[Federal Register Volume 80, Number 217 (Tuesday, November 10, 2015)]
[Rules and Regulations]
[Pages 69564-69567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28575]


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DEPARTMENT OF ENERGY

10 CFR Part 851

RIN 1992-AA50


Worker Safety and Health Program; Technical Amendments

AGENCY: Office of Environment, Health, Safety and Security, U.S. 
Department of Energy.

ACTION: Final rule; technical amendment.

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SUMMARY: The Department of Energy (DOE) is amending the worker safety 
and health program rule to clarify references in the regulation to the 
Occupational Safety and Health Administration's permissible exposure 
limit for beryllium and updating references to organizations and 
documents. The regulatory amendments do not alter substantive rights or 
obligations under current law.

DATES:  This rule is effective on November 10, 2015.

FOR FURTHER INFORMATION CONTACT: Jacqueline D. Rogers, U.S. Department 
of Energy, Office of Environment, Health, Safety and Security, Mailstop 
AU-11, 1000 Independence Ave. SW., Washington, DC 20585, telephone: 
(202) 586-4714, or Email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Introduction

    In 2006, when DOE promulgated 10 CFR part 851, ``Worker Safety and 
Health Program,'' it adopted the Occupational Safety and Health 
Administration's (OSHA) permissible exposure limit (PEL) for beryllium 
in 29 CFR 1910.1000, ``Air Contaminants.'' Section 851.23(a)(1) of part 
851 also requires DOE contractors to comply with the requirements in 10 
CFR part 850, ``Chronic Beryllium Disease Prevention Program.''
    OSHA has published in the Federal Register a notice that proposes a 
new comprehensive health standard for beryllium in 29 CFR part 1910, 
``Subpart Z Toxic and Hazardous Substances,'' which will include a new 
PEL and ancillary provisions. Currently, OSHA only regulates beryllium 
through a PEL. DOE's regulation ``Worker Safety and Health Program'' at 
10 CFR 851.23(a)(3) requires DOE contractors among other things to 
comply with OSHA's PEL for beryllium. To date, OSHA has not established 
any ancillary requirements for the regulation of beryllium exposure. 
Consequently, there are currently no conflicts between the requirement 
in 10 CFR part 851 to comply with OSHA's

[[Page 69565]]

regulation, including OSHA's PEL, and the remaining requirements of 10 
CFR parts 850 and 851. However, should OSHA adopt a comprehensive 
standard for beryllium, as OSHA recently proposed in the Federal 
Register, there may be confusion among DOE and DOE contractors 
regarding which standard would apply at DOE sites. The technical 
amendment clarifies that it is DOE's intent to only apply OSHA's PEL 
for beryllium, and that DOE and DOE contractors would not be subject to 
any other beryllium-specific OSHA requirements, including the ancillary 
provisions OSHA has recently proposed to add to its health standard 
(e.g., exposure assessment, personal protective clothing and equipment, 
medical surveillance, medical removal, training, and regulated areas or 
access control). The Department expects its employees, including 
contractors to continue to implement the provisions of 10 CFR part 850 
at DOE sites.
    The Department is also making technical amendments to 10 CFR part 
851, Appendix A, Section 7, ``Biological Safety,'' to avoid confusion 
within the DOE community regarding the correct terminology, the 
identity of the agency responsible for biohazards, and the correct 
forms to use for select agents.
    This final rule has been approved by the Secretary of Energy.

II. Procedural Requirements

A. Review Under Executive Order 12866

    This regulatory action has been determined not to be ``a 
significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this action was not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs (OIRA) of the 
Office of Management and Budget (OMB).

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed 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. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies to ensure that the potential impacts of its 
draft rules on small entities are properly considered during the 
rulemaking process (68 FR 7990, February 19, 2003), and has made them 
available on the Office of General Counsel's Web site: http://energy.gov/gc/office-general-counsel.
    The regulatory amendments in this notice of final rulemaking 
reflect technical amendments, and clarify DOE's intent to continue to 
only apply OSHA's PEL for beryllium, and to not apply to DOE and DOE 
contractors any other beryllium-specific OSHA requirements that may be 
promulgated in the future. Rights and obligations under 10 CFR part 851 
are unaltered and as such, are not subject to the requirement for a 
general notice of proposed rulemaking under the Administrative 
Procedure Act (5 U.S.C. 553(a)(2)) (APA). There is no requirement under 
the APA or any other law that this rule be proposed for public comment. 
Consequently, this rulemaking is exempt from the requirements of the 
Regulatory Flexibility Act.

C. Review Under the Paperwork Reduction Act

    This final rule does not impose a collection of information 
requirement subject to the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.).

D. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions that would not individually or cumulatively have a 
significant impact on the human environment, as determined by DOE's 
regulations implementing the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). Specifically, this rule amends existing 
regulations without changing the environmental effect of the 
regulations being amended, and, therefore, is covered under the 
Categorical Exclusion in paragraph A5 of Appendix A to subpart D, 10 
CFR part 1021. Accordingly, neither an environmental assessment nor an 
environmental impact statement is required.

