied that prime contractors might be asked to assume that responsibility? If so, what are the financial and/or liability issues should primes be expected to administer drug testing for companies to whom it may have little or no affiliation?
    Answer: Prime contractors that are subject to Part 707 must review and approve their subcontractors' programs and are responsible for periodically monitoring the implementation of the subcontractors' programs for effectiveness and compliance with the regulation. See § 707.5(d). DOE and its prime contractors generally agree it is desirable that the subcontractors be placed in the prime contractor's pool of testing designated positions. The prime contractor would then be responsible for randomly selecting individuals for testing. The actual testing would be performed by an independent testing laboratory with the results shared with employer. DOE's prime contractor should not be involved in the testing process or in matters involving employer/employee relationships or the employers' duties.
     
  • Question: Part 707 states that my subcontractor shall submit their program the prime contractor for approval. What is the timeline or sequence of this? Should the primes program be approved by DOE before approving the subcontractor's, or does it matter?
    Answer: The sequence does not matter so long as both the contractors and their subcontractors are compliant with the regulation. See 10 CFR § 707.5(d).
     
  • Question: Will the program provide specific name/address, etc of where certified results are to be sent for review by the MRO, the timing of such distribution, the acceptable means of distribution (written report from testing provider, internet/password based from testing provider website, etc.
    Answer: Programs must be consistent with the Department of Health and Human Services' Mandatory Guidelines for Federal Workplace Drug Testing Programs and subsequent amendments to those Guidelines as well as other requirements in Part 707. Practical aspects of implementing the requirements should be arranged with the appropriate Heads of Field Elements or Program Offices.
     
  • Question: If per 707 an employer does not need to have a written program then would the requirement be to only conduct the required tests as per the new directive? (Random/new hire etc).
    Answer: No. Employers who are not within the scope of Part 707 (see § 707.2) are not required to have workplace substance abuse programs or have their employees tested for illegal drugs. However, DOE expects to eventually modify contracts that are not currently within the scope of Part 707 to require drug testing of employees with "L" and "Q" clearances.
     
  • Question: We have a large subcontractor like a university system and it utilizes its own program; how will that work and how do we audit that?
    Answer: Large contractors should already have a substance abuse program in place as 10 CFR Part 707 was promulgated in 1992. The new requirements only increase the existing pool of TDPs to include all "L" and "Q" cleared employees.
     
  • Question: M&O contractor is administering the HRP program requirements for the small contractors with 7-8 folks on site. Could we anticipate that the prime M&O contractor could continue to administer the workplace substance abuse program for our participation?
    Answer: DOE believes this will be the most common practice.
     
  • Question: Headquarters (HQ) program offices that are implementing this, will the HQ personnel security office administer the drug testing or is each program office expected to set up their own drug testing?
    Answer: Headquarters Program Offices will administer their own program for contractor personnel located at the Program Offices' locations.
     
  • Question: 707 requires prime contractors to review subcontractors plan, it is not very clear what kind of criteria we are to use. Please provide guidance with respect to that.
    Answer: The contractors should review their subcontractors' programs for both effectiveness and compliance with the requirements of the regulation. Subcontractors must comply with the same requirements as the contractors except that the program approvals and monitoring are performed by the contractor rather than DOE.
     
  • Question: We have contractors that employ officers who have clearances but are never onsite and have no access to classified matter, will they still be required to have security clearances. Will those individuals be subject to random and applicant testing?
    Answer: If the underlying contract is within the scope of Part 707, as provided in § 707.2, all personnel with "L" and "Q" security clearances will be subject to applicant, random and "for cause" testing. However, based on the facts that the employees described in your question are never on site and never have access to classified information, perhaps you should inquire from appropriate DOE security personnel as to whether the clearances are necessary.
     
  • Question: 707.5(d) has a requirement that contractors submit subcontracts they believe to be within the scope of 707 to DOE for a determination as to whether or not they fall within the scope of this part. We would like some guidance on how that is to be accomplished, especially with the new Q & L clearances. Is this something that DOE will provide feedback on? Is there a time period in which we need to submit this? Do we need to wait for a response from DOE before we consider it a requirement for our subcontractors?
    Answer: Contractors should submit the names of subcontractors they believe to be within the scope of Part 707 as soon as practicable. Yes, DOE must first make a determination as to the applicability of Part 707 to a specific subcontractor before the subcontractor is required to agree to comply with the regulation and submit its plan to the prime contractor for approval.
     
  • Question: Whether or not all of the requirements of 707 will have to be met by our subcontractors, and this is really focused on the requirement that contractors have a written program if there will be any flexibility specifically for small subcontractors with limited resources when it comes to all of the elements of the written program?
    Answer: 10 CFR 707 does not grant specific relief for small subcontractors. However, the contractors may assist their subcontractors in order to assure their compliance.
     
  • Question: If an office has delivery orders under GSA contracts, should DOE request a copy of the plan from the contractor with each delivery order over $25,000 for services? Or, are Workplace Substance Abuse plans required?
    Answer: GSA contracts are not within the scope of Part 707. 
     
  707.5 Submission, approval, and implementation of a baseline workplace substance abuse program.
  • Question: Who does the contractor submit the contractor drug testing policy to for review and who approves it?
    Answer:
    Contractors must submit their Workplace Substance Abuse Program to the Head of DOE Field Element for approval.
     
  • Question: Who will approve the Contractors' Substance Abuse Programs?
    Answer:
    DOE must approve the contractor's drug testing program.
     
  • Question: Is this policy effective immediately with no implementation time?
    Answer:
    No, the rule allows for an implementation period.
     
  • Question: When are the Contractors' Substance Abuse Programs due? What is the timeframe for compliance?
    Answer:
    There are several factors involved in determining the date for submission of the Substance Abuse Program and its full implementation. These include the type of contract, the location of the contractor, and weather the contractor has an existing substance abuse program in place. For more information see the 10 CFR 707 websites Drug Testing Policy Implementation page.
     
  • Question: Will workplace substance abuse programs be required from subcontractors?
    Answer:
    Yes, 10 CFR 707.2(A)(2) states that the rule applies to all contracts or subcontracts with a value of $25, 000 or more. The Department encourages prime contractors to include lower tier subcontractors under the prime contractors' Workplace Substance Abuse Program. All workers must be covered by an approved written substance abuse program.
     
  • Question: We already have a program for employee drug testing. Will we still have to get DOE approval of our program?
    Answer:
    No, if an approved drug testing program is already in place the contractor needs only add the employees with L or Q clearances not already in a drug testing program into the existing random selection pool.
     
  • Question: Is it permissible for UT-Battelle to incorporate subcontractor personnel into the UT-Battelle drug-testing program and perform the testing, or must each subcontractor be required to develop its own drug-testing program?
    Answer:
    Yes, While there are some aspects of the drug testing program that the subcontractor will be responsible for there is no prohibition on a subcontractor being in the primes program, in fact the Department encourages this type of cooperative arrangement.
     
  • Question: Will a 60-day notice be required to employees going into testing designated positions?
    Answer:
    Yes, 10 CFR 707. 5 B.4.a. requires that individuals subject to drug testing be notified at least 60 days in advance of initial testing.
     
  • Question: 60 Day notification - Regarding new employees with pending clearances. If I notify the entire workforce does the 60 day clock start for the new employees with pending clearances or does the 60 days start from the day they receive their clearance.
    Answer:
    No, the 60 days notification will start from the day the employees are entered into the TDP sampling pool; this usually will be when the new employees receive a clearance.
     
