Proposed Rule2022-18719
Worker Safety and Health Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 2, 2022
Issuing agencies
Energy Department
Abstract
The U.S. Department of Energy (DOE or the Department) is proposing to amend its current worker safety and health program regulation. The proposed amendment would make corrections to the worker safety and health program regulation requirements related to beryllium and beryllium compounds for purposes of accuracy and consistency with DOE's Chronic Beryllium Disease Prevention Program regulation, and to clarify that DOE did not intend to adopt the 2016 American Conference of Governmental Industrial Hygienists threshold limit value for beryllium and beryllium compounds.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 170 (Friday, September 2, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 170 (Friday, September 2, 2022)]
[Proposed Rules]
[Pages 54178-54183]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-18719]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
10 CFR Part 851
[EHSS-RM-20-WSHP]
RIN 1992-AA61
Worker Safety and Health Program
AGENCY: Office of Environment, Health, Safety and Security, U.S.
Department of Energy.
ACTION: Notice of proposed rulemaking and request for public comment.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Energy (DOE or the Department) is
proposing to amend its current worker safety and health program
regulation. The proposed amendment would make corrections to the worker
safety and health program regulation requirements related to beryllium
and beryllium compounds for purposes of accuracy and consistency with
DOE's Chronic Beryllium Disease Prevention Program regulation, and to
clarify that DOE did not intend to adopt the 2016 American Conference
of Governmental Industrial Hygienists threshold limit value for
beryllium and beryllium compounds.
DATES: Written comments on this proposed rulemaking must be received by
the Department on or before October 3, 2022. Please refer to section IV
(Public Participation--Submission of Comments) for additional
information on the comment period.
ADDRESSES: You may submit comments identified by docket number EHSS-RM-
20-WSHP and/or Regulation Identification Number (RIN) 1992-AA61, in one
of two ways (please choose only one of the ways listed):
1. Federal e-Rulemaking Portal: <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the
instructions in the portal for submitting comments.
2. Email: <a href="/cdn-cgi/l/email-protection#6e3c1b020b030f0507000940565b5f2e061f400a010b40090118"><span class="__cf_email__" data-cfemail="1644637a737b777d7f7871382e2327567e673872797338717960">[email protected]</span></a>. Include docket number EHSS-RM-
20-WSHP and/or RIN 1992-AA61 in the subject line of the email. Please
include the full body of your comments in the text of the message or as
an attachment. For detailed instructions on submitting comments and
additional information on the rulemaking process, see section IV of
this document.
Docket: The docket, which includes Federal Register notices,
comments, and other supporting documents/materials, is available for
review at <a href="http://www.regulations.gov">www.regulations.gov</a>. All documents in the docket are listed
in the <a href="http://www.regulations.gov">www.regulations.gov</a> 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: <a href="http://www.energy.gov/ehss/worker-safety-and-health-program-10-cfr-851doe-o-4401b">www.energy.gov/ehss/worker-safety-and-health-program-10-cfr-851doe-o-4401b</a>. This web page contains a link to the
docket for this notice on the <a href="http://www.regulations.gov">www.regulations.gov</a> site. The
<a href="http://www.regulations.gov">www.regulations.gov</a> web page contains instructions on how to access all
documents, including public comments, in the docket. See section IV of
this document for further information on how to submit comments through
<a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Mr. James Dillard, U.S. Department of
Energy, Office of Environment, Health, Safety and Security, Mailstop
EHSS-11, 1000 Independence Ave. SW, Washington, DC 20585, Telephone:
301-903-1165, or by Email at: <a href="/cdn-cgi/l/email-protection#4e242f232b3d602a2722222f3c2a0e263f602a212b60292138"><span class="__cf_email__" data-cfemail="1e747f737b6d307a7772727f6c7a5e766f307a717b30797168">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: DOE incorporates by reference into part 851
the following publication:
American Conference of Governmental Industrial Hygienists
(ACGIH[supreg]), Threshold Limit Values for Chemical Substances and
Physical Agents and Biological Exposure Indices (2016), excluding
beryllium and beryllium compounds.
