Rule2023-27615
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
December 15, 2023
Effective
January 16, 2024
Issuing agencies
Energy Department
Abstract
On September 2, 2022, the U.S. Department of Energy (DOE or the Department) published a notice of proposed rulemaking (NOPR) for public comment in which it proposed to amend its current worker safety and health program regulation. In this final rule, DOE is adopting the amendments proposed in the NOPR without change. The amendments 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 clarify that DOE did not intend to adopt the 2016 American Conference of Governmental Industrial Hygienists threshold limit value for beryllium and beryllium compounds. In addition, in this final rule DOE is correcting minor typographical errors identified in the regulation.
Full Text
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[Federal Register Volume 88, Number 240 (Friday, December 15, 2023)]
[Rules and Regulations]
[Pages 86811-86816]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27615]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 88, No. 240 / Friday, December 15, 2023 /
Rules and Regulations
[[Page 86811]]
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: Final rule.
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SUMMARY: On September 2, 2022, the U.S. Department of Energy (DOE or
the Department) published a notice of proposed rulemaking (NOPR) for
public comment in which it proposed to amend its current worker safety
and health program regulation. In this final rule, DOE is adopting the
amendments proposed in the NOPR without change. The amendments 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 clarify that DOE did not intend to
adopt the 2016 American Conference of Governmental Industrial
Hygienists threshold limit value for beryllium and beryllium compounds.
In addition, in this final rule DOE is correcting minor typographical
errors identified in the regulation.
DATES: This rule is effective January 16, 2024. The incorporation by
reference of certain publications listed in this rule was approved by
the Director of the Federal Register on January 17, 2018.
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#3359525e56401d575a5f5f524157735b421d575c561d545c45"><span class="__cf_email__" data-cfemail="8fe5eee2eafca1ebe6e3e3eefdebcfe7fea1ebe0eaa1e8e0f9">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Authority and Background
A. Authority
B. Background
II. Discussion of Public Comments and Rule Provisions
A. Section 851.2 Exclusions
B. Section 851.23 Safety and Health Standards
C. Minor Typographical Corrections
D. List of Commenters
III. Procedural Issues and 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
M. Materials Incorporated by Reference
N. Congressional Notification
IV. 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), 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
In this final rule, DOE is adopting the amendments proposed in the
NOPR published on September 2, 2022 (87 FR 54178) without any
substantive change. The amendments 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
clarify that DOE did not intend to adopt the 2016 American Conference
of Governmental Industrial Hygienists (ACGIH[supreg]) threshold limit
value (TLV[supreg]) for beryllium and beryllium compounds. 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 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
[[Page 86812]]
established a comprehensive worker protection program that provided the
basic framework necessary for contractors to ensure the safety and
health of their workforce. 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.
On September 2, 2022, the Department published the NOPR (87 FR
54178) which proposed to make amendments 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 stated in the NOPR that it 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.
The NOPR also proposed to 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 of Public Comments and Rule Provisions
The Department's NOPR invited public comments on the proposal and
provided a public comment period that ended on October 3, 2022. The
Department received three sets of comments, which were all in support
of the proposed changes to the rule. Copies of the comments are in the
docket for this rulemaking. To access the docket, which includes
Federal Register notices, comments, and other supporting documents/
materials, go to <a href="http://www.regulations.gov/docket/DOE-HQ-2022-0030">www.regulations.gov/docket/DOE-HQ-2022-0030</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. In the docket every submission was assigned a document
identification (Document ID) number that consists of the docket number
(DOE-HQ-2022-0030) followed by an additional four-digit number. For
example, the Document ID number for DOE's NOPR is DOE-HQ-2022-0030-
0001. When citing commenters in the docket, DOE includes the term
``Document ID'' followed by the last four digits of the Document ID
number.
In this section, DOE discusses the comments it received, the final
rule provisions, and the minor typographical errors in Sec. Sec.
851.3, 851.7 and 851.23(a)(2) that DOE identified since publication of
the NOPR and will be correcting in this final rule.
In general, the commenters (Document ID 0002, 0003, 0004) agreed
with and supported the proposed amendments to the rule. They
appreciated the Department's efforts to protect its workers and to
provide a safe and healthful workplace.
A. Section 851.2 Exclusions
In the NOPR, DOE stated the current Sec. 851.2(d) 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. DOE proposed text in Sec. 851.2(d) that would modify
the 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 noted 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.
DOE did not receive any specific comments on this section, and DOE
has not changed the language as proposed in the NOPR. Final Sec.
851.2(d) states that this part does not require compliance with any
OSHA requirements for beryllium or beryllium compounds except as
provided in 10 CFR part 850, ``Chronic Beryllium Disease Prevention
Program.'' This language ensures consistency between the language in 10
CFR parts 850 and 851 with respect to beryllium and beryllium
compounds.