  • Question: If there is an existing drug testing program within the DOE office a contractor is contracted with, but the contract did not call for drug testing, can the contractor be included into the office's program, or does the contractor still need to develop and implement their own separate program?
    Answer:
    This will depend on the policy of the office that the contractor is working for.
     
  • Question: If a company is a subcontractor to a prime contractor, is the prime contractor responsible for creating and implementing a plan for both contracting companies? Or, does the prime and sub contractor need to have an individual plan? If separate plans are required are the costs for start up and implementation to flow through the prime to DOE?
    Answer:
    10 CFR 707.5 D. states subcontractors determined to fall into the scope of this rule subpart shall be required to comply with the rule and submit its plan to the appropriate prime contractor for approval. The prime contractor is responsible for developing and implementing their own Workplace Substance Abuse Program, however, the prime may include a subcontractor under their 'Workplace Substance Abuse Program. In either case all workers must be covered by an approved written substance abuse program.
     
  • Question: We are concerned that some of our subcontractors may not be able to implement these drug testing requirements without our assistance, and that their failure to fully implement these requirements could have an immediate and detrimental impact on us, as the prime contractor, in our ability to accomplish our work. We are considering various alternatives to meet these requirements, but what seems the most viable is for us to perform the selection, collection and testing for many of our subcontractors. This will ensure that the testing is actually performed and done so at the correct rate. Is this approach permissible under Part 707?
    Answer:
    Yes this approach is acceptable under 10 CFR 707.
     
  • Question: Can subcontractor employees be added to the prime's testing pool?
    Answer:
    Yes, subcontractor employees may be added to the prime contractor's testing pool.
     
  • Question: If we have 3 employees, can we put those employees in another pool as long as we are meeting the minimum requirement?
    Answer:
    Yes.
     
  • Question: I'm a DOE contract psychologist working in Oakland, California offsite. I'm a small company of just myself. Will there be some simplified policy that would qualify contract psychologist?
    Answer:
    Since you are located off site, you will not be covered until completion of the rulemaking to amend the security clause (48 CFR 952.204-2). It would seem appropriate to have you included in the sponsoring contractor's pool. You should check with your contracting officer for possible options.
     
  • Question: Who does the contractor go to onsite for guidance and support?
    Answer:
    You should contact your contracting officer to determine who is responsible for drug testing on your site.
     
  • Question: What is DOE policy for the many small, non-prime subcontractors doing business on a DOE Site - companies that may only have a couple of clearances? Teleconference implied that prime contractors might be asked to assume that responsibility? If so, what are the financial and/or liability issues should primes be expected to administer drug testing for companies to whom it may have little or no affiliation?
    Answer:
    It appears to be the desire of DOE and its prime contractors that the subcontractors be placed in the prime contractor's pool of testing designated positions. The prime contractor would then be responsible for randomly selecting individuals for testing. The actual testing would be performed by an independent testing laboratory with the results shared with employer. DOE's prime contractor should not be involved in that process or in any employer/employee relation or duties.
     
  • Question: Part 707 states that my subcontractor shall submit their program the prime contractor for approval. What is the timeline or sequence of this? Should the primes program be approved by DOE before approving the subcontractor's, or does it matter?
    Answer:
    The prime's program must be approved by DOE as well as the sub's, however if the prime includes the subs program in their overall program one DOE approval for both the prime and sub will suffice.
     
  • Question: Will the program provide specific name/address, etc of where certified results are to be sent for review by the MRO, the timing of such distribution, the acceptable means of distribution (written report from testing provider, internet/password based from testing provider website, etc.
    Answer:
    The program must include the components listed in 10 CFR 707.
  • Question: If per 707 an employer does not need to have a written program then would the requirement be to only conduct the required tests as per the new directive? (Random/new hire etc)
    Answer:
    If an employer has employees that would be covered in 10 CFR 707 then they must have an approved written program.
  • Question: We have a large subcontractor like a university system and they utilize their own program, how will that work and how do we audit that?
    Answer:
    Large contractors should already have a substance abuse program in place as 10 CFR 707 was promulgated in 1992. The new requirements only increase the existing pool of TDP's to include all L&Q cleared employees.
     
  • Questions: M&O contractor is administering the HRP program requirements for the small contractors with 7-8 folks on site. Could we anticipate that the prime M&O contractor could continue to administer the workplace substance abuse program for our participation?
    Answer:
    DOE believes this will be the most common practice.
     
  • Question: HQ program offices that are implementing this, will the HQ personnel security office administer the drug testing or each program office expected to set up their own drug testing?
    Answer:
    Headquarters will administer its own program for contractor personnel at its location and field locations would administer theirs. In the case of subcontractors, the test results and possible adjudication would be between the subcontractor and its employees as discussed above.
     
  • Question: 707 requires prime contractors to review subcontractors plan, it is not very clear what kind of criteria we are to use. Please provide guidance with respect to that.
    Answer:
    The contractors workplace substance abuse program must meet the requirements set forth in 10 CFR 707.5 A
     
  • Question: What sort of documentation will be required from subcontractors to certify that they have met the drug testing requirements at least for individual subcontractor employees to show that they have submitted and taken the drug screen and they have a negative drug screen?
    Answer:
    There are no specific documentation requirements in 10 CFR 707 for showing that subcontractors have met the drug testing requirements.
  • Question: We have contractors who employ officers who have clearances but are never onsite and have no access to classified matter, will they still be required to have security clearances. Will those individuals be subject to random and applicant testing?
    Answer:
    Yes, all personnel with security clearances will be subject to applicant, random and "for cause" testing.
     
  • Question: Whether or not all of the requirements of 707 will have to be met by our subcontractors, and this is really focused on the requirement that contractors have a written program if there will be any flexibility specifically for small subcontractors with limited resources when it comes to all of the elements of the written program?
    Answer:
    10 CFR 707 does not grant specific relief for small subcontractors.
     
  • Question: Is there a conflict between the US Department of Transportation (DOT) regulations in 49 CFR 40.321 restricting the release of confidential positive substance abuse testing results of Commercial Licensed Drivers (CLD), and the US Department of Energy (DOE) requirements of 10 CFR 707.5 which requires contractors to report positive results of drivers employed by DOE contractors/subcontractors, carrying commercial driver license with L or Q security access (tested under the DOT drug testing program) to DOE security officials?
    Answer:
    The DOT regulations state:

    49 CFR § 40.321 What is the general confidentiality rule for drug and alcohol test information?

    "Except as otherwise provided in this subpart, as a service agent or employer participating in the DOT drug or alcohol testing process, you are prohibited from releasing individual test results or medical information about an employee to third parties without the employee's specific written consent."

    While this would appear to preclude the release of test results to DOE security officials as required by 10 CFR 707.5 (b)(6), the DOT regulations go on to say:

    49 CFR § 40.331 To what additional parties must employers and service agents release information?

    "As an employer or service agent you must release information under the following circumstances:
    …(e) If requested by a Federal, state or local safety agency with regulatory authority over you or the employee, you must provide drug and alcohol test records concerning the employee."

    The purpose of the Workplace Substance Abuse Programs at DOE Sites is:

    10 CFR § 707.1 Purpose.
    "The Department of Energy (DOE) promulgates this part in order to protect the environment, maintain public health and safety, and safeguard the national security. This part establishes policies, criteria, and procedures for developing and implementing programs that help to maintain a workplace free from the use of illegal drugs. It applies to DOE contractors and subcontractors performing work at sites owned or controlled by DOE and operated under the authority of the Atomic Energy Act of 1954, as amended, and to individuals with unescorted access to the control areas of certain DOE reactors. The procedures include detection of the use of illegal drugs by current or prospective contractor employees in testing designated positions."