A copy of this publication can be obtained from: ACGIH[supreg],
1330 Kemper Meadow Drive, Cincinnati, OH 45240; telephone number 513-
742-2020; or go to: <a href="http://www.acgih.org">http://www.acgih.org</a>.
For a further discussion of this publication, see section III.M of
this document.
Table of Contents
I. Authority and Background
A. Authority
B. Background
II. Discussion
III. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act of 1995
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 12988
F. Review Under Executive Order 13132
G. Review Under Executive Order 13175
H. Review Under the Unfunded Mandates Reform Act of 1995
I. Review Under Executive Order 12630
J. Review Under Executive Order 13211
K. Review Under the Treasury and General Government
Appropriations Act, 1999
L. Review Under the Treasury and General Government
Appropriations Act, 2001
M. Materials Incorporated by Reference
IV. Public Participation--Submission of Comments
V. Approval by the Office of the Secretary of Energy
I. Authority and Background
A. Authority
DOE has broad authority to regulate worker safety and health with
respect to its nuclear and nonnuclear functions pursuant to the Atomic
Energy Act of 1954 (AEA), 42 U.S.C. 2011 et seq.; the Energy
Reorganization Act of 1974 (ERA), 42 U.S.C. 5801 et seq.; and the
Department of Energy Organization Act (DOEOA), 42 U.S.C. 7101 et seq.
Specifically, the AEA authorized and directed the Atomic Energy
Commission (AEC) to protect health and promote safety during the
performance of activities under the AEA. (See Sec. 31a.(5) of the AEA,
42 U.S.C. 2051(a)(5); Sec. 161b. of the AEA, 42 U.S.C. 2201(b); Sec.
161i.(3) of the AEA, 42 U.S.C. 2201(i)(3); and Sec. 161p. of the AEA,
42 U.S.C. 2201(p)). In addition, Congress amended the AEA in 2002 by
adding section 234C, 42 U.S.C. 2282c, which, among other things,
directed DOE to ``promulgate regulations for industrial and
construction health and safety at Department of Energy facilities that
are operated by contractors covered by agreements of indemnification
under section 2210(d) of'' title 42 of the United States Code. In 1974,
the ERA abolished the AEC and replaced it with the Nuclear Regulatory
Commission (NRC), which became responsible for the licensing of
commercial nuclear activities, and the Energy Research and Development
Administration (ERDA),
[[Page 54179]]
which became responsible for the other functions of the AEC under the
AEA, as well as several nonnuclear functions. The ERA authorized ERDA
to use the regulatory authority under the AEA to carry out its nuclear
and nonnuclear functions, including those functions that might become
vested in ERDA in the future. (See Sec. 105(a) of the ERA, 42 U.S.C.
5815(a); and Sec. 107 of the ERA, 42 U.S.C. 5817.) In 1977, the DOEOA
transferred the functions and authorities of ERDA to DOE. (See Sec.
301(a) of the DOEOA, 42 U.S.C. 7151(a); Sec. 641 of the DOEOA, 42
U.S.C. 7251; and Sec. 644 of the DOEOA, 42 U.S.C. 7254).
B. Background
On February 9, 2006, when DOE promulgated 10 CFR part 851, Worker
Safety and Health Program (71 FR 6858), it adopted several industry
standards and guidelines to establish the baseline industrial and
construction safety and health requirements for DOE workplace
operations. The standards and guidelines with which DOE contractors
performing work on DOE sites were required to comply included certain
Occupational Safety and Health Administration (OSHA) regulations and
threshold limit values (TLVs[supreg]) published by the ACGIH[supreg].
