49932 Federal Register / Vol. 86, No. 170 / Tuesday, September 7, 2021 / Proposed Rules 

negatively impact the marketing of fresh 

Washington potatoes because this action 

reduces costs to both handlers and 

producers. Therefore, in an action taken 

on June 11, 2020, the Committee 

unanimously recommended that USDA 

terminate the Order. 

Section 946.63(b) of the Order 

provides that USDA to terminate or 

suspend any or all provisions of the 

Order when a finding is made that the 

Order does not tend to effectuate the 

declared policy of the Act. Furthermore, 

§ 608c(16)(A) of the Act provides that 

USDA shall terminate or suspend the 

operation of any order whenever the 

order or provision thereof obstructs or 

does not tend to effectuate the declared 

policy of the Act. An additional 

provision requires that Congress be 

notified not later than 60 days before the 

date on which order would be 

terminated. 

The Committee considered 

alternatives to this rule, including 

taking no action (which would keep the 

Order active but with the handling 

regulations suspended) and suspending 

all of the Order’s remaining regulatory 

provisions but not terminating the 

Order. The Committee determined that 

neither option was a viable long-term 

solution, and subsequently, 

recommended that the Order be 

terminated. 

This proposed rule is intended to 

solicit input and other available 

information from interested parties on 

whether the Order should be 

terminated. USDA will evaluate all 

available information prior to making a 

final action on this matter. 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

Chapter 35), the Order’s information 

collection requirements have been 

previously approved by OMB and 

assigned OMB No. 0581–0178 Vegetable 

and Specialty Crops. Termination of the 

Order and reporting requirements 

prescribed therein, would reduce the 

reporting burden on Washington potato 

handlers by an estimated 9.7 hours per 

handler. Handlers would no longer be 

required to file forms with the 

Committee, which is expected to reduce 

industry expenses. This rule would not 

impose any additional reporting or 

recordkeeping requirements on either 

small or large potato handlers. As with 

all Federal marketing order programs, 

reports and forms are periodically 

reviewed to reduce information 

requirements and duplication by 

industry and public sector agencies. In 

addition, USDA has not identified any 

relevant Federal rules that duplicate, 

overlap or conflict with this rule. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

Committee meetings are widely 

publicized throughout the Washington 

potato industry, and all interested 

persons are invited to attend the 

meetings and participate in Committee 

deliberations on all issues. Like all 

Committee meetings, the January 22 and 

June 11, 2020, meetings were public 

meetings, and all entities, both large and 

small, were able to express their views 

on these issues. Interested persons are 

invited to submit comments on this 

proposed rule, including regulatory and 

information collection impacts of this 

proposed action on small businesses. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: https://

www.ams.usda.gov/rules-regulations/ 

moa/small-businesses. Any questions 

about the compliance guide should be 

sent to Richard Lower at the previously 

mentioned address in the FOR FURTHER

INFORMATION CONTACT section. 

This rule invites comments on the 

proposed termination of Marketing 

Order 946, which regulates the handling 

of Irish potatoes grown in Washington. 

A 60-day comment period is provided to 

allow interested persons to respond to 

this proposal. All written comments 

timely received will be considered 

before a final action is made on this 

matter. 

Based on the foregoing and pursuant 

to § 608c(16)(A) of the Act and § 946.63 

of the Order, USDA is considering 

termination of the Order. If USDA 

decides to terminate the Order, trustees 

would be appointed to conclude and 

liquidate the Committee affairs and 

would continue in that capacity until 

discharged by USDA. In addition, USDA 

would notify Congress 60 days in 

advance of termination pursuant to 

§ 608c(16)(A) of the Act. 

List of Subjects in 7 CFR Part 946 

Marketing agreements, Potatoes, 

Reporting and recordkeeping 

requirements. 

For reasons set forth in the preamble, 

part 946 is proposed to be removed. 

