[Federal Register Volume 86, Number 170 (Tuesday, September 7, 2021)]
[Proposed Rules]
[Pages 49932-49936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19231]


=======================================================================
-----------------------------------------------------------------------

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

[[Page 49933]]

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/contractor-workplace-substance-abuse-program-doe-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: [email protected].

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

[[Page 49934]]

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

[[Page 49935]]

$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 well-being. 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.

[[Page 49936]]

    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 [email protected]. 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

0
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.

0
2. Section 707.7 is amended by:
0
a. Revising paragraph (a)(2);
0
b. Revising paragraphs (b)(2)(iii) through (v); and
0
c. Adding paragraph (b)(2)(vi).
    The revisions and addition read as follows:


Sec.  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.
* * * * *
0
3. Section 707.14 is amended by revising paragraph (e) to read as 
follows:


Sec.  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 Sec.  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]
 BILLING CODE 6450-01-P