[Federal Register Volume 73, Number 15 (Wednesday, January 23, 2008)]
[Rules and Regulations]
[Pages 3861-3863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1084]



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  Federal Register / Vol. 73, No. 15 / Wednesday, January 23, 2008 / 
Rules and Regulations  

[[Page 3861]]



DEPARTMENT OF ENERGY

10 CFR Part 707

 RIN 1992-AA38


Workplace Substance Abuse Programs at DOE Sites

AGENCY: Office of Health, Safety and Security, Department of Energy.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Energy (DOE) today publishes a final rule to 
amend the Department's regulations to decrease the random drug testing 
rate of DOE contractor employees in testing designated positions (TDP). 
Today's final rule also makes minor technical changes that delete: A 
sentence pertaining to specimen collection and handling in order to 
conform the section with the current U.S. Department of Health and 
Human Services' Mandatory Guidelines for Federal Workplace Drug Testing 
Programs; and obsolete references to the Personnel Security Assurance 
Program and the Personnel Assurance Program.

EFFECTIVE DATE: This rule is effective February 22, 2008.

FOR FURTHER INFORMATION CONTACT: Ms. Jacqueline D. Rogers, U.S. 
Department of Energy, Office of Health, Safety and Security, HS-11, 
1000 Independence Avenue, SW., Washington, DC 20585; (202) 586-4714 or 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background
II. Discussion of Amendments
III. Issuance of a Final Rule
IV. Procedural Review Requirements
    A. Review Under Executive Order 12866
    B. Review Under 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
    K. Congressional Notification
V. 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 and the Drug-Free Workplace Act of 1988, DOE promulgated a rule 
on July 22, 1992, on DOE contractor workplace substance abuse programs 
(57 FR 32652). The rule established minimum requirements for DOE 
contractors to use in developing and implementing programs that deal 
with the use of illegal drugs by their employees. The rule provided for 
drug testing of contractor employees in, and applicants for, testing 
designated positions (TDP) at sites owned or controlled by DOE and 
operated under the authority of the Atomic Energy Act of 1954. 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 
entitled Workplace Substance Abuse Programs at DOE Sites.
    In consideration of the February 2007 report on the Task Force 
Review of the Departmental Personnel Security Program, the Secretary of 
Energy issued a memorandum on September 14, 2007 addressing drug 
testing for DOE positions that require access authorizations (security 
clearances) (http://www.directives.doe.gov/pdfs/reftools/Drug_Testing.pdf). The DOE Secretarial Memorandum stated the Secretary's 
determination that all Federal and contractor positions that require a 
security clearance (``Q'' and ``L'') and all positions occupied by 
individuals who currently have security clearances have the potential 
to significantly affect the environment, public health and safety, or 
national security. The Secretary determined that all applicants for, 
and employees in, such positions are considered to be in TDPs, meaning 
they are subject to applicant, random, and for cause drug testing. This 
decision regarding TDPs is being implemented in accordance with DOE 
Order 3792.3 (for Federal employees) and 10 CFR Part 707 (for DOE 
contractor employees). 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 be tested at a 30 
percent annual sample rate.

II. Discussion of Amendments

    Today's final rule amends the Department of Energy's regulations on 
workplace substance abuse programs at DOE sites to decrease the random 
drug testing rate of contractor employees in TDPs other than those in 
the 100 percent rate of testing pool. Currently, 10 CFR 707.7(a)(2) 
provides that for these TDPs, contractor programs ``shall provide for 
random tests at a rate equal to 50 percent of the total number of 
employees [in these TDPs] for each 12 month period.'' Today's final 
rule replaces ``50'' with ``30,'' consistent with the Secretary's 
decision to decrease the random drug testing rate in conjunction with 
his decision to expand the TDPs to include all applicants for, and 
employees in, positions requiring a security clearance.
    This final rule makes a minor technical amendment to update the 
specimen collection and handling provision to reflect current U.S. 
Department of Health and Human Services' (HHS) Mandatory Guidelines for 
Federal Workplace Drug Testing Programs. Contractor substance abuse 
programs are subject to the HHS Mandatory Guidelines, as well as Part 
707 (see 10 CFR 707.5(a)). Section 707.12 addresses specimen 
collection, handling, and laboratory analysis. Section 707.12(b)(2) 
requires collecting a sufficient amount of urine to conduct an initial 
test, a confirmatory test, and a retest, in accordance with the HHS 
Mandatory Guidelines. If there is not a sufficient amount, the 
collection site person may give the individual additional time in which 
to provide urine for testing. In this situation, the current regulation 
provides that the partial specimens are to be combined in