Compliance with these standards and guidelines were already required by
DOE Order 440.1A, Worker Protection Management for DOE Federal and
Contractor Employees, which established a comprehensive worker
protection program that provided the basic framework necessary for
contractors to ensure the safety and health of their workforce. Title
10 CFR 851.23(a) requires DOE contractors to comply with 10 CFR part
850, Chronic Beryllium Disease Prevention Program, and certain OSHA
regulations at 29 CFR parts 1910, 1915, and 1926, among others. In
2015, DOE amended 10 CFR part 851 and added Sec. 851.2(d) to clarify
DOE's intent to adopt only OSHA's permissible exposure limit for
beryllium found in 29 CFR 1910.1000, and that the ancillary provisions
(e.g., exposure assessment, personal protective clothing and equipment,
medical surveillance, medical removal, training, and regulated areas or
access control) of OSHA's standard do not apply to DOE and DOE
contractors and their employees (80 FR 69564, November 10, 2015).
On January 9, 2017, OSHA promulgated new regulations in 29 CFR
parts 1910, 1915, and 1926 for the protection of workers from the
effects of beryllium and beryllium compounds in the workplace (82 FR
2470). These new provisions had the potential to conflict with or
overlap DOE's beryllium safety and health requirements in 10 CFR part
850.
On December 18, 2017 (82 FR 59947), DOE issued a technical
amendment to 10 CFR part 851 that replaced the existing references to
safety and health standards and guidelines with the latest versions of
the standards and guidelines. In the December 2017 amendment, DOE
updated the safety and health standards and guidelines that were
incorporated by reference in 10 CFR part 851, including the
ACGIH[supreg] TLVs[supreg] in the ``Threshold Limit Values for Chemical
Substances and Physical Agents and Biological Exposure Indices''
(2016). The TLVs[supreg] included those for beryllium and beryllium
compounds.
In this proposed rule, DOE is proposing to make corrections to 10
CFR part 851 with respect to the requirements for beryllium and
beryllium compounds that would: (1) ensure accuracy and consistency
with 10 CFR part 850, Chronic Beryllium Disease Prevention Program; (2)
clarify that in adopting certain OSHA regulations and ACGIH[supreg]
TLVs[supreg] in 10 CFR part 851, DOE did not intend to adopt OSHA's
ancillary beryllium safety requirements and ACGIH[supreg] values for
beryllium and beryllium compounds; and (3) clarify in Sec. 851.2(d)
that 10 CFR part 851 does not require compliance by DOE contractors
with any OSHA requirements for beryllium or beryllium compounds except
as provided in 10 CFR part 850. DOE believes these corrections are
necessary to avoid potential conflicts with DOE's beryllium safety and
health requirements in 10 CFR part 850 and to avoid potential confusion
among DOE contractors as to the requirements with which they must
comply at DOE sites.
This proposed rule would also make minor corrections to clarify the
meaning of Sec. 851.23(b) regarding contractor compliance with
additional safety and health requirements that are necessary to protect
workers at their covered workplace.
II. Discussion
Section 851.2(d) currently provides that part 851 does not require
compliance with any OSHA beryllium requirement except for any
permissible exposure limit for beryllium in 29 CFR 1910.1000. The
proposed text in Sec. 851.2(d) would modify the current language by
instead referring to DOE's beryllium rule and stating that part 851
does not require compliance with any OSHA requirements for beryllium
and beryllium compounds except as provided in 10 CFR part 850, Chronic
Beryllium Disease Prevention Program. DOE notes that 10 CFR 850.22,
Permissible exposure limit, states that the responsible employer must
assure that no worker is exposed to an airborne concentration of
beryllium greater than the permissible exposure limit established in 29
CFR 1910.1000, as measured in the worker's breathing zone by personal
monitoring, or a more stringent time weighted average permissible
exposure limit that may be promulgated by OSHA as a health standard.
The proposed change to Sec. 851.2(d) would ensure consistency between
the language in 10 CFR parts 850 and 851 with respect to beryllium and
beryllium compounds.
Section 851.23(a) currently requires contractors to comply with
safety and health standards and guidelines that are applicable to the
hazards at their covered workplace, including those identified at
paragraphs (a)(3), (a)(4), and (a)(7) of that section. DOE's proposed
changes in Sec. 851.23(a) would clarify that while DOE currently
adopts OSHA's permissible exposure limit for beryllium, it is not DOE's
intention to adopt OSHA's remaining beryllium requirements in 29 CFR
parts 1910, 1915, and 1926.
