[Federal Register Volume 87, Number 170 (Friday, September 2, 2022)]
[Proposed Rules]
[Pages 54178-54183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18719]


=======================================================================
-----------------------------------------------------------------------

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: Notice of proposed rulemaking and request for public comment.

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

SUMMARY: The U.S. Department of Energy (DOE or the Department) is 
proposing to amend its current worker safety and health program 
regulation. The proposed amendment would 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 to 
clarify that DOE did not intend to adopt the 2016 American Conference 
of Governmental Industrial Hygienists threshold limit value for 
beryllium and beryllium compounds.

DATES: Written comments on this proposed rulemaking must be received by 
the Department on or before October 3, 2022. Please refer to section IV 
(Public Participation--Submission of Comments) for additional 
information on the comment period.

ADDRESSES: You may submit comments identified by docket number EHSS-RM-
20-WSHP and/or Regulation Identification Number (RIN) 1992-AA61, in one 
of two ways (please choose only one of the ways listed):
    1. Federal e-Rulemaking Portal: www.regulations.gov. Follow the 
instructions in the portal for submitting comments.
    2. Email: [email protected]. Include docket number EHSS-RM-
20-WSHP and/or RIN 1992-AA61 in the subject line of the email. Please 
include the full body of your comments in the text of the message or as 
an attachment. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see section IV of 
this document.
    Docket: The docket, which includes Federal Register notices, 
comments, and other supporting documents/materials, is available for 
review at www.regulations.gov. 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. A link to the docket web 
page can be found at: www.energy.gov/ehss/worker-safety-and-health-program-10-cfr-851doe-o-4401b. This web page contains a link to the 
docket for this notice on the www.regulations.gov site. The 
www.regulations.gov web page contains instructions on how to access all 
documents, including public comments, in the docket. See section IV of 
this document for further information on how to submit comments through 
www.regulations.gov.

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: [email protected].

SUPPLEMENTARY INFORMATION: DOE incorporates by reference into part 851 
the following publication:
    American Conference of Governmental Industrial Hygienists 
(ACGIH[supreg]), Threshold Limit Values for Chemical Substances and 
Physical Agents and Biological Exposure Indices (2016), excluding 
beryllium and beryllium compounds.
    A copy of this publication can be obtained from: ACGIH[supreg], 
1330 Kemper Meadow Drive, Cincinnati, OH 45240; telephone number 513-
742-2020; or go to: http://www.acgih.org.
    For a further discussion of this publication, see section III.M of 
this document.

Table of Contents

I. Authority and Background
    A. Authority
    B. Background
II. Discussion
III. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    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
IV. Public Participation--Submission of Comments
V. 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),

[[Page 54179]]

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

    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 
threshold limit values (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 established a comprehensive worker 
protection program that provided the basic framework necessary for 
contractors to ensure the safety and health of their workforce. Title 
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.
    In this proposed rule, DOE is proposing to make corrections 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 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.
    This proposed rule would also 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

    Section 851.2(d) currently 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. The 
proposed text in Sec.  851.2(d) would modify the current 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 notes 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. 
The proposed change to Sec.  851.2(d) would ensure consistency between 
the language in 10 CFR parts 850 and 851 with respect to beryllium and 
beryllium compounds.
    Section 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's proposed 
changes in Sec.  851.23(a) would 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.
    The current language in Sec.  851.23(a)(3) refers to 29 CFR part 
1910, Occupational Safety and Health Standards, excluding 29 CFR 
1910.1096, Ionizing Radiation, and 29 CFR 1910.1000, Beryllium. The 
proposed language in Sec.  851.23(a)(3) would correct the reference to 
OSHA's regulations and refer 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.
    The current language in Sec.  851.23(a)(4) refers to 29 CFR part 
1915, Shipyard Employment. The proposed language in Sec.  851.23(a)(4) 
would refer instead to 29 CFR part 1915, Occupational Safety and Health 
Standards for Shipyard Employment, except for 29 CFR 1915.1024, 
Beryllium. In addition, the current language in Sec.  851.23(a)(7) 
refers to 29 CFR part 1926, Safety and Health Regulations for 
Construction. The proposed language in Sec.  851.23(a)(7) would refer 
instead to 29 CFR part 1926, Safety and Health Regulations for 
Construction, except for 29 CFR 1926.1124, Beryllium.
    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

