[Federal Register Volume 88, Number 162 (Wednesday, August 23, 2023)]
[Proposed Rules]
[Pages 57365-57370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18082]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 88, No. 162 / Wednesday, August 23, 2023 / 
Proposed Rules  

[[Page 57365]]



DEPARTMENT OF ENERGY

10 CFR Part 850

[EHSS-RM-11-CBDPP]
RIN 1992-AA39


Chronic Beryllium Disease Prevention Program

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

ACTION: Supplemental notice of proposed rulemaking and request for 
comment.

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

SUMMARY: On June 7, 2016, the U.S. Department of Energy (DOE or the 
Department) published a Notice of Proposed Rulemaking (NOPR) in the 
Federal Register proposing to amend its current Chronic Beryllium 
Disease Prevention Program (CBDPP) regulations. In the NOPR, DOE 
proposed an action level of 0.05 micrograms of beryllium per cubic 
meter of air ([mu]g/m\3\), calculated as an 8-hour time-weighted 
average (TWA), but declined to propose a short-term exposure limit 
(STEL). In this supplemental notice of proposed rulemaking (SNOPR), DOE 
solicits comments on an alternative proposed action level of 0.1 [mu]g/
m\3\, calculated as an 8-hour TWA exposure, and a STEL of 2.0 [mu]g/
m\3\ measured over a period of fifteen minutes. DOE is also proposing 
to set its own TWA permissible exposure limit (PEL) for airborne 
beryllium, which is consistent with the TWA PEL currently set by the 
Occupational Safety and Health Administration (OSHA), rather than adopt 
OSHA's current or any future 8-hour TWA PEL. The proposed amendments 
are intended to improve and strengthen the current CBDPP regulations 
and are applicable to DOE contractors and Federal employees who are, 
were, or potentially were exposed to beryllium at DOE sites.

DATES: DOE will accept comments, data, and information regarding this 
SNOPR on or before September 22, 2023. Please refer to section V 
(Public Participation-Submission of Comments) of this SNOPR for 
additional information.

ADDRESSES: You may send comments, identified by EHSS-RM-11-CBDPP and/or 
Regulation Identification Number (RIN) 1992-AA39, by any of the 
following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the instructions in the portal for submitting comments.
     Email: [email protected]. Include docket number 
EHSS-RM-11-CBDPP and/or RIN 1992-AA39 in the subject line of the email. 
Please include the full body of your comments in the text of the 
message or as an attachment.
     Mail: Address written comments to James Dillard, U.S. 
Department of Energy, Office of Environment, Health, Safety and 
Security, Mailstop EHSS-11, Docket Number EHSS-RM-11-CBDPP, 1000 
Independence Ave. SW, Washington, DC 20585 (due to potential delays in 
DOE's receipt and processing of mail sent through the U.S. Postal 
Service, we encourage respondents to submit comments electronically to 
ensure timely receipt).
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Participation--Submission of Comments'' (section V) of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket, which includes Federal Register 
notices, comments, and other supporting documents/materials, go to 
www.regulations.gov/docket/DOE-HQ-2016-0024. All documents in the 
docket are listed in the www.regulations.gov index. However, some 
documents listed in the index, such as those containing information 
that is exempt from public disclosure, may not be publicly available.

FOR FURTHER INFORMATION CONTACT: Mr. James Dillard, U.S. Department of 
Energy, Office of Environment, Health, Safety and Security, Mailstop 
EHSS-11, 1000 Independence Ave. SW, Washington, DC 20585. Telephone: 
(301) 903-1165. Email: [email protected].

