Proposed Rule2023-18082
Chronic Beryllium Disease Prevention 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
August 23, 2023
Issuing agencies
Energy Department
Abstract
On June 7, 2016, the U.S. Department of Energy (DOE or the Department) published a Notice of Proposed Rulemaking (NOPR) in the Federal Register proposing to amend its current Chronic Beryllium Disease Prevention Program (CBDPP) regulations. In the NOPR, DOE proposed an action level of 0.05 micrograms of beryllium per cubic meter of air ([mu]g/m\3\), calculated as an 8-hour time-weighted average (TWA), but declined to propose a short-term exposure limit (STEL). In this supplemental notice of proposed rulemaking (SNOPR), DOE solicits comments on an alternative proposed action level of 0.1 [mu]g/ m\3\, calculated as an 8-hour TWA exposure, and a STEL of 2.0 [mu]g/ m\3\ measured over a period of fifteen minutes. DOE is also proposing to set its own TWA permissible exposure limit (PEL) for airborne beryllium, which is consistent with the TWA PEL currently set by the Occupational Safety and Health Administration (OSHA), rather than adopt OSHA's current or any future 8-hour TWA PEL. The proposed amendments are intended to improve and strengthen the current CBDPP regulations and are applicable to DOE contractors and Federal employees who are, were, or potentially were exposed to beryllium at DOE sites.
Full Text
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[Federal Register Volume 88, Number 162 (Wednesday, August 23, 2023)]
[Proposed Rules]
[Pages 57365-57370]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-18082]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 162 / Wednesday, August 23, 2023 /
Proposed Rules
[[Page 57365]]
DEPARTMENT OF ENERGY
10 CFR Part 850
[EHSS-RM-11-CBDPP]
RIN 1992-AA39
Chronic Beryllium Disease Prevention Program
AGENCY: Office of Environment, Health, Safety and Security, U.S.
Department of Energy.
ACTION: Supplemental notice of proposed rulemaking and request for
comment.
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SUMMARY: On June 7, 2016, the U.S. Department of Energy (DOE or the
Department) published a Notice of Proposed Rulemaking (NOPR) in the
Federal Register proposing to amend its current Chronic Beryllium
Disease Prevention Program (CBDPP) regulations. In the NOPR, DOE
proposed an action level of 0.05 micrograms of beryllium per cubic
meter of air ([mu]g/m\3\), calculated as an 8-hour time-weighted
average (TWA), but declined to propose a short-term exposure limit
(STEL). In this supplemental notice of proposed rulemaking (SNOPR), DOE
solicits comments on an alternative proposed action level of 0.1 [mu]g/
m\3\, calculated as an 8-hour TWA exposure, and a STEL of 2.0 [mu]g/
m\3\ measured over a period of fifteen minutes. DOE is also proposing
to set its own TWA permissible exposure limit (PEL) for airborne
beryllium, which is consistent with the TWA PEL currently set by the
Occupational Safety and Health Administration (OSHA), rather than adopt
OSHA's current or any future 8-hour TWA PEL. The proposed amendments
are intended to improve and strengthen the current CBDPP regulations
and are applicable to DOE contractors and Federal employees who are,
were, or potentially were exposed to beryllium at DOE sites.
DATES: DOE will accept comments, data, and information regarding this
SNOPR on or before September 22, 2023. Please refer to section V
(Public Participation-Submission of Comments) of this SNOPR for
additional information.
ADDRESSES: You may send comments, identified by EHSS-RM-11-CBDPP and/or
Regulation Identification Number (RIN) 1992-AA39, by any of the
following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow
the instructions in the portal for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#257750494048444e4c4b420b1d1015654d540b414a400b424a53"><span class="__cf_email__" data-cfemail="0351766f666e62686a6d642d3b3633436b722d676c662d646c75">[email protected]</span></a>. Include docket number
EHSS-RM-11-CBDPP and/or RIN 1992-AA39 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.
<bullet> Mail: Address written comments to James Dillard, U.S.
