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Federal Register / Vol. 86, No. 170 / Tuesday, September 7, 2021 / Proposed Rules
lotter on DSK11XQN23PROD with PROPOSALS1

submissions at this time. If a commenter finds that this change poses an undue hardship, please contact Ms. Moriah Ferullo at 301 9030881 to discuss the need for alternative arrangements. Once the Covid19 pandemic health emergency is resolved, DOE anticipates resuming all of its regular options for public comment submission, including postal mail and hand delivery/courier.
For detailed instructions on submitting comments and additional information on the rulemaking process, see section V. of this document Public ParticipationSubmission of Comments.
Docket: The docket, which includes Federal Register notices, comments, and other supporting documents/
materials, is available for review at https www.regulations.gov. All documents in the docket are listed in the https www.regulations.gov index.
However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available. A link to the docket web page can be found at: https
www.energy.gov/ehss/contractorworkplace-substance-abuse-programdoe-sites-10-cfr-707. This web page contains a link to the docket for this document on the https
www.regulations.gov site. The https
www.regulations.gov web page contains instructions on how to access all documents, including public comments, in the docket. See section V. of this document for further information on how to submit comments through https www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ms.
Moriah Ferullo, U.S. Department of Energy, Office of Environment, Health, Safety and Security, AU11, 1000
Independence Avenue SW, Washington, DC 20585; 301 9030881 or by email at: moriah.ferullo@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Background II. Authority III. Discussion of Proposed Amendments IV. Procedural Review Requirements A. Review Under Executive Order 12866
and 13563
B. Review Under the National Environmental Policy Act C. Review Under the Regulatory Flexibility Act D. Review Under the Paperwork Reduction Act E. Review Under the Unfunded Mandates Reform Act of 1995
F. Review Under the Treasury and General Government Appropriations Act, 1999
G. Review Under Executive Order 13132
H. Review Under Executive Order 12988
I. Review Under the Treasury and General Government Appropriations Act, 2001

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J. Review Under Executive Order 13211
V. Public ParticipationSubmission of Comments VI. Approval by the Office of the Secretary of Energy
I. Background Pursuant to the Department of Energys DOE or the Department statutory authority, including the Atomic Energy Act of 1954, as amended AEA, and the Drug-Free Workplace Act of 1988, DOE promulgated a rule on July 22, 1992 57 FR 32652, establishing minimum requirements for DOE contractor workplace substance abuse programs. The rule provided for drug testing of contractor employees in, and applicants for, testing designated positions TDPs at sites owned or controlled by DOE and operated under the authority of the AEA. The Department determined that possible risks of serious harm to the environment and to public health, safety, and national security justified the imposition of a uniform rule establishing a baseline workplace substance abuse program, including drug testing. The rule created a new Part 707 of Title 10 in the Code of Federal Regulations CFR entitled Workplace Substance Abuse Programs at DOE
Sites.
On September 14, 2007, the Secretary of Energy Secretary issued a memorandum addressing drug testing for DOE positions that require access authorizations security clearances. The memorandum stated the Secretarys determination that all Federal and contractor positions that require a security clearance, and all employees in positions that currently have security clearances, have the potential to significantly affect the environment, public health and safety, or national security. The Secretary determined that all such positions would be considered to be TDPs, which means they are subject to applicant, random, and for cause drug testing. The Secretary further determined, with regard to random drug testing, that employees in TDPs, other than those designated to be included in the 100 percent annual sample pool primarily employees in the Human Reliability Program, be tested at a 30
percent annual sample rate. To implement the memorandums provisions regarding TDPs for DOE
contractor employees, the Department issued a final rule at 10 CFR part 707.
See 73 FR 3861 Jan. 23, 2008.
However, the 2008 final rule contained incorrect section references. Whereas 10
CFR 707.7a2 states that positions identified in paragraph b3 of this section shall provide for random tests at
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a rate equal to 30 percent of the total number of employees in testing designated positions for each 12-month period, the correct reference should have been to paragraphs b2 and b3. Furthermore, the second sentence of 10 CFR 707.7a2, 10 CFR
707.7b2iii, and 10 CFR 707.14e each contain an incorrect reference to paragraph b2 of 10 CFR 707.7. Since TDPs identified in paragraph b2
should be tested at a 30 percent annual sample rate and do not require DOE
approval for return to work after illegal drug use, the references to b2 in the second sentence of 10 CFR
707.7a2; in 10 CFR 707.7b2iii;
and in 10 CFR 707.14e should be removed. The proposed second sentence of 10 CFR 707.7a2 would state that employees in the positions identified in paragraphs b1 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 paragraphs b1 and c of this section may be subject to additional drug tests. DOE proposes to replace the reference to b2 with c in 10 CFR 707.7b2iii. In accordance with the 2007 Secretarial memorandum, and because there is a continued need for these changes, DOE proposes to add a new requirement at 10 CFR
707.7b2vi that access authorization security clearance holders be tested.
That proposed section would refer to all other personnel in positions that require an access authorization security clearance, other than those identified in paragraphs b1 and c of this section.
II. Authority This proposed rule would continue to establish minimum requirements for the workplace substance abuse programs for DOE contractors and their employees, and would be promulgated pursuant to DOEs authority under section 161 of the AEA to prescribe such regulations as it deems necessary to govern any activity authorized by the AEA, including standards for the protection of health and minimization of danger to life or property 42 U.S.C. 2201i3 and p and section 8102 of the Drug Free Workplace Act of 1988, as amended 41
U.S.C. 8102.
III. Discussion of Proposed Amendments This proposed rule would amend DOEs regulations on contractor workplace substance abuse programs at DOE sites to modify the random drug testing rate of contractor employees in TDPs, other than those in the 100
percent rate of testing pool, and to clarify that all positions requiring access
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