    The Atomic Energy Act of 1954, as amended, gives DOE the statutory authority to prescribe safety requirements for its facilities and operations. As stated in 10 CFR 707.1 DOE is clearly a Federal safety agency, pursuant to 49 CFR 40.331, with authority over contractor/subcontractor employees with L or Q security access while performing work on DOE owned or controlled sites. Therefore, 49 CFR 40.331(e) requires contractors/subcontractors to provide drug and alcohol test records concerning their employees to DOE officials which is in agreement with 10 CFR 707.5, and thus there is no conflict between to two regulations.

 707.6 Employee assistance, education, and training.
  • Question: 707.6 has requirements for training and education and very specific requirements for classes that must be offered that will could to create a burden for many of our sub contractors?
    Answer:
    10 CFR 707 does not grant specific relief for small subcontractors. However, prime contractors may assist their subcontractors in complying with the requirements of Part 707.
 707.7 Random drug testing requirements and identification of Testing Designated Positions.
  • Question: Is each subcontractor expected to develop their own separate pool to track at that 30% rate? Or, one separate pool for all of our subcontractors?
    Answer: Subcontractors may develop their own pool of TDPs and test a sampling rate of 30% annually. However, subcontractors at a site may combine their pools and test a sampling rate of 30%. Both methods are acceptable.
  • Question: Does the amendment to 10 CFR 707.7 require random drug testing at a rate of 100% for all individuals in testing designated positions?
    Answer: No, the intent of the amendment to 10 CFR 707 was to decrease the random drug testing rate from 50 to 30 % for individuals in testing designated positions (TDPs) with security clearances, and to make a technical change pertaining to collection of specimen.

    With this change, a paragraph in the original rule was deleted and the paragraphs were renumbered. Renumbering the paragraphs inadvertently resulted in an error to the required testing rate for TDPs. It was intended for section 707.7(a)(2) to read as follows:2. Programs developed under this part for positions identified in paragraph (b)(2) of this section shall provide for random tests at a rate equal to 30 percent of the total number of employees in testing designated positions for each 12 month period. Employee in the positions identified in paragraph (b)(1) and (c) of this section will be subject to random testing at a rate equal to 100 percent of the total number of employees identified, and those identified in paragraph (b)(1) of this section may be subject to additional drug tests.

    Random drug testing at a rate of 100% for each 12 month period is required only for individuals in the Human Reliability Program, as specified in 10 CFR 712.

  • Question: What is the complete definition of a TDP?
    Answer:
    Section 707.4, Definitions, defines a "Testing Designated Position" as a "position whose incumbents are subject to drug testing under [Part 707]." Testing designated positions that are subject to applicant, random and for-cause drug testing are described in section 707.7(b). These positions also meet the definition of "sensitive positions" in Executive Order 12564. On September 14, 2007, the Secretary of Energy determined that all contractor positions that currently have security clearances ("Q" or "L") and the employees in positions that currently have security clearances have the potential to significantly affect the environment, public health and safety, or national security. Therefore, pursuant to § 707.7(b)(3), all such positions will be testing designated positions, which means they are subject to applicant, random, and for-cause drug testing.
     
  • Question: As a prime contractor employee with a security clearance, we're in TDP's. Fine, but if I bring on site, a subcontractor who may have a security clearance, but is not performing "classified" work during the performance of his/her subcontract, are they/will they be considered to be in a TDP based on the existence of the clearance? (and what's the difference if performance of "classified" work is performed on or off site-for example I subcontract with an individual who has a clearance who will be performing "classified" work at a DoD facility-does he undergo drug testing under 707?
    Answer:
    Part 707 applies to contractors and subcontractors who have contracts with DOE at DOE sites. The employees in testing designated positions, as described in § 707.7(b), including those with "L" and "Q" clearances, are subject to drug testing under Part 707, regardless of whether their work is performed on a DOE site. In addition, at a future date, the contracts of off-site contractors will be modified to require drug testing of employees with "L" and "Q" clearances. If the employees have security clearances, it is assumed that they have access or potential access to classified information and, therefore, must be in the testing pool.
     
  • Question: Are contractors with Building Access Only badges required to be drug tested? Or are the Testing Designated Positions those that require "Q" or "L" security clearances?
    Answer:
    Contractors with "Building Access Only" badges are not required to be drug tested unless they otherwise meet one of the description for a TDP provided in 10 CFR 707.7, such as those provided in § 707.7(b)(1) and (2). Individuals that meet the TDP requirements of § 707.7(b)(1) and (2) should already be covered in an existing substance abuse program as this rule was promulgated in 1992. Testing designated positions include individuals with "Q" and "L" security clearances which must be included in the drug testing program in addition to the positions described in § 707.7(b)(1) and (2).
     
  • Question: Most DOE sites are comprised of multiple contractors both at the prime and service contract levels. Currently, these contractors have received Contracting Officer direction to revise their Workplace Substance Abuse Programs to require drug testing of all contractor employees with security clearances on an applicant, random, or "for cause" basis. The amendment to 10 CFR 707.5, effective January 23, 2008 indicates that random tests at a rate equal to 30% of the total number of employees in testing designated positions for each 12 month period. Is that 30% of each contractor's cleared employee base or is that 30% of the cleared employee's that reside in a given facility's (e.g., Idaho National Laboratory) clearance database?
    Answer: It is testing at a 30 % rate of the total number of employees in the TDP pool. Please note that the TDP pool requiring a 30% testing rate may include positions described in § 707.7(b)(2) as well as the "L" and "Q" cleared positions that are covered by § 707.7(b)(3).
     
  • Question: The revised and formally issued 10CFR 707 does not clearly identify that the "L" clearance requirement is in the final rule. The text discusses it but the formal rule does not.
    Answer:
    Section 707.7(b)(4) provides DOE with the authority to determine, after consultation with the contactor, other positions that have the potential to significantly affect the environment, public health and safety, or national security. On September 14, 2007, the Secretary of Energy determined that all contractor positions that currently have security clearances ("Q" or "L") and the employees in positions that currently have security clearances have the potential to significantly affect the environment, public health and safety, or national security. Therefore, all such positions will be considered to be in the testing designated positions which mean they are subject to applicant, random, and for cause drug testing. Therefore, the language in this section of the final rule did not need to be amended.
     
  • Question: Our contract is not for a single DOE site operation and we provide inspectors on a part-time employee basis that live in various parts of the U.S. They are only used when needed to support an inspection. What are the expectations for the potential frequency of drug testing? Are all cleared employees subject to testing at the same rate regardless of how often they are used or may they be placed in a separate testing pool that only gets tested when they are working at a DOE site?
    Answer:
    Each cleared person must be included in the TDP testing pool and is subject to the random 30% annual sampling. There is no specified frequency of testing for any individual, unless they are part of the 100% testing pool.
     
  • Question: If I am a vendor with multiple contracts within DOE do I write one policy for all your contracts or individual policies for each contract? Do the numbers that have to be maintained 30% or 50% apply to the whole company or does it apply to the individual contracts?
    Answer:
    One program can include all TDP's working for the contractor and this TDP pool will be sampled at a rate of 30% or 100% annually depending on the type of position (see 10 CFT 707.7).
     