The current language in Sec. 851.23(a)(3) refers to 29 CFR part
1910, Occupational Safety and Health Standards, excluding 29 CFR
1910.1096, Ionizing Radiation, and 29 CFR 1910.1000, Beryllium. The
proposed language in Sec. 851.23(a)(3) would correct the reference to
OSHA's regulations and refer instead to 29 CFR part 1910, Occupational
Safety and Health Standards, excluding 29 CFR 1910.1096, Ionizing
Radiation; 29 CFR 1910.1000, Air Contaminants, Tables Z-1 and Z-2, as
they relate to beryllium and beryllium compounds; and 29 CFR 1910.1024,
Beryllium.
The current language in Sec. 851.23(a)(4) refers to 29 CFR part
1915, Shipyard Employment. The proposed language in Sec. 851.23(a)(4)
would refer instead to 29 CFR part 1915, Occupational Safety and Health
Standards for Shipyard Employment, except for 29 CFR 1915.1024,
Beryllium. In addition, the current language in Sec. 851.23(a)(7)
refers to 29 CFR part 1926, Safety and Health Regulations for
Construction. The proposed language in Sec. 851.23(a)(7) would refer
instead to 29 CFR part 1926, Safety and Health Regulations for
Construction, except for 29 CFR 1926.1124, Beryllium.
In 2017, DOE adopted and incorporated by reference the
ACGIH[supreg] Threshold Limit Values for Chemical Substances and
Physical Agents and Biological Exposure Indices, (2016), but
[[Page 54180]]
did not intend to adopt the ACGIH[supreg] TLV[supreg] for beryllium and
beryllium compounds. This proposed rule would amend Sec. 851.23(a)(9)
to exclude the ACGIH[supreg] TLV[supreg] for beryllium and beryllium
compounds. In addition, Sec. 851.23(a)(9) currently only refers to two
of OSHA's health standards for beryllium and beryllium compounds, 29
CFR part 1910 (general industry) and 29 CFR part 1926 (construction).
The proposed language in Sec. 851.23(a)(9) would also include
references to 29 CFR part 1915, the OSHA standard for shipyards.
In this proposed rule, DOE is also proposing minor editorial
changes that would clarify the Department's intent with respect to
Sec. 851.23(b). Currently, Sec. 851.23(b) states that nothing in this
part must be construed as relieving a contractor from complying with
any additional specific safety and health requirement that it
determines to be necessary to protect the safety and health of workers.
The proposed amendment to Sec. 851.23(b) would state that nothing in
this part relieves contractors from the responsibility to comply with
any additional safety and health requirements that are necessary to
protect the safety and health of workers.
In addition to the proposed amendment to Sec. 851.23(a)(9) to
exclude the ACGIH[supreg] TLV[supreg] for beryllium and beryllium
compounds, this proposed rule would also clarify DOE's intent in Sec.
851.27(b)(1) that the incorporation by reference of ACGIH[supreg],
Threshold Limit Values for Chemical Substances and Physical Agents and
Biological Exposure Indices, 2016, excludes beryllium and beryllium
compounds.
III. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
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).
B. 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 rule, if
promulgated, will not have a significant economic impact on a
substantial number of small entities (5 U.S.C. 605(b)). As required by
Executive Order 13272, Proper Consideration of Small Entities in Agency
Rulemaking, 67 FR 53461 (Aug. 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 website
(<a href="https://energy.gov/gc/office-general-counsel">https://energy.gov/gc/office-general-counsel</a>).
DOE reviewed this proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. DOE certifies that the proposed rule, if adopted,
would not have significant economic impact on a substantial number of
small entities. The factual basis for this certification is set forth
below.