SUPPLEMENTARY INFORMATION: 
I. Authority
II. Background and Summary of the Supplemental Notice of Proposed 
Rulemaking
III. Discussion of Specific Proposed Sections
    A. Proposed Sec.  850.22--Permissible Exposure Limits
    B. Proposed Sec.  850.23--Action Level
    C. Proposed Conforming Amendments to Sec. Sec.  850.11 and 
850.25
IV. Regulatory Review
    A. Review Under Executive Orders 12866, 13563, and 14094
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 12988
    F. Review Under Executive Order 13132
    G. Review Under Executive Order 13175
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under Executive Order 12630
    J. Review Under Executive Order 13211
    K. Review Under the Treasury and General Government 
Appropriations Act, 1999
    L. Review Under the Treasury and General Government 
Appropriations Act, 2001
V. Public Participation--Submission of Comments
VI. Approval by the Office of the Secretary of Energy

I. Authority

    DOE has broad authority to regulate worker safety and health with 
respect to its nuclear and nonnuclear functions pursuant to the Atomic 
Energy Act of 1954 (AEA), 42 U.S.C. 2011 et seq.; the Energy 
Reorganization Act of 1974 (ERA), 42 U.S.C. 5801 et seq.; and the 
Department of Energy Organization Act (DOEOA), 42 U.S.C. 7101 et seq. 
Specifically, the AEA authorized and directed the Atomic Energy 
Commission (AEC), a predecessor agency to DOE, to protect health and 
promote safety during the performance of activities under the AEA. See 
Sec. 31a.(5) of the AEA, 42 U.S.C. 2051(a)(5); Sec. 161 b. of the AEA, 
42 U.S.C. 2201(b); Sec. 161 i.(3) of the AEA, 42 U.S.C. 2201(i)(3); and 
Sec. 161 p. of the AEA, 42 U.S.C. 2201(p). In addition, Congress 
amended the AEA in 2002 by adding section 234C, 42 U.S.C. 2282c, which, 
among other things, directed DOE to ``promulgate regulations for 
industrial and construction health and safety at Department of Energy 
facilities that are operated by contractors covered by agreements of 
indemnification under section 2210(d)'' of title 42 of the United 
States Code.
    The ERA abolished the AEC and replaced it with the Nuclear 
Regulatory Commission (NRC), which became responsible for the licensing 
of

[[Page 57366]]

commercial nuclear activities, and the Energy Research and Development 
Administration (ERDA), which became responsible for the other functions 
of the AEC under the AEA, as well as several nonnuclear functions. The 
ERA authorized ERDA to use the regulatory authority under the AEA to 
carry out its nuclear and nonnuclear functions, including those 
functions that might become vested in ERDA in the future. See Sec. 
105(a) of the ERA, 42 U.S.C. 5815(a); and Sec. 107 of the ERA, 42 
U.S.C. 5817. The DOEOA transferred the functions and authorities of 
ERDA to DOE. See Sec. 301(a) of DOEOA, 42 U.S.C. 7151(a); Sec. 641 of 
DOEOA, 42 U.S.C. 7251; and Sec. 644 of DOEOA, 42 U.S.C. 7254.
    Additional authority for the rule, insofar as it applies to DOE 
Federal employees, is found in section 19 of the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 668) and Executive Order 12196, 
``Occupational Safety and Health Programs for Federal Employees'' (5 
U.S.C. 7902 note), which require Federal agencies to establish 
comprehensive occupational safety and health programs for their 
employees.