  • Question: Will we be required to submit to DOE annually the results of the 30% testing of our population?
    Answer:
    No, the contractor is not obligated to report to DOE who is being randomly tested.
  • Question: At this time are only clear personnel are included?
    Answer:
    No. Title 10 CFR § 707.7(b) describes TDPs. All "L" and "Q" cleared employees are among the TDPs pursuant to § 707.7(b)(3).
     
  • Question: Is the contractor obligated to report to DOE the names of applicants who have a positive test who do not then proceed with the L and Q applications?
    Answer:
    Section 707.5(b)(6) requires "[i]mmediate notification to DOE security officials whenever the circumstances in connection with procedures under [Part 707] raise a security concern as provided in DOE Orders, rules and regulations." Section 707.14(b)(1) requires that the contractor immediately notify DOE security officials when an employee in a TDP who holds or is an applicant for access authorization as been tested and determined to have used an illegal drug. Section 707.16(a) requires that confirmed positive test results be provided to DOE officials with a need to know.
     
  • Question: If we already have L and Q employees and we already have an established a drug test program, will my employees that are already cleared have to go have a test?
    Answer:
    No, 10 CFR § 707.7(d) exempts positions subject to these requirements if the position is already in another comparable Federal drug testing program, as determined by DOE (for example, if they are in an HRP program).
     
  • Question: Will existing clearance holders be "grandfathered" or will all incumbents need to be tested at program start-up?
    Answer:
    Existing clearance holders must be added to the drug testing program which requires all individuals in testing designated positions to test at a 30 percent rate annually. The only baseline testing required is for new positions.

    See § 707.8.

  • Question: There's a large number of L & Q people that wouldn't fall into that TDP category (of people that deal with worker health, safety, environment or national security), has that been considered?
    Answer:
    Yes.
     
  • Question: Modifying the testing rate other than the HRP rates which will remain at 100%. All other rates under 707 go to 30% versus the 50%? We would like to know if that is correct.
    Answer:
    Yes.
     
  • Question: Long service incumbent employees who are not currently in the program but would be subject to the program. Do they need to have a test before they continue to function in the job that they have been performing in some cases for 20 years? Our view is they do not but should be put into the pool as quickly as they can get into it.
    Answer:
    No, they do not need to have a drug test to perform their duties. However, employees must be notified and placed in the pool for testing and may be tested if they are selected during the random selection process.
     
  • Question: 10 CFR 707.7 (b)(4) states when identifying TDPs, "Other positions determined by the DOE, after consultation with the contractor, to have the potential to significantly affect the environment, public health and safety, or national security". Is this video-conference hosted by DOE Headquarters on January 22, 2008 proposed to satisfy the 707 requirement of "the DOE consultation with the contractor" for a TDP determined by DOE?
    Answer:
    Yes.
  • Question: Regardless of position, now Q & L will be called a TDP position, those that we put in prior under a TDP for safety is there going to be a new acronym that we can identify them within that pool?
    Answer:
    No.
     
  • Question: Does the 707.7 (b)(4) consultation process allow the contractor to obtain approval from DOE to exempt certain positions from the L and Q TDP if upon evaluating the position it is determined there is no potential to significantly affect the environment, public health and safety, or national security (For example, Q cleared janitors)?
    Answer:
    No.
     
  • Question: How will the number of random tests be determined?
    Answer:
    Any statistical method for random sampling may be used to determine the number of employees to be tested annually at a 30% rate.
     
  • Question: Will we pull a total count on January 1, and base the total tests (30%) off the population on that date?
    Answer:
    No.
     
  • Question: Will we be held to a higher (or lower) number if the clearance numbers significantly change during the year?
    Answer: The sampling rate is 30% of the total number of employees in TDPs.
     
  • Question: Will we be able to count new hire tests (because they will be in the TDP after they are granted)?
    Answer: If the new hire is in a TDP, the new hire would become part of the testing pool.
     
  • Question: Will duplicate checks count, or will we have to test DIFFERENT people to make the 30% (even if this means that sites will have more than 30% of the number required)?
    Answer: TDPs are subject to a random sampling rate of 30% annually. This does not mean that 30% f the total population. Title 10 CFR §707.7(d) exempts individuals from testing if it is within the scope of another comparable Federal drug testing program.
 707.8 Applicant drug testing.
  • Question: Regarding the applicant section of testing. As we understand it, before an offer is extended to a new hire in a TDP, they must pass a drug test. We already have our program setup and are using it for random and for-cause testing. Does this mean that as we are hiring someone, we would add them to our database and pull their name "for-cause" and note in the explanation section that this test is for an applicant? Or do we simply send the applicant to our local drug testing office as we've been doing for new hires and file their results electronically via email? We are trying to determine if we continue on with new hire testing as we have been with the one exception of not extending the offer until they've passed a drug test or if applicants must be a part of our database.
    Answer:
    Continue on with new hire testing as you have been with the exception of not extending the offer unless he/she passes a drug test.
     
  • Question: In regard to the applicant testing and initial testing, if we already have an approved program in place, will you require for everyone that already has a clearance to go through an initial test prior to them being put in a random test hold?
    Answer:
    No.
  • Question: If we have 100 people applying for a job and make 1 job offer we only have to test the person we extend the offer to not just all applicants, right?
    Answer:
    Yes, you only have to test the individual you offer the job to.
  • Question: People applying for Q and L clearances will have to go out and be tested. We have new employees that have applied for the Q but have not received their Q yet; will they have to be tested?
    Answer:
    No. The applicant drug testing requirements apply to applicants for testing designated positions prior to final selection for employment or assignment. However, if the employees are granted an "L" or "Q" clearance, they must be included in the TDP pool for random testing at the 30% rate and may be subject to for-cause drug testing.
     
  • Question: I need to clarify 10 CFR 707.8 according to that section any applicant for final selection into the designated position they will have to have a drug test.
    Answer:
    Applicants for TDPs must be tested for use of illegal drugs before they are selected or assigned to such positions.
     
  • Question: The current requirements under 10 CFR 707.8 state, "an applicant for a testing designated position will be tested for the use of illegal drugs before final selection for employment or assignment to such a position." There is not a provision for the grand fathering of existing personnel with an L or Q clearance. How does DOE propose, and by what legal basis, to exempt the pre-assignment drug testing requirement for existing L and Q personnel?
    Answer:
    Part 707 does not require "pre-assignment drug testing for existing "L" and "Q" personnel." However, such personnel must be included in the TDP pool for random drug testing at a rate of 30% (see 10 CFR § 707.7) and for-cause testing. See §§ 707.9, 707.10.
     
