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.

Proposed Rules Federal Register

57365 

Vol. 88, No. 162 

Wednesday, August 23, 2023 

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. 

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 (mg/m3), 

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 mg/m3, calculated as 

an 8-hour TWA exposure, and a STEL 

of 2.0 mg/m3 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: 

• Federal eRulemaking Portal: 

www.regulations.gov. Follow the 

instructions in the portal for submitting 

comments. 

• Email: Rulemaking.850@

hq.doe.gov. 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. 

• 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 

www.regulations.gov/docket/DOE-HQ2016-0024. All documents in the docket 

are listed in the www.regulations.gov 

index. However, some documents listed 

in the index, such as those containing 

information that is exempt from public 

disclosure, may not be publicly 

available. 

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: james.dillard@

hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Authority 

II. Background and Summary of the 

Supplemental Notice of Proposed 

Rulemaking 

III. Discussion of Specific Proposed Sections 

A. Proposed § 850.22—Permissible 

Exposure Limits 

B. Proposed § 850.23—Action Level 

C. Proposed Conforming Amendments to 

§§ 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 


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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 mg/m3 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 mg/m3 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 mg/ 

m3, 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 mg/m3, 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 mg/m3

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 mg/m3. 

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 mg/m3; and 

(2) a STEL of 2.0 mg/m3 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 

mg/m3 because it found that 

occupational exposure to beryllium at 

the previous PEL of 2.0 mg/m3 posed a 

significant risk of material impairment 

to the health of exposed workers, and 

the lower TWA PEL of 0.2 mg/m3 would 

substantially reduce that risk. OSHA 

promulgated a STEL of 2.0 mg/m3, 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 mg/m3, 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 mg/m3 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 mg/m3, 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 mg/m3. Finally, the 

Department is proposing to require a 

STEL of 2.0 mg/m3, 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 § 850.22—Permissible 

Exposure Limits 

1. TWA PEL 

The newly proposed § 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 

§ 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 [§ 850.22(b)] that DOE would 

inform employers of any change in the 

TWA PEL through a notice in the 

Federal Register. 


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In this SNOPR, proposed § 850.22(a) 

would require employers to ensure that 

no worker is exposed to an airborne 

concentration of beryllium in excess of 

0.2 mg/m3, 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 

mg/m3 but did not do so because DOE’s 

proposed action level of 0.05 mg/m3

would be exceeded in less than the 15- 

minute sampling period (see discussion 

regarding § 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 mg/m3 (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 

§ 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 mg/m3 as determined over 

a sampling period of 15 minutes and 

measured in the worker’s breathing zone 

by personal monitoring. 

B. Proposed § 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 mg/m3, calculated as an 8-hour 

TWA exposure, as measured in the 

worker’s breathing zone by personal 

monitoring. In the NOPR, DOE proposed 

in § 850.23(a) that employers would be 

required to include in their CBDPPs an 

action level that was no greater than 

0.05 mg/m3, calculated as an 8-hour 

TWA exposure, as measured in the 

worker’s breathing zone by personal 

monitoring. The 0.05 mg/m3 action level 

was chosen based on the Department’s 

review of epidemiological studies and 

the American Conference of 

Governmental Industrial Hygienists 

(ACGIH®) threshold limit value (TLV®). 

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 mg/m3 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 mg/m3 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 mg/m3, 

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 

mg/m3 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 mg/m3

action level will be more protective than 

the current action level of 0.2 mg/m3 and 

is feasible. 

Proposed § 850.23(a) would require 

employers to include in their CBDPPs 

an action level that is no greater than 0.1 

mg/m3, 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 §§ 850.11 and 850.25 

If the proposed amendment to add the 

STEL is made, DOE proposes to make 

minor conforming amendments to 

§§ 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. 


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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 (www.energy.gov/gc/ 

office-general-counsel). 

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 


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Federal Register / Vol. 88, No. 162 / Wednesday, August 23, 2023 / Proposed Rules 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: 

www.energy.gov/gc/guidance-opinions). 

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 

www.regulations.gov. The 

www.regulations.gov 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 www.regulations.gov 

information for which disclosure is 

restricted by statute, such as trade 

secrets and commercial or financial 

information (hereinafter referred to as 

Confidential Business Information 

(CBI)). Comments submitted through 

www.regulations.gov cannot be claimed 

as CBI. Comments received through 

www.regulations.gov 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 www.regulations.gov before 

posting. Normally, comments will be 

posted within a few days of being 

submitted. However, if large volumes of 

comments are being processed 

simultaneously, your comment may not 

be viewable for up to several weeks. 

Please keep the comment tracking 

number that www.regulations.gov 

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 www.regulations.gov. 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. 


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57370 Federal Register / Vol. 88, No. 162 / Wednesday, August 23, 2023 / Proposed Rules 

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 

Rulemaking.850@hq.doe.gov. 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 

■ 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. 

§ 850.11 [Amended] 

■ 2. Amend § 850.11 by: 

■ a. Removing the word ‘‘level’’ and 

adding in its place, the word, ‘‘limits’’ 

in paragraph (b)(1); and 

■ b. Removing the word ‘‘limit’’ and 

adding in its place, the word, ‘‘limits’’ 

in paragraph (b)(3)(iv). 

■ 3. Revise § 850.22 to read as follows: 

§ 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 mg/m3, 

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 mg/m3 as 

determined over a sampling period of 15 

minutes and measured in the worker’s 

breathing zone by personal monitoring. 

■ 4. Amend § 850.23 by revising 

paragraph (a) to read as follows: 

§ 850.23 Action level. 

(a) Employers must include in their 

CBDPPs an action level that is no greater 

than 0.1 mg/m3, calculated as an 8-hour 

TWA exposure, as measured in the 

worker’s breathing zone by personal 

monitoring. 

* * * * * 

■ 5. Amend § 850.25 by revising 

paragraph (a) to read as follows: 

§ 850.25 Exposure reduction and 

minimization. 

(a) Employers must ensure that no 

worker is exposed above the exposure 

limits prescribed in § 850.22. 

* * * * * 

[FR Doc. 2023–18082 Filed 8–22–23; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF JUSTICE 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives 

27 CFR Part 555 

[Docket No. 2013R–15P; AG Order No. 

5732–2023] 

RIN 1140–AA51 

Annual Reporting of Explosive 

Materials Storage Facilities to the 

Local Fire Authority 

AGENCY: Bureau of Alcohol, Tobacco, 

Firearms, and Explosives, Department of 

Justice. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Justice is 

proposing to amend Bureau of Alcohol, 

Tobacco, Firearms, and Explosives 

(‘‘ATF’’) regulations to require that any 

person who stores explosive materials 

notify on an annual basis the authority 

having jurisdiction for fire safety in the 

locality in which the explosive 

materials are being stored of the type of 

explosives, magazine capacity, and 

location of each site where such 

materials are stored. In addition, the 

proposed rule requires any person who 

stores explosive materials to notify the 

authority having jurisdiction for fire 

safety in the locality in which the 

explosive materials were stored 

whenever storage is discontinued. These 

changes are intended to increase public 

safety. 

DATES: Written comments must be 

postmarked and electronic comments 

must be submitted on or before 

November 21, 2023. Commenters should 

be aware that the electronic Federal 

Docket Management System will not 

accept comments after 11:59 p.m. 

Eastern Time on the last day of the 

comment period. 

ADDRESSES: You may submit comments, 

identified by docket number (ATF 

2013R–15P), by any of the following 

methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Shermaine Kenner, Mailstop 

6N–602, Office of Regulatory Affairs, 

Enforcement Programs and Services, 


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