E. 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 has examined this rule and has 
determined that it does not preempt State law and does 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.

F. 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; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. Section 3(b)(2) 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, to be given to the regulation; 
(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, to be given to the regulation; (5) defines 
key terms; and (6) 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 has completed the 
required review and determined that, to the extent permitted by law, 
this final rule meets the relevant standards of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4)

[[Page 69566]]

requires each Federal agency to assess the effects of a Federal 
regulatory action on State, local, and tribal governments, and the 
private sector. DOE has determined that this regulatory action does not 
impose a Federal mandate on State, local or tribal governments or on 
the private sector.

H. 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 rule that may affect family well-being. 
This rule would not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

I. 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 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 has reviewed this 
final rule under the OMB and DOE guidelines and has concluded that it 
is consistent with applicable policies in those guidelines.

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 
proposed 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) Is a significant 
regulatory action under Executive Order 12866, or any successor order; 
and 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 regulatory action is not a significant energy action. Accordingly, 
DOE has not prepared a Statement of Energy Effects.

K. Administrative Procedure Act

    An agency may find good cause to exempt a rule from the requirement 
for a notice of proposed rulemaking and the opportunity for public 
comment under the APA if the requirement is determined to be 
unnecessary, impracticable, or contrary to the public interest under 5 
U.S.C. 533(b)(3)(B). The rule clarifies references in 10 CFR part 851 
concerning its adoption of provisions found in 29 CFR part 1910, and 
updates references to organizations and documents. The first change in 
this rule is to add ``Occupational Safety and Health Administration 
beryllium requirements except for any permissible exposure limit for 
beryllium in 29 CFR 1910.1000'' to the list of exclusions from 10 CFR 
part 851, found in 10 CFR 851.2. The second change in this rule is the 
addition of the words ``and 29 CFR 1910.1000, Beryllium'' at the end of 
10 CFR 851.23(a)(3). Safety and Health requirements relating to DOE and 
DOE contractors' employees' exposure to beryllium are and will continue 
to be covered by 10 CFR part 850, ``Chronic Beryllium Disease 
Prevention Program.'' The updates of referenced organizations and 
documents in 10 CFR part 851, Appendix A, Section 7 are strictly 
technical amendments. Consequently, good cause exists for issuing this 
amendment as a final rule as notice and comment is unnecessary.

L. Congressional Notification

    As required by 5 U.S.C. 801, 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 that 
it has been determined that the rule is not a ``major rule'' as defined 
by 5 U.S.C. 801(2).

List of Subjects in 10 CFR Part 851

    Civil penalty, Federal buildings and facilities, Occupational 
safety and health, Safety, Reporting and recordkeeping requirements.

    Issued in Washington, DC, on October 15, 2015.
Matthew B. Moury,
Associate Under Secretary for Environment, Health, Safety and Security.

    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.


0
2. Section 851.2 is amended by adding paragraph (d) to read as follows:


Sec.  851.2  Exclusions.

* * * * *
    (d) This part does not require compliance with any Occupational 
Safety and Health Administration beryllium requirement except for any 
permissible exposure limit for beryllium in 29 CFR 1910.1000.


Sec.  851.23  [Amended]

0
3. Section 851.23 is amended in paragraph (a)(3) by adding at the end 
of the sentence ``, and 29 CFR 1910.1000, Beryllium''.

0
4. Appendix A, section 7, Biological Safety, is amended:
0
a. In paragraph (a)(1)(i) by adding ``, United States Department of 
Agriculture Animal and Plant Health Inspection Service (USDA/APHIS)'' 
in the first sentence, after ``(WHO)''; and
0
b. By revising paragraphs (a)(3) and (4) to read as follows:

Appendix A to Part 851--Worker Safety and Health Functional Areas

* * * * *
    7. * * *
    (a) * * *
    (3) Provides for submission to the appropriate Head of DOE Field 
Element, for review and concurrence before transmittal to the 
Federal Select Agent Program, each Laboratory Registration/Select 
Agent Program registration application package (APHIS/CDC Form 1, 
Application for Registration for Possession, Use, and Transfer of 
Select Agents and Toxins) requesting registration of (or amendment 
to a previously approved registration) a laboratory facility for the 
purpose of possessing, using, or transferring biological select 
agents and/or toxins.
    (4) Provides for submission to the appropriate Head of DOE Field 
Element, a copy of each APHIS/CDC Form 2, Request to Transfer Select 
Agents and Toxins, upon initial submission of APHIS/CDC Form 2 to a 
vendor or other supplier requesting or ordering a biological select 
agent or toxin for transfer, receipt, and handling in the registered 
facility; and submission to the appropriate Head of DOE Field 
Element the completed copy of the APHIS/CDC Form 2, documenting 
final disposition and/or destruction of the select agent or toxin,

[[Page 69567]]

within 10 days of completion of the APHIS/CDC Form 2.
* * * * *
[FR Doc. 2015-28575 Filed 11-9-15; 8:45 am]
 BILLING CODE 6450-01-P