 707.9 Drug testing as a result of an occurrence. 
 707.10 Drug testing for reasonable suspicion of illegal drug use.
  • Question: When you use the word "for cause" that is not a substance abuse reason for a drug test, so "for cause" you mean reasonable suspicion, post accident maybe fitness for duty maybe return to duty?
    Answer:
    DOE's use of the term "for-cause" refers to any of the conditions or events that require testing pursuant to §§ 707.9, 707.10. The Substance Abuse and Mental Health Services Administration (SAMHSA) guideline uses the terminology "reasonable suspicion/cause." Normally, for cause or reasonable suspicion is used when a supervisor or other authority believes that a person may be under the influence of a substance. No accident or other event needs to have occurred to request testing for cause/reasonable suspicion. Rather the individual may be acting in a manner that suggests being under the influence such as slurred speech, staggering or falling for no apparent reason, gaze nystagmus (eyes unable to track an object appropriately), odors of substances such as burning marijuana, or the individual may have illegal substances in their possession.
 707.11 Drugs for which testing is performed.
  • Question: Does the drug testing include alcohol? Which drugs do you currently test for?
    Answer:
    At this time alcohol is not one of the drugs required to be a part of the drug testing program. Section 707.11 and SAMHSA require testing for: Marijuana, Cocaine, Opiates, Phencyclidine, and Amphetamines. In addition, § 707.11 permits contractors "to test for any drug listed in schedules I or II of the Controlled Substances Act." 
 707.12 Specimen collection, handling and laboratory analysis for drug testing.
  • Question: Please post some guidance on whether any form of drug testing - other than urine testing - under 707 is acceptable. In particular, are oral/saliva tests acceptable? If the oral/saliva test is not acceptable, is there any guidance on increase costs to your contractors?
    Answer:
    10 CFR 707.5(A) requires all drug testing to follow the Department of Health and Human Service's Mandatory Drug Testing Guidelines. The Guidelines define a "Specimen" as "the portion of urine that is collected from a donor." Since the rule mandated the Mandatory Guidelines, oral/saliva test are not acceptable.
     
  • Question: Provided the chain of custody requirements of 10 CFR 707 were followed, will employees being submitted for a security clearance be required to have a new urine drug analysis, or will their pre-employment screening be sufficient to meet this modification to the Rule?
    Answer:
    There is no requirement in 10 CFR 707 for an initial baseline screening. All L and Q cleared employees must be added to the random selection pool and 30% of this pool must be tested on an annual basis. See § 707.7.
     
  • Question: Since positions requiring a security clearance will now be testing designated positions, and these positions will be considered new testing positions, will a baseline urine drug analysis of all employees currently holding security clearances be required?
    Answer:
    No. A baseline urine drug analysis of all employees currently holding security clearances is not required.
     
  • Question: Will DOE provide contractors with the name and contact information of the company providing drug testing services (if any) at DOE sites for possible contracting of services with the contractor?
    Answer:
    Drug testing facilities are certified by the Department of Health and Human Services' Substance Abuse and Mental Health Services Administration (SAMHSA). The list is published in the federal register and can be found on the 10 CFR 707 website at http://www.hss.energy.gov/HealthSafety/WSHP/rule851/rule707.html.
  • Question: Your Answer to an earlier question of, "Where will the drug test be held?" stated "...may be located at a government or contractor facility..." Our current testing (pre-employment only) is done under contract with a local, off-site (national corporation chain) laboratory. Will this be an acceptable facility to meet DOE requirements for expanded testing?
    Answer:
    Yes, if the lab is certified by SAMHSA.
     
  • Question: Will this drug testing be administered by DOE?
    Answer:
    DOE will only administer the DOE Order for Federal employee substance abuse programs.
     
  • Question: Regarding the time requirement for the actual testing - is there a time requirement that they must report?
    Answer:
    Section 707.5(b)(6) requires "[i]mmediate notification to DOE security officials whenever the circumstances in connection with procedures under [Part 707] raise a security concern as provided in DOE Orders, rules and regulations." Section 707.14(b)(1) requires that the contractor immediately notify DOE security officials when an employee in a TDP who holds or is an applicant for access authorization as been tested and determined to have used an illegal drug. Section 707.16(a) requires that confirmed positive test results be provided to DOE officials with a need to know but, does not provide a time requirement.
     
  • Question: Does DOE have to approve the drug testing vendor?
    Answer:
    No, DOE will not approve the drug testing vendor. However, the laboratory the vendor uses must be certified by SAMHSA for drug testing.
     
  • Question: Does DOE have any specific requirements on the methods of testing?
    Answer:
    Yes, 10 CFR 707.5(A) requires the drug testing program to be consistent with the mandatory guideline of the Department of Health and Human Service's Mandatory Guidelines for Federal Workplace Drug Testing Programs.
     
  • Question: Designated Labs - Some contractors and employees have personnel throughout the country who can be tested at approved labs. However, does DOE require that the names of those labs and their MRO's be given to DOE for approval ahead of time or is it enough to say that it is a lab that is approved to do federal drug screens.
    Answer:
    No, DOE does not require the names of the labs and their MROs to be given to DOE for approval ahead of time
     
  • Question: How many sites are doing POC (point of collection) testing, (instant testing) as their screening process for the TDP program? No problems with HQ in terms of POC testing?
    Answer:
    The DOE site occupational medicine programs do not perform POC. Unless the collection site is the actual SAMHSA approved laboratory, this does not seem appropriate. The testing, all of it - even if "instant screening" - should be done at a SAMHSA approved lab so the results will be less likely called into question.
     
  • Question: Since we'll have a population of contractors out there contracting for analytical support for the laboratories, will there be any qualification of the support laboratories and who will do the qualification. Will you publish a list is basically what I am asking?
    Answer:
    No. The program must use a SAMHSA approved laboratory as identified in the HHS Mandatory Guidelines.
     
  • Question: You mentioned some amendment as to the container or partial containers, I didn't think under 707 you were required for spilt specimens are you saying that that's a requirement now?
    Answer:
    No, 10 CFR Part 707 has been amended to not allow combining urine samples to obtain a sufficient amount of urine for testing. The amendment brings the rule into alignment with the current practice specified in the HHS Mandatory Guidelines. See 10 CFR 707.12 (b)(2) as amended by the final rule published in the Federal Register on January 23, 2008 (73 FR 3861).
 707.13 Medical review of results of tests for illegal drug use.
  • Question: For the new TDP (Testing Designated Positions) drug results - does the MRO need to sign every negative?, or can we abide by DOT 49 CFR Part 40.127(g)(2) which states: "You are required to personally review at least 5% of all CCFs reviewed by your staff on a quarterly basis, including all results that required a corrective action. However, you need not review more than 500 negative results in a quarter." Currently, we are reviewing 100% of all HRP negatives.
    Answer:
    Title 10 CFR 707.5(a) requires DOE contractors to develop a written program that meets the requirements specified in the guidelines of the Department of Health and Human Services' Mandatory Guidelines for Federal Workplace Drug Testing Programs. Therefore, all results - negative or positive - should be signed by the MRO.
     
  • Question: Once the drug test is evaluated by the MRO how are those results provided to DOE?
    Answer:
    In the limited situations in which the results must be provided to DOE (see §§ 707.5(b)(6), 707.14(b)(1), 707(16(a)), the results should be sent via secure communications (fax, electronic, U.S. Mail, or delivery service) to the appropriate DOE security officials.
     
  • Question: It is our understanding that the contractor employer will contract with an approved testing facility and then administer a program where we send each TDP positioned contractor to be tested. Is this accurately stated? If yes, where and by what means are we to send certified results within DOE of Dept Health Human Services to the MRO for review and qualification?
    Answer:
    Yes, each employee in a TDP position will be sent to an approved collection center. Under strict chain-of-custody, urine is collected at a collection center; urine is shipped to a SAMHSA-approved laboratory where it is tested under HHS Mandatory Guidelines; results are reviewed by and determined either positive or negative by an MRO; the MRO sends the results to the approved person at the organization where the individual works.
     