II. Background and Summary of the Supplemental Notice of Proposed 
Rulemaking

    On December 8, 1999, DOE published its final rule establishing the 
CBDPP (64 FR 68854), which became effective January 7, 2000. In the 
CBDPP, DOE adopted, among other things, OSHA's PEL in 29 CFR 1910.1000, 
which was 2.0 [mu]g/m\3\ measured as an 8-hour TWA, and any more 
stringent TWA PEL that may be promulgated by OSHA as a health standard 
in the future. The AEC first applied the 2.0 [mu]g/m\3\ TWA PEL in 1949 
and it had been continuously applied by DOE and its predecessor 
agencies through the years. Additionally, DOE set an ``action level'' 
for worker exposure to airborne concentrations of beryllium at 0.2 
[mu]g/m\3\, calculated as an 8-hour TWA exposure. The ``action level'' 
is the level of airborne concentrations of beryllium which, if met or 
exceeded, would require a DOE office or contractor to implement certain 
worker protection provisions. Since the rule's January 7, 2000, 
effective date, DOE facilities have been expected to maintain worker 
exposures to beryllium at levels at or below OSHA's PEL, as well as 
operate with an action level.
    Other than OSHA's PEL, DOE employers are not subject to any other 
OSHA beryllium-specific requirements in 29 CFR 1910.1024. Section 
4(b)(1) of the Occupational Safety and Health Act of 1970 [29 U.S.C. 
653(b)(1)] (OSH Act) states that ``[n]othing in [the OSH Act] shall 
apply to working conditions of employees with respect to which other 
Federal agencies . . . exercise statutory authority to prescribe or 
enforce standards or regulations affecting occupational safety or 
health.''
    To avoid confusion among its contractors and their employees 
regarding with which standard to comply, the Department amended 10 CFR 
part 851, Worker Safety and Health Program (80 FR 69564, November 10, 
2015). The amendment clarified that it is DOE's intent to only adopt 
OSHA's 8-hour PEL for beryllium, and that the ancillary provisions 
(e.g., exposure assessment, personal protective clothing and equipment, 
medical surveillance, medical removal, training, and regulated areas or 
access control) of OSHA's standard do not apply to DOE and DOE 
contractor employees.
    On June 7, 2016, DOE published a NOPR for public comment in the 
Federal Register (81 FR 36704) proposing to amend its CBDPP 
regulations. The public comment period ended on September 6, 2016. The 
proposed amendments included in the NOPR were intended to strengthen 
the current CBDPP and the worker protection programs established under 
10 CFR part 851, Worker Safety and Health Program. In part, the 
proposed amendments in the NOPR would have reduced the action level for 
worker exposure to airborne concentrations of beryllium to 0.05 [mu]g/
m\3\, calculated as an 8-hour TWA exposure. In the NOPR, DOE also 
proposed to adopt OSHA's current and any future PELs for worker 
exposure to beryllium and beryllium compounds. DOE did not propose 
adopting a STEL because DOE's proposed action level of 0.05 [mu]g/m\3\ 
would be exceeded in less than the 15-minute sampling period for the 
STEL where exposure levels were at OSHA's PEL of 2.0 [micro]g/m\3\.
    After publication of DOE's NOPR, OSHA promulgated new regulations 
in 29 CFR parts 1910, 1915 and 1926 for the protection of workers from 
the effects of exposure to beryllium and beryllium compounds in the 
workplace (82 FR 2470, January 9, 2017). OSHA's regulations contained 
new PELs for occupational exposure to beryllium and beryllium 
compounds, consisting of: (1) an 8-hour TWA PEL of 0.2 [mu]g/m\3\; and 
(2) a STEL of 2.0 [mu]g/m\3\ as measured over a 15-minute sampling 
period. In its final rule, OSHA stated that it was establishing an 8-
hour TWA PEL of 0.2 [mu]g/m\3\ because it found that occupational 
exposure to beryllium at the previous PEL of 2.0 [mu]g/m\3\ posed a 
significant risk of material impairment to the health of exposed 
workers, and the lower TWA PEL of 0.2 [micro]g/m\3\ would substantially 
reduce that risk. OSHA promulgated a STEL of 2.0 [mu]g/m\3\, as 
measured over a 15-minute sampling period, to help reduce the risk of 
beryllium sensitization (BeS) and chronic beryllium disease (CBD) in 
beryllium-exposed workers. OSHA also adopted an action level for 
airborne beryllium of 0.1 [mu]g/m\3\, calculated as an 8-hour TWA.
    DOE is now issuing this SNOPR to consider having the Department set 
its own 8-hour TWA PEL of 0.2 [mu]g/m\3\ for airborne beryllium, which 
is consistent with the current TWA PEL set by OSHA, rather than, as 
proposed in the NOPR, adopting OSHA's current or future TWA PELs. The 
Department is also proposing to require an airborne action level of 0.1 
[mu]g/m\3\, calculated as an 8-hour TWA exposure, as measured in the 
worker's breathing zone by personal monitoring, as an alternative to 
the previously proposed airborne action level of 0.05 [micro]g/m\3\. 
Finally, the Department is proposing to require a STEL of 2.0 [micro]g/
m\3\, as measured over a period of fifteen minutes. The TWA PEL, STEL, 
and action level proposed by the Department in this SNOPR would be 
consistent with OSHA's current TWA PEL, STEL, and action level.