Department of Energy, Office of Environment, Health, Safety and
Security, Mailstop EHSS-11, Docket Number EHSS-RM-11-CBDPP, 1000
Independence Ave. SW, Washington, DC 20585 (due to potential delays in
DOE's receipt and processing of mail sent through the U.S. Postal
Service, we encourage respondents to submit comments electronically to
ensure timely receipt).
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the ``Public
Participation--Submission of Comments'' (section V) of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket, which includes Federal Register
notices, comments, and other supporting documents/materials, go to
<a href="http://www.regulations.gov/docket/DOE-HQ-2016-0024">www.regulations.gov/docket/DOE-HQ-2016-0024</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.
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. Email: <a href="/cdn-cgi/l/email-protection#5238333f37217c363b3e3e332036123a237c363d377c353d24"><span class="__cf_email__" data-cfemail="cca6ada1a9bfe2a8a5a0a0adbea88ca4bde2a8a3a9e2aba3ba">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Authority
II. Background and Summary of the Supplemental Notice of Proposed
Rulemaking
III. Discussion of Specific Proposed Sections
A. Proposed Sec. 850.22--Permissible Exposure Limits
B. Proposed Sec. 850.23--Action Level
C. Proposed Conforming Amendments to Sec. Sec. 850.11 and
850.25
IV. Regulatory Review
A. Review Under Executive Orders 12866, 13563, and 14094
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
V. Public Participation--Submission of Comments
VI. Approval by the Office of the Secretary of Energy
I. 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), a predecessor agency to DOE, 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. 161 b. of the AEA,
42 U.S.C. 2201(b); Sec. 161 i.(3) of the AEA, 42 U.S.C. 2201(i)(3); and
Sec. 161 p. 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.
The ERA abolished the AEC and replaced it with the Nuclear
Regulatory Commission (NRC), which became responsible for the licensing
of
[[Page 57366]]
commercial nuclear activities, and the Energy Research and Development
Administration (ERDA), 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. The DOEOA transferred the functions and authorities of
ERDA to DOE. See Sec. 301(a) of DOEOA, 42 U.S.C. 7151(a); Sec. 641 of
DOEOA, 42 U.S.C. 7251; and Sec. 644 of DOEOA, 42 U.S.C. 7254.
Additional authority for the rule, insofar as it applies to DOE
Federal employees, is found in section 19 of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 668) and Executive Order 12196,
``Occupational Safety and Health Programs for Federal Employees'' (5
U.S.C. 7902 note), which require Federal agencies to establish
comprehensive occupational safety and health programs for their
employees.
II. Background and Summary of the Supplemental Notice of Proposed
Rulemaking
On December 8, 1999, DOE published its final rule establishing the
CBDPP (64 FR 68854), which became effective January 7, 2000. In the
CBDPP, DOE adopted, among other things, OSHA's PEL in 29 CFR 1910.1000,
which was 2.0 [mu]g/m\3\ measured as an 8-hour TWA, and any more
stringent TWA PEL that may be promulgated by OSHA as a health standard
in the future. The AEC first applied the 2.0 [mu]g/m\3\ TWA PEL in 1949
and it had been continuously applied by DOE and its predecessor
agencies through the years. Additionally, DOE set an ``action level''
for worker exposure to airborne concentrations of beryllium at 0.2
[mu]g/m\3\, calculated as an 8-hour TWA exposure. The ``action level''
is the level of airborne concentrations of beryllium which, if met or
exceeded, would require a DOE office or contractor to implement certain
worker protection provisions. Since the rule's January 7, 2000,
effective date, DOE facilities have been expected to maintain worker
exposures to beryllium at levels at or below OSHA's PEL, as well as
operate with an action level.
Other than OSHA's PEL, DOE employers are not subject to any other
OSHA beryllium-specific requirements in 29 CFR 1910.1024. Section
4(b)(1) of the Occupational Safety and Health Act of 1970 [29 U.S.C.