This proposed rule would update DOE's worker safety and health
program regulation and clarify DOE's ongoing intent to exempt DOE
contractors from specified OSHA regulations and the ACGIH[supreg]
TLV[supreg] pertaining to beryllium and beryllium compounds. This
proposed rule would apply only to activities conducted by DOE's
contractors who would be responsible for implementing the rule
requirements. DOE expects that any potential economic impact of this
proposed rule on small businesses would be minimal because work
performed at DOE sites is under contracts with DOE or the prime
contractor at the site. DOE contractors are reimbursed through their
contracts for the costs of complying with worker safety and health
program requirements. Therefore, they would not 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 has been prepared.
C. Review Under the Paperwork Reduction Act of 1995
This proposed rule does not impose a collection of information
requirement subject to review and approval by OMB under the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.).
D. Review Under the National Environmental Policy Act of 1969
Pursuant to the National Environmental Policy Act of 1969 (NEPA),
DOE has analyzed this proposed action in accordance with NEPA and DOE's
NEPA implementing regulations (10 CFR part 1021). DOE's regulations
include a categorical exclusion (CX) for rulemakings interpreting or
amending an existing rule or regulation that does not change the
environmental effect of the rule or regulation being amended. 10 CFR
part 1021, subpart D, appendix A5. DOE has determined that this
proposed rule is covered under the CX found in DOE's NEPA regulations
at paragraph A.5 of appendix A to subpart D, 10 CFR part 1021, because
it is an amendment to an existing regulation that does not change the
environmental effect of the amended regulation and, therefore, meets
the requirements for the application of this CX. See 10 CFR 1021.410.
Therefore, DOE has determined that this proposed rule is not a major
Federal action significantly affecting the quality of the human
environment within the meaning of NEPA and does not require an
Environmental Assessment or an Environmental Impact Statement.
E. 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
Federal agencies the general duty to adhere to the following
requirements: (1) eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; (3) provide a clear legal standard
for affected conduct rather than a general standard; and (4) promote
simplification and burden reduction. 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; (6) specifies whether administrative proceedings are
to be required before parties may file suit in court and, if so,
describes those proceedings and requires the exhaustion of
administrative remedies; and (7) 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
[[Page 54181]]
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.
F. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 10,
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. The Executive Order also requires
agencies to have an accountable process to ensure meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications. On March 14, 2000, DOE
published a statement of policy describing the intergovernmental
consultation process it will follow in the development of such
regulations. 65 FR 13735. DOE has examined this proposed rule and has
tentatively 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.
G. Review Under Executive Order 13175
Under Executive Order 13175 (65 FR 67249, November 9, 2000) on
``Consultation and Coordination with Indian Tribal Governments,'' DOE
may not issue a discretionary rule that has ``Tribal'' implications and
imposes substantial direct compliance costs on Indian Tribal
governments. DOE has determined that the proposed rule would not have
such effects and concluded that Executive Order 13175 does not apply to
this proposed rule.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub.
L. 104-4) requires each Federal agency to assess the effects of a
Federal regulatory action on State, local, and Tribal governments, and
the private sector. (Pub. L. 104-4, sec. 201 et seq. (codified at 2
U.S.C. 1531 et seq.)). For a proposed regulatory action likely to
result in a rule that may cause 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 (adjusted annually for inflation),
section 202 of UMRA requires a Federal agency to publish a written
statement that estimates the resulting costs, benefits, and other
effects on the national economy. (2 U.S.C. 1532(a), (b)). UMRA also
requires a Federal agency to develop an effective process to permit
timely input by elected officers of State, local, and Tribal
governments on a proposed ``significant Federal intergovernmental
mandate,'' and requires an agency plan for giving notice and
opportunity for timely input to potentially affected small governments
before establishing any requirements that might significantly or
uniquely affect them. On March 18, 1997, DOE published a statement of
policy on its process for intergovernmental consultation under UMRA.
(62 FR 12820) (This policy is also available at: <a href="https://www.energy.gov/gc/guidance-opinions">https://www.energy.gov/gc/guidance-opinions</a> under ``Guidance & Opinions''
(Rulemaking)). DOE examined the proposed rule according to UMRA and its
statement of policy and has determined that the rule contains neither
an intergovernmental mandate, nor a mandate that may 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 year.