III. Discussion of Specific Proposed Sections

    This section describes the Department's proposals for which the 
Department is soliciting public comment.

A. Proposed Sec.  850.22--Permissible Exposure Limits

1. TWA PEL
    The newly proposed Sec.  850.22(a) would continue to establish the 
TWA PEL for the CBDPP. The PEL supplements the action level by 
establishing an absolute 8-hour TWA level above which, no worker may be 
exposed. Engineering or work practice controls are required to bring 
exposures to at or below the PEL.
    In the NOPR, DOE proposed that Sec.  850.22(a) would continue to 
adopt OSHA's 8-hour TWA PEL established in 29 CFR 1910.1000 for 
airborne exposure to beryllium, as measured in the worker's breathing 
zone by personal monitoring but allowed for the adoption of a stricter 
standard should OSHA establish one through its rulemaking process. DOE 
also proposed in the NOPR [Sec.  850.22(b)] that DOE would inform 
employers of any change in the TWA PEL through a notice in the Federal 
Register.

[[Page 57367]]

    In this SNOPR, proposed Sec.  850.22(a) would require employers to 
ensure that no worker is exposed to an airborne concentration of 
beryllium in excess of 0.2 [mu]g/m\3\, calculated as an 8-hour TWA 
exposure, as measured in the worker's breathing zone by personal 
monitoring. This TWA PEL is consistent with the TWA PEL adopted by OSHA 
in 29 CFR parts 1910, 1915, and 1926. The Department is proposing to 
adopt its own TWA PEL, rather than adopt OSHA's current or future TWA 
PEL, because the Department believes by exercising its authority to 
issue regulations for industrial and construction health and safety at 
DOE facilities, including setting a TWA PEL, it can better provide 
clarity and consistency to employers at DOE sites regarding the TWA PEL 
with which they must comply.
2. STEL
    In the NOPR, DOE did not propose adopting a STEL. In the preamble 
to the NOPR, DOE stated that it considered adopting OSHA's proposed 
STEL of 2.0 [micro]g/m\3\ but did not do so because DOE's proposed 
action level of 0.05 [micro]g/m\3\ would be exceeded in less than the 
15-minute sampling period (see discussion regarding Sec.  850.23 in the 
NOPR (81 FR 36704, 36722)). In conjunction with its proposal in this 
SNOPR to adopt an action level of 0.1 [mu]g/m\3\ (discussed below), the 
Department is proposing to adopt a STEL that is consistent with the 
STEL set by OSHA in 29 CFR parts 1910, 1915, and 1926. In OSHA's 
January 9, 2017, final rule (82 FR 2470), OSHA found that there are 
still significant risks of BeS and CBD remaining at the 8-hour TWA PEL. 
DOE notes that the goal of a STEL is to provide additional protection 
to workers from the risk of harm that can occur as a result of brief, 
high-level exposures to beryllium, which have been associated with 
development of BeS and CBD. Many of the beryllium activities at DOE 
sites are performed for short durations of time.
    DOE believes a STEL would protect workers from the risk of harm 
that can occur because of brief, high-level exposures to beryllium. 
Proposed Sec.  850.22(b) would establish a STEL for the CBDPP by 
requiring employers to ensure that no worker is exposed to an airborne 
concentration of beryllium in excess of 2.0 [micro]g/m\3\ as determined 
over a sampling period of 15 minutes and measured in the worker's 
breathing zone by personal monitoring.