  • Question: Who is the accepted MRO for certifying a drug test obtained by a self-employed contractor (e.g., a consultant, DOE-consultant psychiatrist/clinical psychologist, etc.) who must locate and self-refer to an acceptable drug testing laboratory/facility?
    Answer: When a self-employed contractor goes for drug testing, the drug testing company will follow the usual procedures under HHS Mandatory Guidelines, which include having an MRO determine whether the test is positive or negative. See § 707.13. The self-employed contractor may contact a drug testing company to obtain drug testing service as a single individual. Many private occupational medicine clinics offer drug testing services. Or, the self-employed contractor may become a part of the prime contractor substance abuse program.
 707.14 Action pursuant to a determination of illegal drug use.
  • Question: Do we provide DOE directly when we have positive Drug Tests?
    Answer:
    Title 10 CFR § 707.14(b)(1) requires contractors to immediately notify DOE security officials for appropriate adjudication when an employee has been tested and determined to have used an illegal drug. See also § 707.5(b)(6).
     
  • Question: If contractor employees have a positive test, will they be able to work in non L and non Q positions on contract work for DOE while they are undergoing their rehabilitation?
    Answer:
    Yes, as long as the employee is in a non-testing designated position. See 10 CFR § 707.14 (b)(1).
     
  • Question: In regards to subcontractors let say they are using our drug testing program, our person would notify their security office and pull their badge of course? What would we need to do besides that?
    Answer:
    Employees for whom the MRO has made a determination of illegal drug use must be immediately removed from the testing designated position. DOE security officials will provide the appropriate adjudication for the individual regarding the employee's access authorization. See § 707.14(b)(1).
 707.15 Collective bargaining.
  • Question: What of the one year labor negotiation clause outlined in 707. The Secretary's letter implies contractors will implement immediately.
    Answer: Contractors in collective bargaining relationships with labor unions need not immediately implement the rule's requirements for "Q" and "L" clearance holders. Rather, if one year after the commencement of negotiations, the parties have not agreed to the terms of a drug testing program under 10 CFR 707.15, then the contractor must implement all of the rule requirements without further negotiation.
     
  • Question: Labor Unions? How is this policy going to affect the contractors who have employees that are represented by Labor Unions? Responses from vendors so far have been: "These things have to be negotiated with the contractors."
    Answer:
    Contractors must negotiate with employee representatives, as appropriate under labor relations laws or negotiated agreements, when establishing drug testing programs. However, as noted in the answer to the prior question, a contractor must implement without further negotiation all rule requirements one year after the commencement of contract negotiations.
     
  • Question: Should we encourage our contractors with Labor Unions to submit those questions to DOE headquarters?
    Answer:
    No, DOE Headquarters cannot be involved in negotiations with the unions.
  • Question: Under the provision of collective bargaining, how long do you have to bargain with your unions before and impact is declared, the current regulation indicates 1 year.
    Answer:
    Correct 10 CFR 707.15 states "that if one year after commencement of negotiation the parties have failed to reach agreement … the contractor will unilaterally implement the requirements of this rule."
 707.16 Records.
  • Question: What if the contractor does not maintain employee medical records? Where will we file the drug testing results?
    Answer:
    The drug testing records should be secured and maintained according to DOE medical records maintenance regulations, which is probably 75 years after the last day the individual works at DOE. The tests results should be stored (locked up) separate from other personnel records.
     
  • Question: Will the records from their drug test go into their medical charts?
    Answer:
    Yes, if the organization has medical charts, the drug test results may be kept in the medical charts, which should be locked up when not in use. Section 707.16(d) requires that the specimen chain of custody forms be maintained as part of the contractors' medical records.
 707.17 Permissible actions in the event of contractor noncompliance.

 Procurement/Contract Issues:

  • Question: It was stated during the conference that the start up costs involved in preparation and implementation of this project was reimbursable. If a contractor has several contracts with DOE, what office (contract) should the costs to be charged to?
    Answer:
    Ideally, the costs will be prorated across the contracts in an equitable manner. It is anticipate that contract circumstances will dictate multiple pricing approaches. For example, a commercial protective force contractor may already have an employee drug testing program that includes all the elements of 10 CFR 707. That contractor may only need to furnish a letter describing its program. Another may not have had the clause in its contract and had no employees in testing designated positions but now may need to propose and administer such a program.
     
  • Question: Will there be further guidance on the allowability of costs for these new procedures?
    Answer:
    Yes, further information will be forthcoming.
     
  • Question: Are consultants and other subcontractors working off site covered?
    Answer:
    Consultants and other subcontractors who exclusively work off-site are not covered by Part 707 but, may be covered by contract provisions later when the rulemaking to amend the Security contract clause is completed. If a contractor has a program that already includes off-site contractors in its pool of TDPs that is also acceptable.
     
  • Question: What about costs under a fixed rate time and materials contract with multiple tasks sponsored by various DOE offices?
    Answer:
    Like the answer at 1 above, there may be different approaches depending on contract circumstances such as the mix of customers to whom the costs should be fairly allocated.
     
  • Question: Will there be a contract amendment to include these requirements and cover the costs since we had no employees in Testing Designated Positions when we began our contract?
    Answer:
    There will be a contract amendment but the requirements of the regulation apply by operation of law, regardless of whether the contracts are amended.
     
  • Question: We do not currently have any employees in testing designated position employees but with this change we will. Will there be an opportunity for contractors such as us to have our contracts modified to cover the costs of testing which is required simply because of DOE work and required to have those people tested?
    Answer:
    Yes, your contract will be modified to recognize this change. Any change in estimated cost or fixed price should be discussed with your contracting Officer.
     
  • Question: Since none of the contracts have been modified to reflect the changes being made in 10 CFR 707 at this time, will costs incurred to develop written plans and procedures be allowable costs if they precede modification of the contract?
    Answer:
    Yes, it is the Department's intention that necessary steps to implement the drug testing program be accomplished in as timely a manner as possible taking into account the procedures required by 10 CFR 707 such as employee notification. At the conclusion of the consultation process, we will issues clear instructions in this regard.
     
  • Question: We have new contracts ready for award that do not yet have these new requirements in them, what do we do since we have been told the DOE Security Office will not process the security clearance requests without a negative drug test result?
    Answer:
    Since this is now a requirement, it would seem that the requirement should be added to the draft contracts and discussions should be completed concerning any cost impact. Alternatively, the contracts could be awarded and then amended under the changes authority. That would lead to the steps described in Answer 24 below.
     
  • Question: How will the cost of this new requirement be covered and will this be incorporated into new contracts?
    Answer:
    You will be allowed to propose your estimated additional costs and negotiate an equitable adjustment in a subsequent contract modification.
     
  • Questions: Are the costs associated with the drug testing program an allowable direct charge?
    Answer:
    Treatment of the costs may vary depending on contract circumstances.
     
  • Question: We have an employee drug testing program but it only covers applicant or new employee testing. Will we have to modify our program and will those costs be allowable?
    Answer:
    Yes, the program will have to be modified to include random and "for cause" testing.
  • Question: Will this program guidance be provided to prime contractors via contract modification for flow-down to subcontractors?
    Answer:
    Yes.
     
  • Question: Our contract is not for a single DOE site operation and we provide inspectors on a part-time employee basis that live in various parts of the U.S. They are only used when needed to support an inspection. What are the expectations for the potential frequency of drug testing? Are all cleared employees subject to testing at the same rate regardless of how often they are used or may they be placed in a separate testing pool that only gets tested when they are working at a DOE site?
    Answer:
    All employees are placed in a pool subject to random testing. Whether the employees are on stand-by status or working on an assignment at the time they may be randomly selected for testing.
     