Accordingly, no further assessment or analysis is required under UMRA.
I. Review Under Executive Order 12630
DOE has determined, under Executive Order 12630, ``Governmental
Actions and Interference with Constitutionally Protected Property
Rights'' 53 FR 8859 (March 18, 1988), that this proposed regulation
would not result in any takings that might require compensation under
the Fifth Amendment to the U.S. Constitution.
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 the
OIRA, which is part of 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 promulgates 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 regulatory action is not a significant energy action.
Accordingly, DOE has not prepared a Statement of Energy Effects.
K. 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 proposed rule that may affect family
well-being (5 U.S.C. 601, note). 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.
L. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for Federal 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). Pursuant to OMB Memorandum M-19-15, Improving Implementation
of the Information Quality Act (April 24, 2019), DOE published updated
guidelines which are available at: <a href="http://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf">www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf</a>.
DOE has reviewed this proposed rule under the OMB and DOE
guidelines and has concluded that it is consistent with applicable
policies in those guidelines.
M. Materials Incorporated by Reference
DOE is proposing to restrict the TLVs[supreg] for chemical
substances and physical agents and biological exposure indices
(BEIs[supreg]) published by the ACGIH[supreg] titled Threshold Limit
Values for Chemical Substances and Physical Agents and Biological
Exposure Indices, (2016), the currently-approved for
[[Page 54182]]
incorporation by reference, by excluding beryllium and beryllium
compounds. The TLVs[supreg] and BEIs[supreg] are guidelines that are
intended for use by industrial hygienists in making decisions regarding
safe levels of exposure to various chemical and physical agents found
in the workplace. Each year ACGIH[supreg] publishes its TLVs[supreg]
and BEIs[supreg]. Copies of the ACGIH[supreg] TLVs[supreg] and
BEIs[supreg] are available on ACGIH[supreg]'s website at:
<a href="http://www.acgih.org">www.acgih.org</a>.
IV. Public Participation--Submission of Comments
DOE will accept comments, data and information regarding this
proposed rule before or no later than the date provided in the DATES
section at the beginning of this proposed rule. 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), e.g., Sec. 851.2(d), to
which they refer where possible.
1. Submitting comments to <a href="http://www.regulations.gov">www.regulations.gov</a>. The
<a href="http://www.regulations.gov">www.regulations.gov</a> web page will require you to provide your name and
contact information. Your contact information will be viewable by 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 cannot be 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. Your contact information will be publicly viewable if you
include it in the comment itself 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.
Do not submit to <a href="http://www.regulations.gov">www.regulations.gov</a> 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
<a href="http://www.regulations.gov">www.regulations.gov</a> cannot be claimed as CBI. Comments received through
<a href="http://www.regulations.gov">www.regulations.gov</a> will waive any CBI claims for the information
submitted. For information on submitting CBI, see the Confidential
Business Information section.
DOE processes submissions made through <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>
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, WordPerfect, or text (ASCII) file format. Provide documents that
are not secured, that are written in English, and that are 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.
2. Submitting comments via email. Comments and documents submitted
via email also will be posted to <a href="http://www.regulations.gov">www.regulations.gov</a>. If you do not
want your personal contact information to be publicly viewable, do not
include it in your comment or any accompanying documents. Instead,
provide your contact information in a cover letter. Include your first
and last names, email address, telephone number, and optional mailing
address. The cover letter will not be publicly viewable as long as it
does not include any comments. Include contact information each time
you submit comments, data, documents, and other information to DOE.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel file format. Provide documents that are not secured, that are
written in English, and that are 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.
3. Confidential Business Information. Pursuant to the provisions of
10 CFR 1004.11, anyone submitting information or data 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. DOE will make its own determination as to the
confidentiality 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).
4. 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.
V. 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 851
Civil penalty, Incorporation by reference, Occupational safety and
health, Reporting and recordkeeping requirements, Safety.
