[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 [www.gpo.gov]
[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.

-----------------------------------------------------------------------

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 www.regulations.gov/docket/DOE-HQ-2022-0030. 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 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

------------------------------------------------------------------------
   Document ID            Commenter                 Affiliation
------------------------------------------------------------------------
0002.............  Thi[ecirc]n             .............................
                    Ph[uacute]c L[ecirc].
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-general-counsel.
    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: 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.

[[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: 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[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: 
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

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