B. Proposed Sec.  850.23--Action Level

    Currently, 10 CFR 850.23(a) requires a responsible employer to 
include in its CBDPP an action level that is no greater than 0.2 
[micro]g/m\3\, calculated as an 8-hour TWA exposure, as measured in the 
worker's breathing zone by personal monitoring. In the NOPR, DOE 
proposed in Sec.  850.23(a) that employers would be required to include 
in their CBDPPs an action level that was no greater than 0.05 [micro]g/
m\3\, calculated as an 8-hour TWA exposure, as measured in the worker's 
breathing zone by personal monitoring. The 0.05 [micro]g/m\3\ action 
level was chosen based on the Department's review of epidemiological 
studies and the American Conference of Governmental Industrial 
Hygienists (ACGIH[supreg]) threshold limit value (TLV[supreg]). The 
Department believed that adopting a lower action level for airborne 
beryllium would result in reduced worker exposures and fewer workers 
developing BeS and CBD.
    In the NOPR, DOE expressed the belief that it did not anticipate 
that the proposed 0.05 [micro]g/m\3\ action level would require the use 
of new or different types of equipment. However, the Department became 
aware that there are concerns as to the feasibility of complying with a 
0.05 [mu]g/m\3\ action level, and whether current analytical methods 
can detect airborne concentrations of beryllium at that level. 
Therefore, DOE is proposing an alternative action level of 0.1 
[micro]g/m\3\, as an 8-hour TWA exposure, as measured in the worker's 
breathing zone by personal monitoring. This action level would be 
consistent with the action level for beryllium adopted by OSHA in its 
regulations for beryllium and beryllium compounds. In OSHA's January 9, 
2017, final rule (82 FR 2470), OSHA indicated that workers in 
facilities that meet the action level of 0.1 [mu]g/m\3\ will face lower 
risks of BeS and CBD than workers in facilities that cannot meet the 
action level. The Department believes the of 0.1 [mu]g/m\3\ action 
level will be more protective than the current action level of 0.2 
[micro]g/m\3\ and is feasible.
    Proposed Sec.  850.23(a) would require employers to include in 
their CBDPPs an action level that is no greater than 0.1 [micro]g/m\3\, 
calculated as an 8-hour TWA exposure, as measured in the worker's 
breathing zone by personal monitoring. The action level triggers the 
requirements to use a number of controls and protective measures 
designed to protect employees from exposures to beryllium.

C. Proposed Conforming Amendments to Sec. Sec.  850.11 and 850.25

    If the proposed amendment to add the STEL is made, DOE proposes to 
make minor conforming amendments to Sec. Sec.  850.11 and 850.25 to 
reflect that there would be two applicable exposure limits.

IV. Regulatory Review

A. Review Under Executive Order 12866, 13563, and 14094

    Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR 
51735 (Oct. 4, 1993), as supplemented and reaffirmed by Executive Order 
13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821 (Jan. 
21, 2011) and amended by Executive Order 14094, ``Modernizing 
Regulatory Review,'' 88 FR 21879 (April 11, 2023), requires agencies, 
to the extent permitted by law, to (1) propose or adopt a regulation 
only upon a reasoned determination that its benefits justify its costs 
(recognizing that some benefits and costs are difficult to quantify); 
(2) tailor regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives, taking into account, 
among other things, and to the extent practicable, the costs of 
cumulative regulations; (3) select, in choosing among alternative 
regulatory approaches, those approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity); (4) to the 
extent feasible, specify performance objectives, rather than specifying 
the behavior or manner of compliance that regulated entities must 
adopt; and (5) identify and assess available alternatives to direct 
regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public. DOE 
emphasizes as well that Executive Order 13563 requires agencies to use 
the best available techniques to quantify anticipated present and 
future benefits and costs as accurately as possible. In its guidance, 
the Office of Information and Regulatory Affairs (OIRA) has emphasized 
that such techniques may include identifying changing future compliance 
costs that might result from technological innovation or anticipated 
behavioral changes. For the reasons stated in the preamble, this 
regulatory action is consistent with these principles. Section 6(a) of 
Executive Order 12866 also requires agencies to submit ``significant 
regulatory actions'' to OIRA for review. OIRA has determined that this 
proposed regulatory action does not constitute a ``significant 
regulatory action'' within the scope of Executive Order 12866.