PART 946—IRISH POTATOES GROWN 

IN WASHINGTON—[REMOVED] 

■ 1. The authority citation for part 946 

continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Accordingly, part 946 is removed. 

Erin Morris, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2021–19238 Filed 9–3–21; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF ENERGY 

10 CFR Part 707 

[AU–RM–19–WSAP] 

RIN 1992–AA60 

Workplace Substance Abuse Programs 

at DOE Sites 

AGENCY: Office of Environment, Health, 

Safety and Security; Department of 

Energy. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Department of 

Energy (DOE or the Department) is 

proposing to amend its current 

regulations on contractor workplace 

substance abuse programs at DOE sites 

to be consistent with the Secretary of 

Energy’s memorandum, dated 

September 14, 2007, entitled Decisions 

regarding drug testing for Department of 

Energy positions that require access 

authorizations (Security Clearances), 

and because there is a continued need 

for these changes. The proposed 

amendments would decrease the 

random drug testing rate for individuals 

in certain testing designated positions, 

and clarify that all positions requiring 

access authorizations (security 

clearances) are included in the testing 

designated positions. In addition, the 

proposed amendments would clarify 

requirements for DOE approval prior to 

allowing persons in certain testing 

designated positions to return to work 

after removal for illegal drug use. 

DATES: The comment period for this 

proposed rule will end on October 7, 

2021. 

ADDRESSES: You may submit comments, 

identified by Docket No. AU–RM–19– 

WSAP and/or Regulation Identification 

Number (RIN) 1992–AA60, through the 

Federal e-Rulemaking Portal: https://

www.regulations.gov. Follow the 

instructions in the portal for submitting 

comments. 

Although DOE has routinely accepted 

public comment submissions through a 

variety of mechanisms, including postal 

mail and hand delivery/courier, the 

Department has found it necessary to 

make temporary modifications to the 

comment submission process in light of 

the ongoing Covid–19 pandemic. DOE is 

currently accepting only electronic 


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submissions at this time. If a commenter 

finds that this change poses an undue 

hardship, please contact Ms. Moriah 

Ferullo at (301) 903–0881 to discuss the 

need for alternative arrangements. Once 

the Covid–19 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 

Participation—Submission 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, AU–11, 1000 

Independence Avenue SW, Washington, 

DC 20585; (301) 903–0881 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 

J. Review Under Executive Order 13211 

V. Public Participation—Submission of 

Comments 

VI. Approval by the Office of the Secretary 

of Energy 

I. Background 

Pursuant to the Department of 

Energy’s (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 Secretary’s 

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 memorandum’s 

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 707.7(a)(2) states that ‘‘positions 

identified in paragraph (b)(3) 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’’, the correct reference should 

have been to paragraphs (b)(2) and 

(b)(3). Furthermore, the second sentence 

of 10 CFR 707.7(a)(2), 10 CFR 

707.7(b)(2)(iii), and 10 CFR 707.14(e) 

each contain an incorrect reference to 

paragraph (b)(2) of 10 CFR 707.7. Since 

TDPs identified in paragraph (b)(2) 

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 ‘‘(b)(2)’’ in 

the second sentence of 10 CFR 

707.7(a)(2); in 10 CFR 707.7(b)(2)(iii); 

and in 10 CFR 707.14(e) should be 

removed. The proposed second sentence 

of 10 CFR 707.7(a)(2) would state that 

employees in the positions identified in 

paragraphs (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 paragraphs (b)(1) and 

(c) of this section may be subject to 

additional drug tests. DOE proposes to 

replace the reference to (b)(2) with (c) in 

10 CFR 707.7(b)(2)(iii). 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 

707.7(b)(2)(vi) 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 (b)(1) 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 

DOE’s 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. 2201(i)(3) 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 

DOE’s 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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49934 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 707.7(a)(2) 

provides that contractor employees in 

positions identified in paragraphs 10 

CFR 707.7(b)(2) 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 707.7(b)(2) 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 

707.7(b)(2) to be consistent with the 

Secretary’s 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. 