B. Section 851.23 Safety and Health Standards
In the NOPR, DOE stated that Sec. 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 proposed to change Sec. 851.23(a) to 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.
One commenter (Document ID 0003) specifically mentioned that it
supported the proposed changes to Sec. 851.23(a) and encouraged DOE to
work with its stakeholders regarding OSHA's remaining beryllium
requirements in 29 CFR part 1910. DOE appreciates this comment and has
adopted the proposed changes to this paragraph in this final rule.
In this final rule, DOE adopts the changes to Sec. 851.23(a)(3),
(4), and (7) that were proposed in the NOPR. Final
[[Page 86813]]
Sec. 851.23(a)(3) corrects the reference to OSHA's regulations and
refers 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.
Final Sec. 851.23(a)(4) refers to 29 CFR part 1915, Occupational
Safety and Health Standards for Shipyard Employment, except for 29 CFR
1915.1024, Beryllium. Final Sec. 851.23(a)(7) refers to 29 CFR part
1926, Safety and Health Regulations for Construction, except for 29 CFR
1926.1124, Beryllium.
In the NOPR, DOE noted that 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 did not intend to adopt the ACGIH[supreg] TLV[supreg] for beryllium
and beryllium compounds. DOE proposed to amend Sec. 851.23(a)(9) to
exclude the ACGIH[supreg] TLV[supreg] for beryllium and beryllium
compounds. In addition, DOE noted that Sec. 851.23(a)(9) only referred
to two of OSHA's health standards for beryllium and beryllium
compounds, 29 CFR part 1910 (general industry) and 29 CFR part 1926
(construction). DOE proposed to include in Sec. 851.23(a)(9) a
reference to 29 CFR part 1915, the OSHA standard for shipyards.
One commenter (Document ID 0003) specifically mentioned that it
supported DOE's clarification that it did not intend to adopt the
ACGIH[supreg] TLV[supreg] for beryllium and beryllium compounds. DOE
agrees with this commenter and has clarified the language in final
Sec. 851.23(a)(9).
DOE adopts the language in final Sec. 851.23(a)(9) proposed in the
NOPR, with minor changes in phrasing to improve clarity. As stated in
the NOPR, it is 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.
In the NOPR, DOE proposed minor editorial changes to Sec.
851.23(b) to clarify that nothing in part 851 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. One commenter (Document ID 0003) specifically mentioned that
it supported the proposed changes to Sec. 851.23(b). DOE appreciates
the commenter's support for the proposed changes and has adopted the
proposed changes to the paragraph in this final rule.
C. Minor Typographical Corrections
In addition to the changes proposed in the NOPR, DOE is correcting
minor typographical errors in Sec. Sec. 851.3, 851.7(b) and
851.23(a)(2).
DOE is revising Sec. 851.3 to correct the spelling of the word
``contractor'' in the definition of ``Final notice of violation''.
DOE is revising Sec. 851.7(b) to correct the spelling of the word
``envelope''.
DOE is revising Sec. 851.23(a)(2) to correct the reference to
``Parts'' and add in its place ``Part'' followed by specific section
numbers.
D. List of Commenters
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Document ID Commenter Affiliation
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0002............. Thi[ecirc]n .............................
Ph[uacute]c L[ecirc].
0003............. Steve Sallman......... United Steelworkers.
0004............. Anonymous............. Anonymous.
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III. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 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
determined that this regulatory action does not constitute a
``significant regulatory action'' within the scope of Executive Order
12866. Accordingly, this action is not subject to review by OIRA under
that Executive Order.
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 a final regulatory flexibility analysis
for any final rule where the agency was first required by law to
publish a proposed rule for public comment, unless the agency certifies
that the rule, if promulgated, will not have a significant economic
impact on a substantial number of small entities (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 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>.
This final rule updates DOE's worker safety and health program
regulation and clarifies 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 rule applies only
to activities conducted by DOE's contractors. DOE expects that any
potential economic impact of this rule on small businesses will 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
[[Page 86814]]
safety and health program requirements. Therefore, they will not be
adversely impacted by the requirements in this final rule. For these
reasons, DOE certifies that this final rule, if promulgated, will not
have a significant economic impact on a substantial number of small
entities, and therefore, no regulatory flexibility analysis was
prepared for this final rule.