Signing Authority
This document of the Department of Energy was signed on August 20,
2022, 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 August 25, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set forth in the preamble, the Department of Energy
proposes to amend part 851 of chapter III of title 10 of the Code of
Federal Regulations as set forth below:
[[Page 54183]]
PART 851--WORKER SAFETY AND HEALTH PROGRAM
0
1. The authority citation for part 851 continues to read as follows:
Authority: 42 U.S.C. 2201(i)(3), (p); 42 U.S.C. 2282c; 42
U.S.C. 5801 et seq.; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.;
28 U.S.C. 2461 note.
0
2. Amend Sec. 851.2 by revising paragraph (d) to read as follows:
Sec. 851.2 Exclusions.
* * * * *
(d) This part does not require compliance with any Occupational
Safety and Health Administration requirements for beryllium or
beryllium compounds except as provided in 10 CFR part 850, ``Chronic
Beryllium Disease Prevention Program.''
* * * * *
0
3. Amend Sec. 851.23 by revising paragraphs (a)(3), (4), (7), (9) and
(b) to read as follows:
Sec. 851.23 Safety and health standards.
(a) * * *
(3) Title 29 CFR, Part 1910, ``Occupational Safety and Health
Standards,'' excluding 29 CFR 1910.1096, ``Ionizing Radiation''; 29 CFR
1910.1000, ``Air Contaminants,'' Tables Z-1 and Z-2, as they relate to
beryllium and beryllium compounds; and 29 CFR 1910.1024, ``Beryllium.''
(4) Title 29 CFR, Part 1915, ``Occupational Safety and Health
Standards for Shipyard Employment,'' except for 29 CFR 1915.1024,
``Beryllium.''
* * * * *
(7) Title 29 CFR, Part 1926, ``Safety and Health Regulations for
Construction,'' except for 29 CFR 1926.1124, ``Beryllium.''
* * * * *
(9) American Conference of Governmental Industrial Hygienists
(ACGIH[supreg]), Threshold Limit Values for Chemical Substances and
Physical Agents and Biological Exposure Indices, (2016) (incorporated
by reference, see Sec. 851.27), excluding those for beryllium and
beryllium compounds, when the ACGIH[supreg] Threshold Limit Values
(TLVs[supreg]) are lower (more protective) than permissible exposure
limits in 29 CFR part 1910 for general industry, 29 CFR part 1915 for
shipyards, and/or 29 CFR part 1926 for construction. When the
ACGIH[supreg] TLVs[supreg] are used as exposure limits, contractors
must comply with the other provisions of any applicable expanded health
standard found in 29 CFR parts 1910, 1915, and 1926.
* * * * *
(b) Nothing in this part relieves contractors from the
responsibility to comply with any additional safety and health
requirements that are necessary to protect the safety and health of
workers.
* * * * *
0
4. Amend Sec. 851.27 by revising paragraph (a) to read as follows:
Sec. 851.27 Materials incorporated by reference.
(a) Certain material is incorporated by reference into this subpart
with the approval of the Director of the Federal Register in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other
than that specified in this section, the U.S. Department of Energy
(DOE) must publish a document in the Federal Register and the material
must be available to the public. All approved material is available for
inspection at the DOE and at the National Archives and Records
Administration (NARA). Contact DOE at the: U.S. Department of Energy,
Office of Environment, Health, Safety and Security, Office of Worker
Safety and Health Policy, 1000 Independence Ave. SW, Washington, DC
20585, (301) 903-1165. For information on the availability of this
material at NARA, email: <a href="/cdn-cgi/l/email-protection#0b6d79256265787b6e687f6264654b656a796a256c647d"><span class="__cf_email__" data-cfemail="fc9a8ed295928f8c999f88959392bc929d8e9dd29b938a">[email protected]</span></a>, or go to:
<a href="http://www.archives.gov/federal-register/cfr/ibr-locations.html">www.archives.gov/federal-register/cfr/ibr-locations.html</a>. The material
may be obtained from the sources in the following paragraphs of this
section.
* * * * *
[FR Doc. 2022-18719 Filed 9-1-22; 8:45 am]
BILLING CODE 6450-01-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on September 2, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.