  • Question: Will this contractor cost be considered as "other direct costs"?
    Answer:
    The adjustment in contract estimated cost or price may vary based on contract circumstances. You should discuss this matter with your contracting officer. Treatment as an "other direct cost" would be one of the possible solutions.
     
  • Question: Will this new directive require the contractor to formally address operational impact and how will they be required to do this? Addressing cost as well time? During the procurement process this area needs to be carefully spelled out. Will this be a new area that will be formally or generally addressed as far as operational impact of cost on the contractors?
    Answer:
    If you do not already have a program plan in place you will be expected to develop one and obtain approval of the plan. Even those with approved plans will be expected to modify it fit the new definition of testing designated position.
     
  • Question: Contract modification - Where then does the contract modification fall into this time line, do we have to wait for the Contract Mod to come down to say this requirement is now added to your contract?
    Answer:
    The modification will come later. DOE's letter advising you of the change in 10 CFR 707 was the change. In response to it you will be expected to submit a program plan and proposal which can lead to an equitable adjustment to the contract in the form of a contract modification.
     
  • Question: Drug Testing Policy Development - As it has been understood, if we do not have a Contract Modification this would not be billable work. Could that please be clarified? How will contractors bill these kinds of cost? i.e. T&M/Fixed Price Contracts
    Answer:
    This needs to be discussed with your contracting office as differing circumstances suggest different solutions.
     
  • Question: Acquisition letters and language; trying to clarify what subcontractors this applies to seem to stress place of performance. Is performance of classified work in DOE space the determining factor? Please clarify.
    Answer:
    Whether the work is performed on site or off site makes a difference only in when the change is effective. Contracts performed on DOE sites should already have had a contract clause requiring a drug testing program. DOE is making the change in those contracts effective immediately. Contracts performed off site did not have this clause but a rulemaking is in process to amend the Security clause to reflect this change. When the rulemaking is completed these contracts will be modified.
     
  • Question: We have multiple prime contracts. What's in a pool? Would our pool consist of all of our DOE prime contracts? Or, would the pool be defined as per contract?
    Answer:
    A single pool is contemplated.
     
  • Question: Any discussion about contractual possibility in a change process for small business requirements?
    Answer:
    It may be possible for small contractors to have their personnel placed in the facility manager pool of testing designated positions.
     
  • Question: I notice in the clause there are a lot of contractual remedies that sound pretty stiff, for not conducting the program in a good consistent manner. Is there any precedent on what case a contractor has to be concerned about on his/her wrists for these contractual remedies? For example, if there is an employee that tests positive, would there be an investigation if the contractor was conducting his program correctly? Hence, being subjected to contractual remedies, withholding payments, reducing award fee, etc.
    Answer:
    There is no historical data on which an answer could be based. It would seem unlikely that a contractor could/should be punished for the action of an individual employee.
     
  • Question: Do you have any records of the national office, the committee, or the administrators of Ability One, on any input they had? Our regional office is concerned and wants to hear if there is anything in particular that would apply to the concern of a workshop serving the blind and other severely handicapped?
    Answer:
    Ability One is a federal program for contracting with workshops which employ the blind or severely disabled. 10 CFR 707 makes no exception for this program so testing will be applicable for those with Q or L security clearances. There was no advance coordination with Ability One. The contracting officer administering such contracts at DOE Headquarters did not contemplate a problem.
  • Question: We have contractors that are trying to start work but cannot because we have requirements that have not been brought into the contract and so how can we enforce a policy that's not even in our contract?
    Answer: At the conclusion of the consultation process, the contracting officer will amend existing contracts to comply with the new requirement under the authority of the changes clause. You will then need to develop and submit a program plan and if needed a request for an equitable adjustment.
     
  • Question: What about subcontractors with cleared employees who do not perform on site?
    Answer:
    For practical reasons, you may wait to cover such employees until the separate rulemaking to modify 48 CFR 952.204-2 is completed for off site contracts. If you have already included such personnel in your testing pool that is not viewed as a problem.
     
  • Question: When will the contracting officers be directed to include the Secretary's Memorandum in the contracts, and who will pay for the added costs in this time of reduced budgets. The Federal Register of 23 Jan 08 did not change the TDP definition, and therefore, we are still in compliance with the CFR but not the Secretary's Memorandum, because we as contractors do not automatically follow a Secretarial Memorandum without a contract change. In other words, until the Secretary's Memorandum is made part of the contract, the CFR change had little or no impact on most contractors.
    Answer:
    At the conclusion of the consultation period, the contracting officers will be given further specific direction on this point. Testing Designated Positions are defined broadly at 10 CFR 707.4 and, additionally, 10 CFR 707.7(b)(4) allows the Department to identify additional positions after consultation with the contractors. The purpose of this consultation is to let you know that it has been determined that positions requiring security clearances are being added to the definition. The instructions to and from the contracting officers will include more detail on this matter. In the case of off-site contractors, this will be implemented a bit later as a separate notice of proposed rulemaking published un the Federal Register on February 19, 2008 (73 FR 9071) began the rulemaking process to amend the Security clause of the Department of Energy Acquisition Regulation.
     
  • Question: What are the funding sources for this new work scope?
    Answer: The Office sponsoring the work will be expected to cover the changed costs.
 Security Issues:
  • Question: UT-Battelle currently has 200 clearances pending at DOE. These are either for new or reinstated clearances. There are also requests pending for upgrades of clearances. Will a urine drug analysis be required for those clearances that were pending before this change?
    Answer:
    Yes, the negative drug test results must be provided to the personnel security office before an individual can be granted a security clearance.
     
  • Question: For the major contractors who are onsite who already have a program and who are expanding it immediately and who are dealing with smaller offsite subcontractors who do not have a program. How do we resolved the issues that they are not accepting clearances or issuing clearances until the people are drug tested and we don't have a program in place? And, it's going to be at least 60 days till we get a program approved and in place and notify the employees. How do we resolve that?
    Answer:
    The subcontractor without an existing program can follow the requirements of 10 CFR 707 for establishing a program or they could include the newly identified TDP's in the Prime's existing program.
  • Question: Can the pre-employment drug test be used to fill initial enrollment criteria? If so, what proof is acceptable and how far back, e.g., an employee transferring to another project that requires a security clearance had a pre-employment drug test XX years ago?
    Answer:
    All requirements of 10 CFR 707 must be fulfilled with respect to records. If the individual has been tested within the past year that drug test will be acceptable.
     
  • Question: Some of the new enrollees travel extensively and/or work at other Sites for prolonged periods. What is policy when an individual randomly selected is not available or is repeatedly nor available for testing?
    Answer:
    Random selection and testing of individuals is performed on an annual basis. Individuals must be informed of their selection for a drug test by their supervisor no more than two hours prior to the scheduled testing time. If an individual is on travel at the time of selection the supervisor may request a drug test at the employee's current location or wait until the employee returns to the home office and then notify them of their selection for testing.
     
  • Question: Even if a subcontractor has a requirement that does not involve access to "classified" information, but he/she still falls in the "testing pool" during the period of subcontract performance because he/she has a clearance? And, if we, as a prime did not "sponsor" the clearance for a subcontractor, do we rely on the people who did so to include in their pool and therefore not ours?
    Answer:
    Yes, as long as a person has a security clearance they fall in the pool. You raise an interesting point. If someone other than DOE issued the clearance, for example a DOD contractor working on our site, I think we are required to recognize their clearance as a reciprocal clearance under the National Industrial Security Program Operating Manual. The other agency clearance might or might not have a drug testing program but all the agencies seem headed that way.
     