[[Page 54180]]

did not intend to adopt the ACGIH[supreg] TLV[supreg] for beryllium and 
beryllium compounds. This proposed rule would amend Sec.  851.23(a)(9) 
to exclude the ACGIH[supreg] TLV[supreg] for beryllium and beryllium 
compounds. In addition, Sec.  851.23(a)(9) currently only refers to two 
of OSHA's health standards for beryllium and beryllium compounds, 29 
CFR part 1910 (general industry) and 29 CFR part 1926 (construction). 
The proposed language in Sec.  851.23(a)(9) would also include 
references to 29 CFR part 1915, the OSHA standard for shipyards.
    In this proposed rule, DOE is also proposing minor editorial 
changes that would clarify the Department's intent with respect to 
Sec.  851.23(b). Currently, Sec.  851.23(b) states that nothing in this 
part must be construed as relieving a contractor from complying with 
any additional specific safety and health requirement that it 
determines to be necessary to protect the safety and health of workers. 
The proposed amendment to Sec.  851.23(b) would state that 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.
    In addition to the proposed amendment to Sec.  851.23(a)(9) to 
exclude the ACGIH[supreg] TLV[supreg] for beryllium and beryllium 
compounds, this proposed rule would also clarify 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.

III. Procedural Issues and Regulatory Review

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 is 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 of 1980 (5 U.S.C. 601 et seq.) 
requires that an agency prepare an initial regulatory flexibility 
analysis for any regulation for which a general notice of proposed 
rulemaking is required, unless the agency certifies that the rule, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities (5 U.S.C. 605(b)). As required by 
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 has made its procedures and 
policies available on the Office of the General Counsel's website 
(https://energy.gov/gc/office-general-counsel).
    DOE reviewed this proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. DOE certifies that the proposed rule, if adopted, 
would not have significant economic impact on a substantial number of 
small entities. The factual basis for this certification is set forth 
below.
    This proposed rule would update DOE's worker safety and health 
program regulation and clarify 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 
proposed rule would apply only to activities conducted by DOE's 
contractors who would be responsible for implementing the rule 
requirements. DOE expects that any potential economic impact of this 
proposed rule on small businesses would be minimal because work 
performed at DOE sites is under contracts with DOE or the prime 
contractor at the site. DOE contractors are reimbursed through their 
contracts for the costs of complying with worker safety and health 
program requirements. Therefore, they would not be adversely impacted 
by the requirements in this proposed rule. For these reasons, DOE 
certifies that this proposed rule, if promulgated, would not have a 
significant economic impact on a substantial number of small entities, 
and therefore, no regulatory flexibility analysis has been prepared.

C. Review Under the Paperwork Reduction Act of 1995

    This proposed 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 has analyzed this proposed action in accordance with NEPA and DOE's 
NEPA implementing regulations (10 CFR part 1021). DOE's regulations 
include a categorical exclusion (CX) for rulemakings interpreting or 
amending an existing rule or regulation that does not change the 
environmental effect of the rule or regulation being amended. 10 CFR 
part 1021, subpart D, appendix A5. DOE has determined that this 
proposed rule is covered under the CX found in DOE's NEPA regulations 
at paragraph A.5 of appendix A to subpart D, 10 CFR part 1021, because 
it is an amendment to an existing regulation that does not change the 
environmental effect of the amended regulation and, therefore, meets 
the requirements for the application of this CX. See 10 CFR 1021.410. 
Therefore, DOE has determined that this proposed 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

[[Page 54181]]

unreasonable to meet one or more of the standards. DOE has completed 
the required review and determined that, to the extent permitted by 
law, this proposed rule meets the relevant standards of Executive Order 
12988.

F. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 10, 
1999) imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. Agencies are required to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and carefully assess 
the necessity for such actions. The Executive Order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations. 65 FR 13735. DOE has examined this proposed rule and has 
tentatively determined that it would not preempt State law and would 
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. DOE has determined that the proposed rule would not have 
such effects and concluded that Executive Order 13175 does not apply to 
this proposed rule.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L. 104-4) requires each Federal agency to assess the effects of a 
Federal regulatory action on State, local, and Tribal governments, and 
the private sector. (Pub. L. 104-4, sec. 201 et seq. (codified at 2 
U.S.C. 1531 et seq.)). For a proposed 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: https://www.energy.gov/gc/guidance-opinions under ``Guidance & Opinions'' 
(Rulemaking)). DOE examined the proposed rule according to UMRA and its 
statement of policy and has determined that 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 has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights'' 53 FR 8859 (March 18, 1988), that this proposed regulation 
would not result in any takings that might require compensation under 
the Fifth Amendment to the U.S. Constitution.

J. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to prepare and submit to the 
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)(i) is a significant 
regulatory action under Executive Order 12866, or any successor order; 
and (ii) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (2) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
This proposed regulatory action is not a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

K. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being (5 U.S.C. 601, note). This proposed 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.

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

M. Materials Incorporated by Reference

    DOE is proposing to restrict the TLVs[supreg] for chemical 
substances and physical agents and biological exposure indices 
(BEIs[supreg]) published by the ACGIH[supreg] titled Threshold Limit 
Values for Chemical Substances and Physical Agents and Biological 
Exposure Indices, (2016), the currently-approved for

[[Page 54182]]

incorporation by reference, by excluding beryllium and beryllium 
compounds. The TLVs[supreg] and BEIs[supreg] are guidelines that are 
intended for use by industrial hygienists in making decisions regarding 
safe levels of exposure to various chemical and physical agents found 
in the workplace. Each year ACGIH[supreg] publishes its TLVs[supreg] 
and BEIs[supreg]. Copies of the ACGIH[supreg] TLVs[supreg] and 
BEIs[supreg] are available on ACGIH[supreg]'s website at: 
www.acgih.org.