[[Page 3862]]

a single container. The sentence requiring the combining of partial 
specimens in a single container is not consistent with current HHS 
Mandatory Guidelines, and, therefore, this final rule removes the 
sentence.
    The final rule also makes a minor technical amendment to delete 
references to the Personnel Security Assurance Program and the 
Personnel Assurance Program since both of these programs were cancelled 
with the publication of 10 CFR part 712, Human Reliability Program.

III. Issuance of a Final Rule

    DOE has determined, pursuant to 5 U.S.C. 553(b)(B), that prior 
notice and an opportunity for public comment on this rule are 
unnecessary. DOE has determined that the two changes DOE is making to 
Part 707 are so minor or technical that the public would have no 
particular interest in providing comments. As explained earlier in this 
preamble, DOE is revising section 707.7(a)(2) to reduce the annual 
random drug testing sample from 50 percent to 30 percent. The change in 
the rate of testing of Federal employees in TDPs (other than employees 
in the 100 percent testing pool) already is being implemented by the 
Office of Human Resources. Today's amendment of section 707.7(a)(2) 
establishes parity in the treatment of Federal employees and contractor 
employees, and by decreasing the frequency of testing, reduces any 
burden associated with drug testing of contractor employees in these 
positions.
    As to the amendment of section 707.12(b)(2), the deletion of the 
sentence pertaining to specimen collection and handling is a technical 
change that is necessary to conform the section with the current HHS 
Mandatory Guidelines.
    Based on the foregoing, DOE finds that good cause exists to waive 
the requirement to provide prior notice and an opportunity to comment 
for this rulemaking.

IV. Procedural Review Requirements

A. Review Under Executive Order 12866

    Today's 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).

B. Review Under the National Environmental Policy Act

    DOE has determined that this final 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 a rulemaking that amends an existing rule or 
regulation which does not change the environmental effect of the rule 
or regulation being amended.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site: http://www.gc.doe.gov.
    DOE has found that based on good cause prior notice and opportunity 
for public comments are unnecessary; and, therefore, the Regulatory 
Flexibility Act does not apply to today's rule. Accordingly, DOE has 
not prepared a regulatory flexibility analysis for this rulemaking.

D. Review Under the Paperwork Reduction Act

    This 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 $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 final rule does not impose a Federal mandate on State, local 
or tribal governments. The 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 well-being. This 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 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

[[Page 3863]]

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 
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 them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
this final 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 
today's 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) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) 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. Today's 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.

K. Congressional Notification

    As required by 5 U.S.C. 801, the Department will submit to Congress 
a report regarding the issuance of today's final rule prior to the 
effective date set forth at the outset of this rule. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 801(2).

V. Approval by the Office of the Secretary of Energy

    Issuance of this rule has been approved by the Office of the 
Secretary.

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.

    Issued in Washington, DC, on January 15, 2008.
Glenn S. Podonsky,
Chief Health, Safety and Security Officer, Office of Health, Safety and 
Security.

0
For the reasons set out in the preamble, DOE amends 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

0
1. The authority citation for part 707 is revised to read as follows:

    Authority: 41 U.S.C. 701 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.


0
2. Section 707.7 is amended as follows:
0
a. Paragraph (a)(2) is amended by removing ``50'' and adding in its 
place ``30'' in the first sentence.
0
b. Paragraph (b)(1) is revised;
0
c. Paragraph (b)(2) is removed;
0
d. Paragraphs (b)(3) and (b)(4) are redesignated as (b)(2) and (b)(3).
    The revision read as follows:


Sec.  707.7  Random drug testing requirements and identification of 
testing designated positions.

* * * * *
    (b) * * *
    (1) Positions determined to be covered by the Human Reliability 
Program (HRP), codified at 10 CFR part 712. HRP employees will be 
subject to the drug testing standards of this part and any additional 
requirements of the HRP rule.
* * * * *


Sec.  707.12  [Amended]

0
3. In Sec.  707.12, paragraph (b)(2) is amended by removing the fifth 
sentence.

[FR Doc. E8-1084 Filed 1-22-08; 8:45 am]
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