  • Question: As a support service contractor we have been directed to comply with the September 14, 2007 memorandum regarding drug testing for Department of Energy (DOE) positions that require security clearances. Our company, as a standard practice, performs a drug test on each of its prospective employees prior to making an offer of employment. However, the security clearance process can take up to twelve months or longer. Will our company be required to re-test its employees that are in the final stage of being granted a clearance if their drug test was performed months ago?
    Answer:
    Security will accept a drug test that is within 12 months of the original QNSP date. Once the clearance is granted, the employee will then be part of the random pool provided there are no disqualifying issues to be resolved.
     
  • Question: What is the Department's position on clearance requests for individuals who are state employees, paid by the state who need a clearance for access to the facility? Do they need to take a drug test? Are they considered to be in a TDP even though they are not DOE federal or contractor employees?
    Answer:
    10 CFR 707.2 Scope defines who this rule covers i.e., DOE contractors. If the individual in question is not working for a DOE contractor then they are outside the scope of 10 CFR 707.
     
  • Question: How will the results of the drug testing be coordinated with the DOE clearance investigation package? Do we need to have the results in hand prior to submitting a clearance package?
    Answer:
    Yes, the results of the drug test are to be submitted by the contractor at the time they are submitting the paperwork needed for the security clearance to be processed. The test results are not to be more than 12 months old when submitted. So if it takes a long time (say 15 months or more) to process the investigation and adjudicate the clearance eligibility, that will not have an adverse impact on the contractor. The critical time for the contractor to meet is that the drug test should be no more than 12 months old by the time they are submitting the request to DOE for the clearance to be processed.
     
  • Question: For those in process already, should we get the testing done now and send results or wait until we are notified by security that the processing is finished before we send them out to be tested?
    Answer:
    The negative results should be sent the personnel security office upon completion of the drug test.
     
  • Question: Please clarify what is meant by "immediate coverage for on site contractors and deferred coverage for off site contractors." Should all onsite contractors with Q and L clearances immediately be placed in a random drug testing pool or are we still waiting for more direction before implementing such a program?
    Answer:
    To comply with all applicable requirements, there will be different implementation dates for on-site and off-site contractors. See the Implementation Date web page of the 10 CFR 707 website for more information.
     
  • Question: Regarding the language on the fact sheet, for positive drug tests, the language says that you will require the applicant that are drug tested to be drug free for 12 months, how is that going to be proved? It needs to be defined more clearly.
    Answer:
    Personnel Security will rely on the individual's security forms/or subject interview if applicable. In addition, a new applicant will require a new drug test.
     
  • Question: During this DOE initiation of formal consultation with the contractors on implementing the drug testing requirements under 10 CFR 707 for the new L and Q TDP, how is it that the DOE Service Center has since early November 2007 implemented the provisions of 10 CFR 707.8? Specifically, that they have ceased to process any new L or Q clearance requests or grant any pending L or Q clearances without a negative drug result sent to them. This has created an immediate and grave impact to contractor operations without the requisite consultation process under 707.7 (b)(4).
    Answer:
    This was a decision made by NNSA. Questions about this issue should be directed to the contracting officer and/or the Head of DOE Field Element.
     
  • Question: The NASC has required that drug test results accompany the clearance request submitted via e-QIP. Should those tests be dated within one year of the date received by the NASC via e-QIP? If not, how old may the test be and what is the start date that will be used for measurement?
    Answer:
    Yes. Drug test results cannot be more than one year old from the date of the original application.
  • Question: For applicants that meet the definition of a federal or contractor applicant for security clearances (new hires and on board) determined to be favorably adjudicated but whose file does not contain proof of a negative drug test, should those tests be dated within one year of the date the test results are received by the NASC? If not, how old may the test be and what is the start date that will be used for measurement?
    Answer:
    Security will accept a drug test that is within 12 months of the original QNSP date.

  • Question: For applicants that meet the definition of a federal, contractor and subcontractor applicants for security clearances (new hires and on board) whose cases have already been submitted to an investigative agency but not adjudicated (cases open at OPM, cases closed/pending, cases closed/complete) and have documented illegal drug use within 12 months of signing the QNSP, or the definition of a Federal or contractor applicant for security clearances (new hires and on board) determined to be favorably adjudicated but whose file does not contain proof of a negative drug test, the clearance process, including the investigation and adjudication may exceed one year, which means any submitted drug test may be more than one year old when the individual is ultimately otherwise determined to be eligible for the clearance to be granted. Is that acceptable or must the individual be retested?
    Answer: Security will accept a drug test that is within 12 months of the original QNSP date. Once the clearance is granted, the employee will then be part of the random pool provided there are no disqualifying issues to be resolved.
  • Question: When will formal (written) guidance be provided to the personnel security organizations so that clarification can be provided to customers?
    Answer: The Office of Health, Safety and Security's website will be continuously updated as new guidance/policy is developed. In addition, frequently asked questions and answers will be posted regularly. Individuals that already have security clearance must receive the appropriate drug testing notification that will make them subject to random drug testing.

  • Question: Are tests obtained while employed by a company or under a DOE/NNSA contract different than the current employer requesting the access authorization acceptable if they meet the recent (January 23, 2008) requirements?
    Answer:
    Yes.

  • Question: We have recently awarded contracts which have employees requiring security clearances but the DOE Security Office refuses to process the clearance requests because there is no evidence of a negative drug test even though the contracts have not been modified to require this. What do we do?
    Answer: At the next step of implementation the contract will be amended to require the drug testing. At that time you will be required to submit a negative result drug tested applicant or submit a different applicant who has a negative drug test result. We cannot make the decision for the employer but the simplest explanation would seem to be to suggest to the applicant that they submit to a drug test.

 Miscellaneous Issues:

  • Question: Medical Review Officers do not all agree on how to judge use of one's family member's prescription medication. Is it illegal use of a legal substance if I take my husband's codeine cough syrup? Is "spousal use" illegal, if it is not specifically prohibited in a company's policies?
    Answer:
    Spouse use is not acceptable under the SAMHSA Medical Review Officer guidelines. The guidelines under Donor Explanations for prescriptions state: "If the donor claims to have taken a prescribed medicine that contains either the drug reported positive or a substance that can metabolize to that drug, the donor must provide one of the following:

    The MRO may contact the prescribing physician or the pharmacist who filled the prescription to verify the information provided by the donor.

    • A copy of the prescription,
    • The medicine container with the appropriately labeled prescription (or the label from the container), or
    • A copy of the medical record documenting the valid medical use of the drug during the time of the drug test.
  • Question: How much time will contract people be away from the workplace for drug testing?
    Answer:
    Please check with your sites substance abuse program coordinator to determine the average time it takes to perform required drug testing at you location.

  • Question: Will the drug testing requirement be require in vacancy announcements for Q & L classified personnel?
    Answer:
    All L& Q cleared positions will have to be included in a drug testing program.
     
  • Question: It is our understanding that the Secretary chartered a working group to advise him on this topic. Did the working group contact the M&O contractor security community at all? If so, who at the various M&O affected contractors were contacted?
    Answer:
    The Secretary did not establish an advisory committee to advise him on this topic. The Department does not make its internal deliberations public, and to the extent this or other questions requested it to do so, we decline to provide answers.