653(b)(1)] (OSH Act) states that ``[n]othing in [the OSH Act] shall
apply to working conditions of employees with respect to which other
Federal agencies . . . exercise statutory authority to prescribe or
enforce standards or regulations affecting occupational safety or
health.''
To avoid confusion among its contractors and their employees
regarding with which standard to comply, the Department amended 10 CFR
part 851, Worker Safety and Health Program (80 FR 69564, November 10,
2015). The amendment clarified that it is DOE's intent to only adopt
OSHA's 8-hour PEL for beryllium, 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
contractor employees.
On June 7, 2016, DOE published a NOPR for public comment in the
Federal Register (81 FR 36704) proposing to amend its CBDPP
regulations. The public comment period ended on September 6, 2016. The
proposed amendments included in the NOPR were intended to strengthen
the current CBDPP and the worker protection programs established under
10 CFR part 851, Worker Safety and Health Program. In part, the
proposed amendments in the NOPR would have reduced the action level for
worker exposure to airborne concentrations of beryllium to 0.05 [mu]g/
m\3\, calculated as an 8-hour TWA exposure. In the NOPR, DOE also
proposed to adopt OSHA's current and any future PELs for worker
exposure to beryllium and beryllium compounds. DOE did not propose
adopting a STEL because DOE's proposed action level of 0.05 [mu]g/m\3\
would be exceeded in less than the 15-minute sampling period for the
STEL where exposure levels were at OSHA's PEL of 2.0 [micro]g/m\3\.
After publication of DOE's NOPR, OSHA promulgated new regulations
in 29 CFR parts 1910, 1915 and 1926 for the protection of workers from
the effects of exposure to beryllium and beryllium compounds in the
workplace (82 FR 2470, January 9, 2017). OSHA's regulations contained
new PELs for occupational exposure to beryllium and beryllium
compounds, consisting of: (1) an 8-hour TWA PEL of 0.2 [mu]g/m\3\; and
(2) a STEL of 2.0 [mu]g/m\3\ as measured over a 15-minute sampling
period. In its final rule, OSHA stated that it was establishing an 8-
hour TWA PEL of 0.2 [mu]g/m\3\ because it found that occupational
exposure to beryllium at the previous PEL of 2.0 [mu]g/m\3\ posed a
significant risk of material impairment to the health of exposed
workers, and the lower TWA PEL of 0.2 [micro]g/m\3\ would substantially
reduce that risk. OSHA promulgated a STEL of 2.0 [mu]g/m\3\, as
measured over a 15-minute sampling period, to help reduce the risk of
beryllium sensitization (BeS) and chronic beryllium disease (CBD) in
beryllium-exposed workers. OSHA also adopted an action level for
airborne beryllium of 0.1 [mu]g/m\3\, calculated as an 8-hour TWA.
DOE is now issuing this SNOPR to consider having the Department set
its own 8-hour TWA PEL of 0.2 [mu]g/m\3\ for airborne beryllium, which
is consistent with the current TWA PEL set by OSHA, rather than, as
proposed in the NOPR, adopting OSHA's current or future TWA PELs. The
Department is also proposing to require an airborne action level of 0.1
[mu]g/m\3\, calculated as an 8-hour TWA exposure, as measured in the
worker's breathing zone by personal monitoring, as an alternative to
the previously proposed airborne action level of 0.05 [micro]g/m\3\.
Finally, the Department is proposing to require a STEL of 2.0 [micro]g/
m\3\, as measured over a period of fifteen minutes. The TWA PEL, STEL,
and action level proposed by the Department in this SNOPR would be
consistent with OSHA's current TWA PEL, STEL, and action level.
III. Discussion of Specific Proposed Sections
This section describes the Department's proposals for which the
Department is soliciting public comment.
A. Proposed Sec. 850.22--Permissible Exposure Limits
1. TWA PEL
The newly proposed Sec. 850.22(a) would continue to establish the
TWA PEL for the CBDPP. The PEL supplements the action level by
establishing an absolute 8-hour TWA level above which, no worker may be
exposed. Engineering or work practice controls are required to bring
exposures to at or below the PEL.