[[Page 57368]]

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires that an agency prepare an initial regulatory flexibility 
analysis for any regulation for which a general notice of proposed 
rulemaking is required, unless the agency certifies that the rule, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities (5 U.S.C. 605(b)). As required by 
E.O. 13272, ``Proper Consideration of Small Entities in Agency 
Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published procedures and 
policies on February 19, 2003, to ensure that the potential impacts of 
its rules on small entities are properly considered during the 
rulemaking process. 68 FR 7990. DOE made its procedures and policies 
available on the Office of the General Counsel's website 
(www.energy.gov/gc/office-general-counsel).
    DOE reviewed this SNOPR under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. DOE certifies that the proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification is set forth.
    This SNOPR would update DOE's regulations on CBDPP and would only 
apply to activities conducted by DOE and DOE's contractors. DOE expects 
that any potential economic impact of the proposed rule on small 
businesses would be minimal because work performed at DOE sites is 
under contracts with DOE or the prime contractor at the site. DOE 
contractors are reimbursed through their contracts for the costs of 
complying with worker safety and health program requirements. 
Therefore, they would not be adversely impacted by the requirements in 
this proposed rule. For these reasons, DOE certifies that the proposed 
rule, if promulgated, would not have a significant economic impact on a 
substantial number of small entities, and therefore, no regulatory 
flexibility analysis has been prepared.

C. Review Under the Paperwork Reduction Act of 1995

    This SNOPR does not impose any new information or recordkeeping 
requirements. Accordingly, OMB clearance is not required under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and the 
procedures implementing that Act, 5 CFR 1320.1 et seq.

D. Review Under the National Environmental Policy Act of 1969

    DOE analyzed this SNOPR in accordance with the National 
Environmental Policy Act of 1969 (NEPA) and DOE's NEPA implementing 
regulations (10 CFR part 1021). DOE's regulations include a categorical 
exclusion (CX) for rulemakings interpreting or amending an existing 
rule or regulation that does not change the environmental effect of the 
rule or regulation being amended (10 CFR part 1021, subpart D, appendix 
A5). DOE determined that this SNOPR is covered under that CX because 
the proposed rule is an amendment to an existing regulation that does 
not change the environmental effect of the amended regulation. 
Therefore, DOE determined that this SNOPR is not a major Federal action 
significantly affecting the quality of the human environment within the 
meaning of NEPA and does not require an Environmental Assessment or an 
Environmental Impact Statement.

E. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, Section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; (3) provide a clear legal standard 
for affected conduct rather than a general standard; and (4) promote 
simplification and burden reduction. Section 3(b) of Executive Order 
12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; (6) specifies whether administrative proceedings are 
to be required before parties may file suit in court and, if so, 
describes those proceedings and requires the exhaustion of 
administrative remedies; and (7) addresses other important issues 
affecting clarity and general draftsmanship under any guidelines issued 
by the Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met, or it is unreasonable to meet one or more of them. DOE 
completed the required review and determined that, to the extent 
permitted by law, this proposed rule meets the relevant standards of 
Executive Order 12988.

F. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism'' (64 FR 43255, August 10, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. Agencies are required to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and carefully assess 
the necessity for such actions. The Executive Order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations. 65 FR 13735. DOE examined this SNOPR and tentatively 
determined that the proposed rule would not preempt State law and would 
not have a substantial direct effect on the States, the relationship 
between the national government and the States, or the distribution of 
power and responsibilities among the various levels of government. No 
further action is required by Executive Order 13132.

G. Review Under Executive Order 13175

    Under Executive Order 13175 (65 FR 67249, November 6, 2000) on 
``Consultation and Coordination with Indian Tribal Governments,'' DOE 
may not issue a discretionary rule that has ``Tribal'' implications and 
imposes substantial direct compliance costs on Indian Tribal 
governments. DOE determined the proposed rule in this SNOPR would not 
have such effects and Executive Order 13175 does not apply to this 
proposed rule.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L. 104-4) requires each Federal agency to assess the effects of a 
Federal regulatory action on State, local, and Tribal governments, and 
the private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 
1531)). For a proposed regulatory action likely to result in a rule 
that may cause the expenditure by State, local, and Tribal governments, 
in the