C. Review Under the Paperwork Reduction Act of 1995
This final 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 analyzed this final action in accordance with NEPA and DOE's NEPA
implementing regulations (10 CFR part 1021). DOE determined that this
rule is covered under the categorical exclusion found in DOE's NEPA
regulations at paragraph A.5 of appendix A to subpart D, 10 CFR part
1021, because it is a rulemaking that interprets or amends an existing
rule or regulation that does not change the environmental effect of the
rule. See 10 CFR 1021.410. Therefore, DOE determined that this final
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 unreasonable to meet one or more of the standards. DOE
completed the required review and determined that, to the extent
permitted by law, this final 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 final rule and determined
that it will not preempt State law and will 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 unless DOE provides funds necessary to pay the costs of the
Tribal governments or consults with Tribal officials before
promulgating the rule. DOE determined the final rule will not have such
effects and concluded Executive Order 13175 does not apply to this
final 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 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="http://www.energy.gov/gc/guidance-opinions">www.energy.gov/gc/guidance-opinions</a> under
``Guidance & Opinions'' (Rulemaking)). DOE examined this final 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 final regulation will not result in
any takings that might require compensation under the Fifth Amendment
to the U.S. Constitution.
[[Page 86815]]
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
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
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 final rule is not a significant regulatory action under
Executive Order 12866 and DOE has concluded that this final rule will
not have a significant adverse effect on the supply, distribution, or
use of energy. Therefore, this final rule is not a significant energy
action, and 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 final rule will not impact 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
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 reviewed this final rule under the OMB and DOE guidelines and
concluded that it is consistent with applicable policies in those
guidelines.
M. Materials Incorporated by Reference
DOE is excluding beryllium and beryllium compounds from its
adoption of the TLVs[supreg] for chemical substances and physical
agents and biological exposure indices published by the ACGIH[supreg]
titled Threshold Limit Values for Chemical Substances and Physical
Agents and Biological Exposure Indices, (2016), the currently approved
version for incorporation by reference. Copies of the ACGIH[supreg]
TLVs[supreg] are available on ACGIH[supreg]'s website at:
<a href="http://www.acgih.org">www.acgih.org</a>.
N. Congressional Notification
As required by 5 U.S.C. 801(2), DOE will submit to Congress a
report regarding the issuance of this final rule prior to the effective
date set forth at the outset of this rulemaking. The report will state
it has been determined that the rule is not a ``major rule'' as defined
by 5 U.S.C. 804(2).
IV. Approval by the Office of the Secretary of Energy
The Secretary of Energy has approved publication of this final
rule.
List of Subjects in 10 CFR Part 851
Federal buildings and facilities, Hazardous substances,
Incorporation by reference, Occupational safety and health, Penalties,
Reporting and recordkeeping requirements, Safety.
Signing Authority
This document of the Department of Energy was signed on December 8,
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 December 12, 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
amends part 851 of chapter III of title 10 of the Code of Federal
Regulations as set forth below:
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.''
* * * * *
Sec. 851.3 [Amended]
0
3. Amend Sec. 851.3 by removing the word ``contactor'' and adding in
its place the word ``contractor'' in the definition for ``final notice
of violation.''
Sec. 851.7 [Amended]
0
4. Amend Sec. 851.7(b) by removing the word ``envelop'' and adding in
its place the word ``envelope''.
0
5. Amend Sec. 851.23 by revising paragraphs (a)(2), (3), (4), (7), and
(9) and (b) to read as follows:
Sec. 851.23 Safety and health standards.
(a) * * *
(2) Title 29 CFR, part 1904, ``Recording and Reporting Occupational
Injuries and Illnesses'', Sec. Sec. 1904.4 through 1904.11, 1904.29
through 1904.33, and 1904.46.
(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.''
* * * * *
[[Page 86816]]
(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 the threshold limit values
(TLVs[supreg]) for beryllium and beryllium compounds, when the
ACGIH[supreg] 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
6. 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 incorporation by
reference (IBR) material is available for inspection at DOE and at the
National Archives and Records Administration (NARA). Contact DOE: the
U.S. Department of Energy, Office of Environment, Health, Safety and
Security, Office of Worker Safety and Health Policy, Mailstop EHSS-11,
1000 Independence Ave. SW, Washington, DC 20585; (301) 903-1165. For
information on the availability of this material at NARA, visit
<a href="http://www.archives.gov/federal-register/cfr/ibr-locations">www.archives.gov/federal-register/cfr/ibr-locations</a> or email:
<a href="/cdn-cgi/l/email-protection#8ceafea2e5e2fffce9eff8e5e3e2cce2edfeeda2ebe3fa"><span class="__cf_email__" data-cfemail="7b1d09551215080b1e180f1214153b151a091a551c140d">[email protected]</span></a>. The material may be obtained from the sources
in the following paragraphs of this section.
* * * * *
[FR Doc. 2023-27615 Filed 12-14-23; 8:45 am]
BILLING CODE 6450-01-P
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