In the NOPR, DOE proposed that Sec. 850.22(a) would continue to
adopt OSHA's 8-hour TWA PEL established in 29 CFR 1910.1000 for
airborne exposure to beryllium, as measured in the worker's breathing
zone by personal monitoring but allowed for the adoption of a stricter
standard should OSHA establish one through its rulemaking process. DOE
also proposed in the NOPR [Sec. 850.22(b)] that DOE would inform
employers of any change in the TWA PEL through a notice in the Federal
Register.
[[Page 57367]]
In this SNOPR, proposed Sec. 850.22(a) would require employers to
ensure that no worker is exposed to an airborne concentration of
beryllium in excess of 0.2 [mu]g/m\3\, calculated as an 8-hour TWA
exposure, as measured in the worker's breathing zone by personal
monitoring. This TWA PEL is consistent with the TWA PEL adopted by OSHA
in 29 CFR parts 1910, 1915, and 1926. The Department is proposing to
adopt its own TWA PEL, rather than adopt OSHA's current or future TWA
PEL, because the Department believes by exercising its authority to
issue regulations for industrial and construction health and safety at
DOE facilities, including setting a TWA PEL, it can better provide
clarity and consistency to employers at DOE sites regarding the TWA PEL
with which they must comply.
2. STEL
In the NOPR, DOE did not propose adopting a STEL. In the preamble
to the NOPR, DOE stated that it considered adopting OSHA's proposed
STEL of 2.0 [micro]g/m\3\ but did not do so because DOE's proposed
action level of 0.05 [micro]g/m\3\ would be exceeded in less than the
15-minute sampling period (see discussion regarding Sec. 850.23 in the
NOPR (81 FR 36704, 36722)). In conjunction with its proposal in this
SNOPR to adopt an action level of 0.1 [mu]g/m\3\ (discussed below), the
Department is proposing to adopt a STEL that is consistent with the
STEL set by OSHA in 29 CFR parts 1910, 1915, and 1926. In OSHA's
January 9, 2017, final rule (82 FR 2470), OSHA found that there are
still significant risks of BeS and CBD remaining at the 8-hour TWA PEL.
DOE notes that the goal of a STEL is to provide additional protection
to workers from the risk of harm that can occur as a result of brief,
high-level exposures to beryllium, which have been associated with
development of BeS and CBD. Many of the beryllium activities at DOE
sites are performed for short durations of time.
DOE believes a STEL would protect workers from the risk of harm
that can occur because of brief, high-level exposures to beryllium.
Proposed Sec. 850.22(b) would establish a STEL for the CBDPP by
requiring employers to ensure that no worker is exposed to an airborne
concentration of beryllium in excess of 2.0 [micro]g/m\3\ as determined
over a sampling period of 15 minutes and measured in the worker's
breathing zone by personal monitoring.
B. Proposed Sec. 850.23--Action Level
Currently, 10 CFR 850.23(a) requires a responsible employer to
include in its CBDPP an action level that is no greater than 0.2
[micro]g/m\3\, calculated as an 8-hour TWA exposure, as measured in the
worker's breathing zone by personal monitoring. In the NOPR, DOE
proposed in Sec. 850.23(a) that employers would be required to include
in their CBDPPs an action level that was no greater than 0.05 [micro]g/
m\3\, calculated as an 8-hour TWA exposure, as measured in the worker's
breathing zone by personal monitoring. The 0.05 [micro]g/m\3\ action
level was chosen based on the Department's review of epidemiological
studies and the American Conference of Governmental Industrial
Hygienists (ACGIH[supreg]) threshold limit value (TLV[supreg]). The
Department believed that adopting a lower action level for airborne
beryllium would result in reduced worker exposures and fewer workers
developing BeS and CBD.