[[Page 57369]]

aggregate, or by the private sector of $100 million or more in any one 
year (adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) UMRA also requires a Federal agency to develop 
an effective process to permit timely input by elected officers of 
State, local, and Tribal governments on a proposed ``significant 
Federal intergovernmental mandate,'' and requires an agency plan for 
giving notice and opportunity for timely input to potentially affected 
small governments before establishing any requirements that might 
significantly or uniquely affect them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. (62 FR 12820) (This policy is also available at: 
www.energy.gov/gc/guidance-opinions). DOE examined the proposed rule 
according to UMRA and its statement of policy and determined the rule 
contains neither an intergovernmental mandate, nor a mandate that may 
result in the expenditure by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
year. Accordingly, no further assessment or analysis is required under 
UMRA.

I. Review Under Executive Order 12630

    DOE determined, under Executive Order 12630, ``Governmental Actions 
and Interference with Constitutionally Protected Property Rights'' 53 
FR 8859 (March 18, 1988), that this proposed rule would not result in 
any takings that might require compensation under the Fifth Amendment 
to the U.S. Constitution.

J. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to prepare and submit to the 
OMB a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1)(i) is a significant regulatory action under 
Executive Order 12866, or any successor order; and (ii) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (2) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. This SNOPR would not 
have a significant adverse effect on the supply, distribution, or use 
of energy and is therefore not a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

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

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. This SNOPR would not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE concluded 
it is not necessary to prepare a Family Policymaking Assessment.

L. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for Federal agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), 
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
    DOE reviewed this SNOPR under the OMB and DOE guidelines and 
concluded that it is consistent with applicable policies in those 
guidelines.

V. Public Participation--Submission of Comments

    DOE will accept comments, data, and information regarding this 
SNOPR no later than the date provided in the DATES section at the 
beginning of this document. Interested individuals are invited to 
participate in this proceeding by submitting data, views, or arguments 
with respect to the specific sections addressed in this proposed rule 
using the methods described in the ADDRESSES section at the beginning 
of this document.
    1. Submitting comments via www.regulations.gov. The 
www.regulations.gov web page will require you to provide your name and 
contact information. Your contact information will be viewable by DOE's 
Office of Worker Safety and Health Policy staff only. Your contact 
information will not be publicly viewable except for your first and 
last names, organization name (if any), and submitter representative 
name (if any). If your comment is not processed properly because of 
technical difficulties, DOE will use this information to contact you. 
If DOE cannot read your comment due to technical difficulties and 
cannot contact you for clarification, DOE may not be able to consider 
your comment. However, your contact information will be publicly 
viewable if you include it in the comment itself or in any documents 
attached to your comment. Any information that you do not want to be 
publicly viewable should not be included in your comment, nor in any 
document attached to your comment. Persons viewing comments will see 
only first and last names, organization names, correspondence 
containing comments, and any documents submitted with the comments.
    Do not submit to www.regulations.gov information for which 
disclosure is restricted by statute, such as trade secrets and 
commercial or financial information (hereinafter referred to as 
Confidential Business Information (CBI)). Comments submitted through 
www.regulations.gov cannot be claimed as CBI. Comments received through 
www.regulations.gov will waive any CBI claims for the information 
submitted. For information on submitting CBI, see the Confidential 
Business Information section.
    DOE processes submissions made through www.regulations.gov before 
posting. Normally, comments will be posted within a few days of being 
submitted. However, if large volumes of comments are being processed 
simultaneously, your comment may not be viewable for up to several 
weeks. Please keep the comment tracking number that www.regulations.gov 
provides after you have successfully uploaded your comment.
    2. Submitting comments via email or mail. Comments and documents 
submitted via email or mail will also be posted to www.regulations.gov. 
If you do not want your personal contact information to be publicly 
viewable, do not include it in your comment or any accompanying 
documents. Instead, provide your contact information in a cover letter. 
Include your first and last names, email address, telephone number, and 
optional mailing address. The cover letter will not be publicly 
viewable as long as it does not include any comments.

