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Federal Register / Vol. 86, No. 170 / Tuesday, September 7, 2021 / Proposed Rules
authorizations security clearances are TDPs, as the Secretary established in 2007.
Currently, 10 CFR 707.7a2
provides that contractor employees in positions identified in paragraphs 10
CFR 707.7b2 will be subject to random testing at a rate equal to 100
percent of the total number of employees identified. The 2008
revisions to the rule incorrectly placed these TDPs in the random testing rate of 100 percent, which was never the intent of the Department. Rather, the employees identified in paragraph 10
CFR 707.7b2 should have been placed in the 30 percent testing rate category and their return to work in TDPs after illegal drug use should not require DOE approval. This proposed rule would modify references to the employees identified in 10 CFR
707.7b2 to be consistent with the Secretarys 2007 decision to decrease the random drug testing rate for certain TDPs. This proposed rule would also make clear that all positions requiring a security clearance are TDPs, as the Secretary had intended to establish in 2007.

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IV. Procedural Review Requirements A. Review Under Executive Order 12866
and 13563
This regulatory action has been determined not to be a significant regulatory action under Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 October 4, 1993.
Accordingly, this action is not subject to review under that Executive Order by the Office of Information and Regulatory Affairs OIRA of the Office of Management and Budget OMB.
DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011. 76 FR 3281
January 21, 2011. Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866.
To the extent permitted by law, agencies are required by Executive Order 13563
to: 1 Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs recognizing that some benefits and costs are difficult to quantify; 2 tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; 3 select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits including
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potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity; 4 to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and 5 identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, OIRA has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, DOE believes that this proposed rule is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.
B. Review Under the National Environmental Policy Act DOE has determined that this proposed rule is covered under the Categorical Exclusion found in DOEs National Environmental Policy Act regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR part 1021, which applies to interpretive rulemakings that amend an existing rule or regulation that do not change the environmental effect of the rule or regulation being amended.
C. Review Under the Regulatory Flexibility Act The Regulatory Flexibility Act of 1980
5 U.S.C. 601 et seq. requires that an agency prepare an initial regulatory flexibility analysis for any regulation for which a general notice of proposed rulemaking is required, unless the agency certifies that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities 5
U.S.C. 605b.
This proposed rule would update DOEs regulations on workplace substance abuse programs for its contractor workers. This proposed rule applies only to activities conducted by DOEs contractors. The contractors who manage and operate DOE facilities would be principally responsible for implementing the rule requirements.

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DOE considered whether these contractors are small businesses as the term is defined in the Regulatory Flexibility Act 5 U.S.C. 6013. The Regulatory Flexibility Acts definition incorporates the definition of small business concerns in the Small Business Act, which the Small Business Administration SBA has developed through size standards in 13 CFR part 121. The DOE contractors subject to the proposed rule exceed the SBAs size standards for small businesses. In addition, DOE expects that any potential economic impact of this proposed rule on small businesses would be minimal because DOE contractors perform work under contracts to DOE or prime contractors at a DOE site. DOE
contractors are reimbursed through their contracts for the costs of complying with workplace substance abuse program requirements. They would not, therefore, be adversely impacted by the requirements in this proposed rule. For these reasons, DOE certifies that this proposed rule, if promulgated, would not have a significant economic impact on a substantial number of small entities, and therefore, no regulatory flexibility analysis need be prepared.
D. Review Under the Paperwork Reduction Act This proposed rule does not impose any new collection of information subject to review and approval by OMB
under the Paperwork Reduction Act 44
U.S.C. 3501 et seq..
E. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 Pub. L. 1044 generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments.
Subsection 1015 of title I of that law defines a Federal intergovernmental mandate to include any regulation that would impose upon State, local, or tribal governments an enforceable duty, except a condition of Federal assistance or a duty arising from participating in a voluntary Federal program. Title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments, in the aggregate, or to the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of that title requires a Federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate, which may result in costs to State, local or tribal governments, or to the private sector, of
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