In the NOPR, DOE expressed the belief that it did not anticipate
that the proposed 0.05 [micro]g/m\3\ action level would require the use
of new or different types of equipment. However, the Department became
aware that there are concerns as to the feasibility of complying with a
0.05 [mu]g/m\3\ action level, and whether current analytical methods
can detect airborne concentrations of beryllium at that level.
Therefore, DOE is proposing an alternative action level of 0.1
[micro]g/m\3\, as an 8-hour TWA exposure, as measured in the worker's
breathing zone by personal monitoring. This action level would be
consistent with the action level for beryllium adopted by OSHA in its
regulations for beryllium and beryllium compounds. In OSHA's January 9,
2017, final rule (82 FR 2470), OSHA indicated that workers in
facilities that meet the action level of 0.1 [mu]g/m\3\ will face lower
risks of BeS and CBD than workers in facilities that cannot meet the
action level. The Department believes the of 0.1 [mu]g/m\3\ action
level will be more protective than the current action level of 0.2
[micro]g/m\3\ and is feasible.
Proposed Sec. 850.23(a) would require employers to include in
their CBDPPs an action level that is no greater than 0.1 [micro]g/m\3\,
calculated as an 8-hour TWA exposure, as measured in the worker's
breathing zone by personal monitoring. The action level triggers the
requirements to use a number of controls and protective measures
designed to protect employees from exposures to beryllium.
C. Proposed Conforming Amendments to Sec. Sec. 850.11 and 850.25
If the proposed amendment to add the STEL is made, DOE proposes to
make minor conforming amendments to Sec. Sec. 850.11 and 850.25 to
reflect that there would be two applicable exposure limits.
IV. Regulatory Review
A. Review Under Executive Order 12866, 13563, and 14094
Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR
51735 (Oct. 4, 1993), as supplemented and reaffirmed by Executive Order
13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821 (Jan.
21, 2011) and amended by Executive Order 14094, ``Modernizing
Regulatory Review,'' 88 FR 21879 (April 11, 2023), requires agencies,
to the extent permitted by law, 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,
the Office of Information and Regulatory Affairs (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, this
regulatory action is consistent with these principles. Section 6(a) of
Executive Order 12866 also requires agencies to submit ``significant
regulatory actions'' to OIRA for review. OIRA has determined that this
proposed regulatory action does not constitute a ``significant
regulatory action'' within the scope of Executive Order 12866.
[[Page 57368]]
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
E.O. 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 made its procedures and policies
available on the Office of the General Counsel's website
(<a href="http://www.energy.gov/gc/office-general-counsel">www.energy.gov/gc/office-general-counsel</a>).
DOE reviewed this SNOPR 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 a significant economic impact on a substantial number of small
entities. The factual basis for this certification is set forth.
This SNOPR would update DOE's regulations on CBDPP and would only
apply to activities conducted by DOE and DOE's contractors. DOE expects
that any potential economic impact of the 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 the 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 SNOPR does not impose any new information or recordkeeping
requirements. Accordingly, OMB clearance is not required under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and the
procedures implementing that Act, 5 CFR 1320.1 et seq.
D. Review Under the National Environmental Policy Act of 1969
DOE analyzed this SNOPR in accordance with the National
Environmental Policy Act of 1969 (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 determined that this SNOPR is covered under that CX because
the proposed rule is an amendment to an existing regulation that does
not change the environmental effect of the amended regulation.
Therefore, DOE determined that this SNOPR 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 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 unreasonable to meet one or more of them. DOE
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 examined this SNOPR and tentatively
determined that the proposed rule would not preempt State law and would
not have a substantial direct effect on the States, the relationship
between the national government and the States, or 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 6, 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 determined the proposed rule in this SNOPR would not
have such effects and 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 (codified at 2 U.S.C.
1531)). For a proposed regulatory action likely to result in a rule
that may cause the expenditure by State, local, and Tribal governments,
in the
[[Page 57369]]
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="http://www.energy.gov/gc/guidance-opinions">www.energy.gov/gc/guidance-opinions</a>). DOE examined the proposed rule
according to UMRA and its statement of policy and determined 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 determined, under Executive Order 12630, ``Governmental Actions
and Interference with Constitutionally Protected Property Rights'' 53
FR 8859 (March 18, 1988), that this proposed rule 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
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 SNOPR 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. 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. This SNOPR would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE concluded
it is not necessary to prepare a Family Policymaking Assessment.
