[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]
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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]
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