[[Page 57370]]

    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, WordPerfect, or text (ASCII) file format. Provide documents that 
are not secured, that are written in English, and that are free of any 
defects or viruses. Documents should not contain special characters or 
any form of encryption and, if possible, they should carry the 
electronic signature of the author.
    3. Confidential Business Information. Pursuant to the provisions of 
10 CFR 1004.11, any person submitting information or data he or she 
believes to be confidential and exempt by law from public disclosure 
should submit two well-marked copies: One copy of the document marked 
``CONFIDENTIAL'' including all the information believed to be 
confidential, and one copy of the document marked ``NON-CONFIDENTIAL'' 
with the information believed to be confidential deleted. Submit these 
documents via email to [email protected]. DOE will make its own 
determination about the confidential status of the information and 
treat it according to its determination.
    It is DOE's policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except information deemed to be 
exempt from public disclosure).
    4. Campaign form letters. Please submit campaign form letters by 
the originating organization in batches of between 50 to 500 form 
letters per PDF or as one form letter with a list of supporters' names 
compiled into one or more PDFs. This reduces comment processing and 
posting time.

VI. Approval by the Office of the Secretary of Energy

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

List of Subjects in 10 CFR Part 850

    Beryllium, Diseases, Hazardous substances, Lung diseases, 
Occupational safety and health, Reporting and recordkeeping 
requirements.

Signing Authority

    This document of the Department of Energy was signed on August 16, 
2023, by Jennifer Granholm, Secretary of Energy. That document with the 
original signature and date is maintained by DOE. For administrative 
purposes only, and in compliance with requirements of the Office of the 
Federal Register, the undersigned DOE Federal Register Liaison Officer 
has been authorized to sign and submit the document in electronic 
format for publication, as an official document of the Department of 
Energy. This administrative process in no way alters the legal effect 
of this document upon publication in the Federal Register.

    Signed in Washington, DC, on August 17, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons set forth in the preamble, the Department of Energy 
proposes to amend 10 CFR part 850 as set forth below.

PART 850--CHRONIC BERYLLIUM DISEASE PREVENTION PROGRAM

0
1. The authority citation for part 850 continues to read as follows:

    Authority:  42 U.S.C. 2201(i)(3), (p); 42 U.S.C. 2282c; 29 
U.S.C. 668; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq., E.O. 
12196, 3 CFR 1981 comp., at 145 as amended.


Sec.  850.11  [Amended]

0
2. Amend Sec.  850.11 by:
0
a. Removing the word ``level'' and adding in its place, the word, 
``limits'' in paragraph (b)(1); and
0
b. Removing the word ``limit'' and adding in its place, the word, 
``limits'' in paragraph (b)(3)(iv).
0
3. Revise Sec.  850.22 to read as follows:


Sec.  850.22  Permissible exposure limits.

    (a) Time-weighted average (TWA) permissible exposure limit (PEL). 
Employers must ensure that no worker is exposed to an airborne 
concentration of beryllium in excess of 0.2 [mu]g/m\3\, calculated as 
an 8-hour TWA exposure, as measured in the worker's breathing zone by 
personal monitoring.
    (b) Short-term exposure limit (STEL). Employers must ensure that no 
worker is exposed to an airborne concentration of beryllium in excess 
of 2.0 [micro]g/m3 as determined over a sampling period of 15 minutes 
and measured in the worker's breathing zone by personal monitoring.
0
4. Amend Sec.  850.23 by revising paragraph (a) to read as follows:


Sec.  850.23  Action level.

    (a) Employers must include in their CBDPPs an action level that is 
no greater than 0.1 [micro]g/m\3\, calculated as an 8-hour TWA 
exposure, as measured in the worker's breathing zone by personal 
monitoring.
* * * * *
0
5. Amend Sec.  850.25 by revising paragraph (a) to read as follows:


Sec.  850.25  Exposure reduction and minimization.

    (a) Employers must ensure that no worker is exposed above the 
exposure limits prescribed in Sec.  850.22.
* * * * *
[FR Doc. 2023-18082 Filed 8-22-23; 8:45 am]
BILLING CODE 6450-01-P