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 

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 DOE’s 

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. 605(b)). 

This proposed rule would update 

DOE’s regulations on workplace 

substance abuse programs for its 

contractor workers. This proposed rule 

applies only to activities conducted by 

DOE’s contractors. The contractors who 

manage and operate DOE facilities 

would be principally responsible for 

implementing the rule requirements. 

DOE considered whether these 

contractors are ‘‘small businesses’’ as 

the term is defined in the Regulatory 

Flexibility Act (5 U.S.C. 601(3)). The 

Regulatory Flexibility Act’s 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 SBA’s 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. 104–4) generally 

requires Federal agencies to examine 

closely the impacts of regulatory actions 

on State, local, and tribal governments. 

Subsection 101(5) 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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$100 million or more in any one year 

(adjusted annually for inflation). Section 

204 of that title requires each agency 

that proposes a rule containing a 

significant Federal intergovernmental 

mandate to develop an effective process 

for obtaining meaningful and timely 

input from elected officers of State, 

local, and tribal governments. 

This proposed rule does not impose a 

Federal mandate on State, local or tribal 

governments. The proposed rule would 

not result in the expenditure by State, 

local, and tribal governments in the 

aggregate, or by the private sector, of 

$100 million or more in any one year. 

Accordingly, no assessment or analysis 

is required under the Unfunded 

Mandates Reform Act of 1995. 

F. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277), requires 

Federal agencies to issue a Family 

Policymaking Assessment for any 

rulemaking that may affect family wellbeing. This proposed rule would not 

have any impact on the autonomy or 

integrity of the family as an institution. 

Accordingly, DOE has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

G. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999) imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have federalism implications. 

Agencies are required to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and carefully assess the necessity 

for such actions. DOE has examined this 

proposed rule and has determined that 

it would not preempt State law and 

would not have a substantial direct 

effect on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. No further 

action is required by Executive Order 

13132. 

H. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (February 7, 1996), 

imposes on Executive agencies the 

general duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 

affected conduct rather than a general 

standard and promote simplification 

and burden reduction. With regard to 

the review required by section 3(a), 

section 3(b) of Executive Order 12988 

specifically requires that Executive 

agencies make every reasonable effort to 

ensure that the regulation: (1) Clearly 

specifies the preemptive effect, if any; 

(2) clearly specifies any effect on 

existing Federal law or regulation; (3) 

provides a clear legal standard for the 

affected conduct while promoting 

simplification and burden reduction; (4) 

specifies the retroactive effect, if any; (5) 

adequately defines key terms; and (6) 

addresses other important issues 

affecting clarity and general 

draftsmanship under any guidelines 

issued by the Attorney General. Section 

3(c) of Executive Order 12988 requires 

Executive agencies to review regulations 

in light of applicable standards in 

section 3(a) and section 3(b) to 

determine whether they are met or it is 

unreasonable to meet one or more of the 

standards. DOE has completed the 

required review and determined that, to 

the extent permitted by law, this 

proposed rule meets the relevant 

standards of Executive Order 12988. 

I. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001 

(44 U.S.C. 3516 note) provides for 

agencies to review most disseminations 

of information to the public under 

guidelines established by each agency 

pursuant to general guidelines issued by 

OMB. OMB’s guidelines were published 

at 67 FR 8452 (February 22, 2002), and 

DOE’s guidelines were published at 67 

FR 62446 (October 7, 2002). DOE has 

reviewed this proposed rule under OMB 

and DOE guidelines and has concluded 

that it is consistent with applicable 

policies in those guidelines. 

J. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001) requires Federal agencies to 

prepare, and submit to OMB, a 

Statement of Energy Effects for any 

proposed significant energy action. A 

‘‘significant energy action’’ is defined as 

any action by an agency that 

promulgated or is expected to lead to 

promulgation of a final rule, and that: 

(1)(i) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; and (ii) is likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy, or 

(2) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

This proposed rule would not have a 

significant adverse effect on the supply, 

distribution, or use of energy and is 

therefore not a significant energy action. 

Accordingly, DOE has not prepared a 

Statement of Energy Effects. 

V. Public Participation—Submission of 

Comments 

DOE will accept comments, data and 

information regarding this proposed 

rule before or until October 7, 2021. 

Interested individuals are invited to 

participate in this proceeding by 

submitting data, views, or arguments 

with respect to this proposed rule using 

the method described in the ADDRESSES

section at the beginning of this proposed 

rule. To help the Department review the 

submitted comments, commenters are 

requested to reference the paragraph(s) 

to which they refer, e.g., 10 CFR 

707.7(a)(2), where possible. 

Submitting comments via https://

www.regulations.gov. The https://

www.regulations.gov web page will 

require you to provide your name and 

contact information. Your contact 

information will be viewable to DOE’s 

Office of Worker Safety and Health 

Policy staff only. Your contact 

information will not be publicly 

viewable except for your first and last 

names, organization name (if any), and 

submitter representative name (if any). 

If your comment is not processed 

properly because of technical 

difficulties, DOE will use this 

information to contact you. If DOE 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, DOE may not be 

able to consider your comment. 

However, your contact information will 

be publicly viewable if you include it in 

the comment or in any documents 

attached to your comment. Any 

information that you do not want to be 

publicly viewable should not be 

included in your comment, nor in any 

document attached to your comment. 

Persons viewing comments will see only 

first and last names, organization 

names, correspondence containing 

comments, and any documents 

submitted with the comments. 


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Do not submit to https://

www.regulations.gov information for 

which disclosure is restricted by statute, 

such as trade secrets and commercial or 

financial information (hereinafter 

referred to as Confidential Business 

Information (‘‘CBI’’)). Comments 

submitted through https://

www.regulations.gov cannot be claimed 

as CBI. Comments received through the 

website will waive any CBI claims for 

the information submitted. For 

information on submitting CBI, see the 

Confidential Business Information 

section below. 

DOE processes submissions made 

through https://www.regulations.gov 

before posting. Normally, comments 

will be posted within a few days of 

being submitted. However, if large 

volumes of comments are being 

processed simultaneously, your 

comment may not be viewable for up to 

several weeks. Please keep the comment 

tracking number that https://

www.regulations.gov provides after you 

have successfully uploaded your 

comment. 

Comments, data, and other 

information submitted to DOE 

electronically should be provided in 

PDF (preferred), Microsoft Word or 

Excel, or text (ASCII) file format. 

Provide documents that are not secured, 

written in English and free of any 

defects or viruses. Documents should 

not contain special characters or any 

form of encryption and, if possible, they 

should carry the electronic signature of 

the author. 

Campaign form letters. Please submit 

campaign form letters by the originating 

organization in batches of between 50 to 

500 form letters per PDF or as one form 

letter with a list of supporters’ names 

compiled into one or more PDFs. This 

reduces comment processing and 

posting time. 

Confidential Business Information. 

Pursuant to 10 CFR 1004.11, any person 

submitting information that he or she 

believes to be confidential and exempt 

by law from public disclosure should 

submit two well-marked copies: One 

copy of the document marked 

‘‘confidential’’ including all the 

information believed to be confidential, 

and one copy of the document marked 

‘‘non-confidential’’ with the information 

believed to be confidential deleted. 

Submit these documents via email to 

moriah.ferullo@hq.doe.gov. DOE will 

make its own determination about the 

confidential status of the information 

and treat it according to its 

determination. 

It is DOE’s policy that all comments 

may be included in the public docket 

without change and as received, 

including any personal information 

provided in the comments (except 

information deemed to be exempt from 

public disclosure). 