L. 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 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).
DOE reviewed this SNOPR under the OMB and DOE guidelines and
concluded that it is consistent with applicable policies in those
guidelines.
V. Public Participation--Submission of Comments
DOE will accept comments, data, and information regarding this
SNOPR no later than the date provided in the DATES section at the
beginning of this document. Interested individuals are invited to
participate in this proceeding by submitting data, views, or arguments
with respect to the specific sections addressed in this proposed rule
using the methods described in the ADDRESSES section at the beginning
of this document.
1. Submitting comments via <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 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 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.
2. Submitting comments via email or mail. Comments and documents
submitted via email or mail will also 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.
[[Page 57370]]
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.
3. Confidential Business Information. Pursuant to the provisions of
10 CFR 1004.11, any person 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 to <a href="/cdn-cgi/l/email-protection#88dafde4ede5e9e3e1e6efa6b0bdb8c8e0f9a6ece7eda6efe7fe"><span class="__cf_email__" data-cfemail="c193b4ada4aca0aaa8afa6eff9f4f181a9b0efa5aea4efa6aeb7">[email protected]</span></a>. 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).
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.
VI. Approval by the Office of the Secretary of Energy
The Secretary of Energy approved publication of this supplemental
notice of proposed rulemaking.
List of Subjects in 10 CFR Part 850
Beryllium, Diseases, Hazardous substances, Lung diseases,
Occupational safety and health, Reporting and recordkeeping
requirements.
Signing Authority
This document of the Department of Energy was signed on August 16,
2023, 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 17, 2023.
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 10 CFR part 850 as set forth below.
PART 850--CHRONIC BERYLLIUM DISEASE PREVENTION PROGRAM
0
1. The authority citation for part 850 continues to read as follows:
Authority: 42 U.S.C. 2201(i)(3), (p); 42 U.S.C. 2282c; 29
U.S.C. 668; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq., E.O.
12196, 3 CFR 1981 comp., at 145 as amended.
Sec. 850.11 [Amended]
0
2. Amend Sec. 850.11 by:
0
a. Removing the word ``level'' and adding in its place, the word,
``limits'' in paragraph (b)(1); and
0
b. Removing the word ``limit'' and adding in its place, the word,
``limits'' in paragraph (b)(3)(iv).
0
3. Revise Sec. 850.22 to read as follows:
Sec. 850.22 Permissible exposure limits.
(a) Time-weighted average (TWA) permissible exposure limit (PEL).
Employers must ensure that no worker is exposed to an airborne
concentration of beryllium in excess of 0.2 [mu]g/m\3\, calculated as
an 8-hour TWA exposure, as measured in the worker's breathing zone by
personal monitoring.
(b) Short-term exposure limit (STEL). Employers must ensure that no
worker is exposed to an airborne concentration of beryllium in excess
of 2.0 [micro]g/m3 as determined over a sampling period of 15 minutes
and measured in the worker's breathing zone by personal monitoring.
0
4. Amend Sec. 850.23 by revising paragraph (a) to read as follows:
Sec. 850.23 Action level.
(a) Employers must include in their CBDPPs an action level that is
no greater than 0.1 [micro]g/m\3\, calculated as an 8-hour TWA
exposure, as measured in the worker's breathing zone by personal
monitoring.
* * * * *
0
5. Amend Sec. 850.25 by revising paragraph (a) to read as follows:
Sec. 850.25 Exposure reduction and minimization.
(a) Employers must ensure that no worker is exposed above the
exposure limits prescribed in Sec. 850.22.
* * * * *
[FR Doc. 2023-18082 Filed 8-22-23; 8:45 am]
BILLING CODE 6450-01-P
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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.