IV. Public Participation--Submission of Comments

    DOE will accept comments, data and information regarding this 
proposed rule before or no later than the date provided in the DATES 
section at the beginning of this proposed rule. Interested individuals 
are invited to participate in this proceeding by submitting data, 
views, or arguments with respect to this proposed rule using the method 
described in the ADDRESSES section at the beginning of this proposed 
rule. To help the Department review the submitted comments, commenters 
are requested to reference the paragraph(s), e.g., Sec.  851.2(d), to 
which they refer where possible.
    1. Submitting comments to www.regulations.gov. The 
www.regulations.gov web page will require you to provide your name and 
contact information. Your contact information will be viewable by DOE's 
Office of Worker Safety and Health Policy staff only. Your contact 
information will not be publicly viewable except for your first and 
last names, organization name (if any), and submitter representative 
name (if any). If your comment cannot be processed properly because of 
technical difficulties, DOE will use this information to contact you. 
If DOE cannot read your comment due to technical difficulties and 
cannot contact you for clarification, DOE may not be able to consider 
your comment. Your contact information will be publicly viewable if you 
include it in the comment itself or in any documents attached to your 
comment. Any information that you do not want to be publicly viewable 
should not be included in your comment, nor in any document attached to 
your comment. Persons viewing comments will see only first and last 
names, organization names, correspondence containing comments, and any 
documents submitted with the comments.
    Do not submit to www.regulations.gov information for which 
disclosure is restricted by statute, such as trade secrets and 
commercial or financial information (hereinafter referred to as 
Confidential Business Information (CBI)). Comments submitted through 
www.regulations.gov cannot be claimed as CBI. Comments received through 
www.regulations.gov will waive any CBI claims for the information 
submitted. For information on submitting CBI, see the Confidential 
Business Information section.
    DOE processes submissions made through www.regulations.gov before 
posting. Normally, comments will be posted within a few days of being 
submitted. However, if large volumes of comments are being processed 
simultaneously, your comment may not be viewable for up to several 
weeks. Please keep the comment tracking number that www.regulations.gov 
provides after you have successfully uploaded your comment.
    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, WordPerfect, or text (ASCII) file format. Provide documents that 
are not secured, that are written in English, and that are free of any 
defects or viruses. Documents should not contain special characters or 
any form of encryption and, if possible, they should carry the 
electronic signature of the author.
    2. Submitting comments via email. Comments and documents submitted 
via email also will be posted to www.regulations.gov. If you do not 
want your personal contact information to be publicly viewable, do not 
include it in your comment or any accompanying documents. Instead, 
provide your contact information in a cover letter. Include your first 
and last names, email address, telephone number, and optional mailing 
address. The cover letter will not be publicly viewable as long as it 
does not include any comments. Include contact information each time 
you submit comments, data, documents, and other information to DOE.
    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel file format. Provide documents that are not secured, that are 
written in English, and that are free of any defects or viruses. 
Documents should not contain special characters or any form of 
encryption and, if possible, they should carry the electronic signature 
of the author.
    3. Confidential Business Information. Pursuant to the provisions of 
10 CFR 1004.11, anyone submitting information or data he or she 
believes to be confidential and exempt by law from public disclosure 
should submit two well-marked copies: one copy of the document marked 
``CONFIDENTIAL'' including all the information believed to be 
confidential, and one copy of the document marked ``NON-CONFIDENTIAL'' 
with the information believed to be confidential deleted. Submit these 
documents via email. DOE will make its own determination as to the 
confidentiality of the information and treat it according to its 
determination.
    It is DOE's policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except information deemed to be 
exempt from public disclosure).
    4. Campaign form letters. Please submit campaign form letters by 
the originating organization in batches of between 50 to 500 form 
letters per PDF or as one form letter with a list of supporters' names 
compiled into one or more PDFs. This reduces comment processing and 
posting time.

V. Approval by the Office of the Secretary of Energy

    The Secretary of Energy has approved publication of this notice of 
proposed rulemaking.

List of Subjects in 10 CFR Part 851

    Civil penalty, Incorporation by reference, Occupational safety and 
health, Reporting and recordkeeping requirements, Safety.

Signing Authority

    This document of the Department of Energy was signed on August 20, 
2022, by Jennifer Granholm, Secretary of Energy. That document with the 
original signature and date is maintained by DOE. For administrative 
purposes only, and in compliance with requirements of the Office of the 
Federal Register, the undersigned DOE Federal Register Liaison Officer 
has been authorized to sign and submit the document in electronic 
format for publication, as an official document of the Department of 
Energy. This administrative process in no way alters the legal effect 
of this document upon publication in the Federal Register.

    Signed in Washington, DC, on August 25, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
    For the reasons set forth in the preamble, the Department of Energy 
proposes to amend part 851 of chapter III of title 10 of the Code of 
Federal Regulations as set forth below:

[[Page 54183]]

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.''
* * * * *
0
3. Amend Sec.  851.23 by revising paragraphs (a)(3), (4), (7), (9) and 
(b) to read as follows:


Sec.  851.23  Safety and health standards.

    (a) * * *
    (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.''
* * * * *
    (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 those for beryllium and 
beryllium compounds, when the ACGIH[supreg] Threshold Limit Values 
(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
4. 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 material is available for 
inspection at the DOE and at the National Archives and Records 
Administration (NARA). Contact DOE at the: U.S. Department of Energy, 
Office of Environment, Health, Safety and Security, Office of Worker 
Safety and Health Policy, 1000 Independence Ave. SW, Washington, DC 
20585, (301) 903-1165. For information on the availability of this 
material at NARA, email: [email protected], or go to: 
www.archives.gov/federal-register/cfr/ibr-locations.html. The material 
may be obtained from the sources in the following paragraphs of this 
section.
* * * * *
[FR Doc. 2022-18719 Filed 9-1-22; 8:45 am]
BILLING CODE 6450-01-P