DOE considers public participation to 

be a very important part of the process 

for developing its regulations. DOE 

actively encourages the participation 

and interaction of the public during the 

comment period in each stage of this 

process. Interactions with and between 

members of the public provide a 

balanced discussion of the issues and 

assist DOE in the rulemaking process. 

VI. Approval by the Office of the 

Secretary of Energy 

The Secretary of Energy has approved 

publication of this notice of proposed 

rulemaking. 

List of Subjects in 10 CFR Part 707 

Classified information, Drug testing, 

Employee assistance programs, Energy, 

Government contracts, Health and 

safety, National security, Reasonable 

suspicion, Special nuclear material, 

Substance abuse. 

Signing Authority 

This document of the Department of 

Energy was signed on July 20, 2021, by 

Jennifer Granholm, Secretary of Energy. 

That document with the original 

signature and date is maintained by 

DOE. For administrative purposes only, 

and in compliance with requirements of 

the Office of the Federal Register, the 

undersigned DOE Federal Register 

Liaison Officer has been authorized to 

sign and submit the document in 

electronic format for publication, as an 

official document of the Department of 

Energy. This administrative process in 

no way alters the legal effect of this 

document upon publication in the 

Federal Register. 

Signed in Washington, DC, on September 

1, 2021. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

For the reasons set out in the 

preamble, DOE proposes to amend part 

707 of Chapter III of Title 10 of the Code 

of Federal Regulations as set forth 

below: 

PART 707—WORKPLACE 

SUBSTANCE ABUSE PROGRAMS AT 

DOE SITES 

■ 1. The authority citation for part 707 

is revised to read as follows: 

Authority: 41 U.S.C. 8102 et seq.; 42 U.S.C. 

2012, 2013, 2051, 2061, 2165, 2201b, 2201i, 

and 2201p; 42 U.S.C. 5814 and 5815; 42 

U.S.C. 7151, 7251, 7254, and 7256; 50 U.S.C. 

2401 et seq. 

■ 2. Section 707.7 is amended by: 

■ a. Revising paragraph (a)(2); 

■ b. Revising paragraphs (b)(2)(iii) 

through (v); and 

■ c. Adding paragraph (b)(2)(vi). 

The revisions and addition read as 

follows: 

§ 707.7 Random drug testing requirements 

and identification of testing designated 

positions. 

(a) * * * 

(2) Programs developed under this 

part for positions identified in 

paragraphs (b)(2) and (b)(3) 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. Employees in the positions 

identified in paragraphs (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 

paragraphs (b)(1) and (c) of this section 

may be subject to additional drug tests. 

(b) * * * 

(2) * * * 

(iii) Protective force personnel, 

exclusive of those covered in paragraph 

(b)(1) and (c) of this section, in positions 

involving use of firearms where the 

duties also require potential contact 

with, or proximity to, the public at 

large; 

(iv) Personnel directly engaged in 

construction, maintenance, or operation 

of nuclear reactors; 

(v) Personnel directly engaged in 

production, use, storage, transportation, 

or disposal of hazardous materials 

sufficient to cause significant harm to 

the environment or public health and 

safety; or 

(vi) All other personnel in positions 

that require an access authorization 

(security clearance), other than those 

identified in paragraphs (b)(1) and (c) of 

this section. 

* * * * * 

■ 3. Section 707.14 is amended by 

revising paragraph (e) to read as follows: 

§ 707.14 Action pursuant to a 

determination of illegal drug use. 

* * * * * 

(e) If a DOE access authorization is 

involved, DOE must be notified of a 

contractor’s intent to return to a testing 

designated position an employee 

removed from such duty for use of 

illegal drugs. Positions identified in 

§ 707.7(b)(1) of this part will require 

DOE approval prior to return to a testing 

designated position. 

* * * * * 

[FR Doc. 2021–19231 Filed 9–3–21; 8:45 am] 

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