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.

Rules and Regulations Federal Register

86811 

Vol. 88, No. 240 

Friday, December 15, 2023 

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. 

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: 

james.dillard@hq.doe.gov. 

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®) threshold limit value (TLV®) 

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® published by the ACGIH®. 

Compliance with these standards and 

guidelines were already required by 

DOE Order 440.1A, Worker Protection 

Management for DOE Federal and 

Contractor Employees, which 


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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 § 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®

TLVs® in the ‘‘Threshold Limit Values 

for Chemical Substances and Physical 

Agents and Biological Exposure 

Indices’’ (2016). The TLVs® 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®

TLVs® in 10 CFR part 851, DOE did not 

intend to adopt OSHA’s ancillary 

beryllium safety requirements and 

ACGIH® values for beryllium and 

beryllium compounds; and (3) clarify in 

§ 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 § 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 

www.regulations.gov/docket/DOE-HQ2022-0030. 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. 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 §§ 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 

§ 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 § 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 § 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 

§ 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 § 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 § 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 § 851.23(a)(3), (4), and (7) 

that were proposed in the NOPR. Final 


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§ 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 § 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 

§ 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® Threshold Limit 

Values for Chemical Substances and 

Physical Agents and Biological 

Exposure Indices, (2016), but did not 

intend to adopt the ACGIH® TLV® for 

beryllium and beryllium compounds. 

DOE proposed to amend § 851.23(a)(9) 

to exclude the ACGIH® TLV® for 

beryllium and beryllium compounds. In 

addition, DOE noted that § 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 § 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® TLV® for 

beryllium and beryllium compounds. 

DOE agrees with this commenter and 

has clarified the language in final 

§ 851.23(a)(9). 

DOE adopts the language in final 

§ 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 § 851.27(b)(1) that 

the incorporation by reference of 

ACGIH®, 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 § 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 

§ 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 §§ 851.3, 

851.7(b) and 851.23(a)(2). 

DOE is revising § 851.3 to correct the 

spelling of the word ‘‘contractor’’ in the 

definition of ‘‘Final notice of violation’’. 

DOE is revising § 851.7(b) to correct 

the spelling of the word ‘‘envelope’’. 

DOE is revising § 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 

Document 

ID Commenter Affiliation 

0002 ....... Thieˆn Phu ́c Leˆ

0003 ....... Steve Sallman .. United Steelworkers. 

0004 ....... Anonymous ...... Anonymous. 

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: 

www.energy.gov/gc/office-generalcounsel. 

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®

TLV® 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 


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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: 

www.energy.gov/gc/guidance-opinions 

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. 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 240 / Friday, December 15, 2023 / Rules and Regulations 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: 

www.energy.gov/sites/prod/files/2019/ 

12/f70/DOE%20Final%20Updated%

20IQA%20Guidelines

%20Dec%202019.pdf. 

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® for chemical substances 

and physical agents and biological 

exposure indices published by the 

ACGIH® 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® TLVs® are available on 

ACGIH®’s website at: www.acgih.org. 

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 

■ 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. 

■ 2. Amend § 851.2 by revising 

paragraph (d) to read as follows: 

§ 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.’’ 

* * * * * 

§ 851.3 [Amended] 

■ 3. Amend § 851.3 by removing the 

word ‘‘contactor’’ and adding in its 

place the word ‘‘contractor’’ in the 

definition for ‘‘final notice of violation.’’ 

§ 851.7 [Amended] 

■ 4. Amend § 851.7(b) by removing the 

word ‘‘envelop’’ and adding in its place 

the word ‘‘envelope’’. 

■ 5. Amend § 851.23 by revising 

paragraphs (a)(2), (3), (4), (7), and (9) 

and (b) to read as follows: 

§ 851.23 Safety and health standards. 

(a) * * * 

(2) Title 29 CFR, part 1904, 

‘‘Recording and Reporting Occupational 

Injuries and Illnesses’’, §§ 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.’’ 

* * * * * 


ddrumheller on DSK120RN23PROD with RULES1
86816 Federal Register / Vol. 88, No. 240 / Friday, December 15, 2023 / Rules and Regulations 

(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®), Threshold Limit Values for 

Chemical Substances and Physical 

Agents and Biological Exposure Indices, 

(2016) (incorporated by reference, see 

§ 851.27), excluding the threshold limit 

values (TLVs®) for beryllium and 

beryllium compounds, when the 

ACGIH® TLVs® 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® TLVs®

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. 

* * * * * 

■ 6. Amend § 851.27 by revising 

paragraph (a) to read as follows: 

§ 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 

www.archives.gov/federal-register/cfr/ 

ibr-locations or email: fr.inspection@

nara.gov. 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 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2023–1821; Project 

Identifier MCAI–2022–01045–A; Amendment 

39–22601; AD 2023–22–17] 

RIN 2120–AA64 

Airworthiness Directives; Viking Air 

Limited (Type Certificate Previously 

Held by Bombardier Inc. and de 

Havilland, Inc.) Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: The FAA is adopting a new 

airworthiness directive (AD) for all 

Viking Air Limited (type certificate 

previously held by Bombardier Inc. and 

de Havilland, Inc.) (Viking) Model 

DHC–3 airplanes. This AD was 

prompted by a report of cracking in the 

left-hand side (LHS) and right-hand side 

(RHS) lower engine mount pickup 

fittings. This AD requires a one-time 

inspection of the affected parts for 

cracking, deformation, corrosion, 

fretting or wear, paint or surface coating 

damage, and loose, missing, or broken 

fasteners, and applicable corrective 

actions. This AD also requires reporting 

the inspection results. The FAA is 

issuing this AD to address the unsafe 

condition on these products. 

DATES: This AD is effective January 19, 

2024. 

The Director of the Federal Register 

approved the incorporation by reference 

of certain publications listed in this AD 

as of January 19, 2024. 

ADDRESSES: 

AD Docket: You may examine the AD 

docket at regulations.gov under Docket 

No. FAA–2023–1821; or in person at 

Docket Operations between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. The AD docket 

contains this final rule, the mandatory 

continuing airworthiness information 

(MCAI), any comments received, and 

other information. The address for 

Docket Operations is U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590. 

Material Incorporated by Reference: 

• For service information identified 

in this final rule, contact Viking Air 

Limited Technical Support, 1959 de 

Havilland Way, Sidney, British 

Columbia, Canada, V8L 5V5; phone: 

(800) 663–8444; fax: (403) 295–8888; 

email: dh_technical.support@

vikingair.com; website: vikingair.com/ 

support/service-bulletins. 

• You may view this service 

information at the FAA, Airworthiness 

Products Section, Operational Safety 

Branch, 901 Locust, Kansas City, MO 

64106. For information on the 

availability of this material at the FAA, 

call (817) 222–5110. It is also available 

at regulations.gov under Docket No. 

FAA–2023–1821. 

FOR FURTHER INFORMATION CONTACT: 

Yaser Osman, Aviation Safety Engineer, 

FAA, 1600 Stewart Avenue, Suite 410, 

Westbury, NY 11590; phone: (917) 348– 

6266; email: avs-nyaco-cos@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The FAA issued a notice of proposed 

rulemaking (NPRM) to amend 14 CFR 

part 39 by adding an AD that would 

apply to all Viking Model DHC–3 

airplanes. The NPRM published in the 

Federal Register on September 7, 2023 

(88 FR 61488). The NPRM was 

prompted by AD CF–2022–41, dated 

August 4, 2022 (also referred to as the 

MCAI), issued by Transport Canada, 

which is the aviation authority for 

Canada. The MCAI states that Viking 

received a post inspection report of 

fatigue cracking on the LHS and RHS of 

the lower engine mount pickup fittings 

on a Viking Model DHC–3 airplane. The 

two upper and two lower engine mount 

pickup fittings provide a rigid 

connection between the engine mount 

ring to which the engine is secured, and 

the firewall rear face. The MCAI also 

states that the current inspection 

requirements do not include a direct 

inspection of the lower and upper 

engine mount pickup fittings, and 

consequently, cracks or other damage to 

the engine mount pickup fittings may 

not be detected. Additionally, the MCAI 

states that an investigation determined 

that the upper engine mount pickup 

fittings can also have undetected fatigue 

cracks because they are manufactured 

from the same material as the lower 

engine mount pickup fittings. 

Cracking of any of the engine mount 

pickup fittings can result in failure of 

the fitting, leading to a loose connection 

of the engine mount ring, which 

provides main support for the engine at 

the firewall. This condition, if not 

addressed, could, in the case of cracking 

of any of the engine mount pickup 

fittings, result in failure of the fitting, 

leading to a loose connection of the 

engine mount ring and consequent 

reduced control of the airplane. To 

address the unsafe condition, the MCAI 

requires a one-time inspection of the 

affected parts and applicable corrective 


ddrumheller on DSK120RN23PROD with RULES1