Unknown. Final rule

7,543 words·~34 min read·/register/2023/12/15/2023-27615·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2023-12-15.xml --- 88 240 Friday, December 15, 2023 Contents Agricultural Marketing Agricultural Marketing Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 86873-86874 2023-27534 Agriculture Agriculture Department See Agricultural Marketing Service See Food Safety and Inspection Service See Forest Service AIRFORCE Air Force Department NOTICES Environmental Impact Statements;

Availability, etc.: F-15 Beddown and Infrastructure Upgrades at Andersen Air Force Base, Guam, 86884-86885 2023-27166 Antitrust Division Antitrust Division NOTICES Changes under the National Cooperative Research and Production Act: 1Edtech Consortium, Inc., 86936-86937 2023-27621 AI Infrastructure Alliance, Inc., 86931 2023-27609 Alliance for OpenUSD Series LLC, 86939-86940 2023-27580 America's DataHub Consortium, 86934-86935 2023-27563 Bytecode Alliance Foundation, 86936 2023-27562 Consortium for Rare Earth Technologies, 86933-86934 2023-27608 Cooperative Research Group on Numerical Propulsion System Simulation, 86940 2023-27624 Countering Weapons of Mass Destruction, 86929-86930 2023-27596 Decentralized Storage Alliance Association, 86931-86932 2023-27586 Defense Electronics Consortium, 86935 2023-27603 Electrified Vehicle and Energy Storage Evaluation, 86930-86931 2023-27590 Information Warfare Research Project Consortium, 86937 2023-27568 Integrated Photonics Institute for Manufacturing Innovation Operating under the Name of the American Institute for Manufacturing Integrated Photonics, 86938-86939 2023-27564 Maritime Sustainment Technology and Innovation Consortium, 86936 2023-27601 Medical CBRN Consortium, 86938 2023-27575 Medical Technology Enterprise Consortium, 86932-86933 2023-27578 MLCommons Association, 86939 2023-27587 National Armaments Consortium, 86931 2023-27594 National Fire Protection Association, 86937 2023-27556 National Spectrum Consortium, 86934 2023-27589 Naval Surface Technology and Innovation Consortium, 86934 2023-27605 Open Grid Alliance, Inc., 86930 2023-27591 Open Source Imaging Consortium, Inc., 86933 2023-27572 PXI Systems Alliance, Inc., 86935 2023-27622 Resilient Infrastructure and Secure Energy Consortium, 86929 2023-27559 Rust Foundation, 86935-86936 2023-27560 Senior Healthcare Innovation Consortium, 86930 2023-27565 Telemanagement Forum, 86932 2023-27584 The Open Group, LLC, 86940-86941 2023-27558 Training and Readiness Accelerator II, 86938 2023-27607 Undersea Technology Innovation Consortium, 86939 2023-27599 Utility Broadband Alliance, Inc., 86935 2023-27613 Z-Wave Alliance, Inc., 86933 2023-27583 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 86901-86904 2023-27549 2023-27550 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 86905-86906 2023-27614 Guidance: Inflation Reduction Act, 86904-86905 2023-27551 Coast Guard Coast Guard RULES Drawbridge Operations: Atlantic Intracoastal Waterway, Savannah, GA, 86822-86823 2023-27617 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration See National Telecommunications and Information Administration Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List;

Additions and Deletions, 86883-86884 2023-27576 2023-27577 Community Development Community Development Financial Institutions Fund NOTICES Funds Availability, 87050-87052 2023-27597 2023-27598 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Fair Housing Home Loan Data System Regulation, 87052-87053 2023-27517 Copyright Office Copyright Office, Library of Congress NOTICES Intent to Audit, 86946-86947 2023-27554 Defense Department Defense Department See Air Force Department See Navy Department Drug Drug Enforcement Administration NOTICES Decision and Order:

APEXX Pharmacy, LLC, 86941-86944 2023-27524 Gary R. Wisner, M.D., 86944-86945 2023-27522 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Grant Performance Report Form, 86887-86888 2023-27533 Election Election Assistance Commission NOTICES Meetings; Sunshine Act, 86888 2023-27755 Energy Department Energy Department See Federal Energy Regulatory Commission RULES Worker Safety and Health Program, 86811-86816 2023-27615 PROPOSED RULES Energy Conservation Program:

Standards for Expanded Scope Electric Motors, 87062-87153 2023-26531 Environmental Protection Environmental Protection Agency PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; Sacramento Metropolitan Air Quality Management District, 86870-86872 2023-27514 NOTICES Clean Air Act Operating Permit Program: Order on Petition for Objection to State Operating Permit for Chicago Department of Aviation, Cook County, IL, 86894 2023-27553 Environmental Assessments;

Availability, etc., 86896 2023-27642 Pesticide Product Registration: Applications for New Uses November 2023, 86896-86897 2023-27592 Risk Evaluations for Chemical Substances, 86894-86896 2023-27600 Export Import Export-Import Bank NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Notice of Claim and Proof of Loss, Working Capital Guarantee, 86897 2023-27612 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Diamond Aircraft Industries Inc.

Airplanes, 86819-86821 2023-27523 Viking Air Limited (Type Certificate Previously Held by Bombardier Inc. and de Havilland, Inc.) Airplanes, 86816-86819 2023-27495 PROPOSED RULES Airworthiness Directives: Airbus SAS Airplanes, 86840-86844 2023-27386 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Flight Data Center Web Portal, 87047 2023-27595 Airport Property: Kearney Municipal Airport, Kearney, NE, 87046-87047 2023-27541 Random Drug and Alcohol Testing Percentage Rates of Covered Aviation Employees for the Period January 1, 2024 to December 31, 2024;

Correction, 87046 2023-27501 Federal Communications Federal Communications Commission RULES Emergency Alert System: Wireless Emergency Alerts, 86824-86837 2023-27236 Federal Election Federal Election Commission NOTICES Filing Dates for the New York Special Election in the 3rd Congressional District, 86897-86898 2023-27582 Federal Emergency Federal Emergency Management Agency NOTICES Flood Hazard Determinations, 86915-86921 2023-27631 2023-27635 Federal Energy Federal Energy Regulatory Commission NOTICES Application:

Fiske Hydro, Inc., 86888 2023-27520 Combined Filings, 86890-86891, 86893-86894 2023-27574 2023-27579 Environmental Assessments; Availability, etc.: Equitrans, LP, Swarts and Hunters Cave Well Replacement Project, 86889-86890 2023-27519 Institution of Section 206 Proceeding and Refund Effective Date: Shady Oaks Wind 2, LLC, 86889 2023-27566 Privacy Act; Systems of Records, 86891-86893 2023-27573 Federal Highway Federal Highway Administration NOTICES Final Federal Agency Action:

Proposed Highway Projects in Texas, 87047-87049 2023-27546 Federal Reserve Federal Reserve System NOTICES Change in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 86898 2023-27512 Financial Crimes Financial Crimes Enforcement Network NOTICES Request for Membership Application: Bank Secrecy Act Advisory Group, 87053-87054 2023-27620 Fish Fish and Wildlife Service NOTICES Environmental Impact Statements; Availability, etc.: Highway Right-of-Way Application and Associated Amendment of an Incidental Take Permit, Washington County, UT;

Correction, 86926 2023-27545 Food and Drug Food and Drug Administration NOTICES Final Debarment Order: Adam Michael Nagy, 86906-86907 2023-27557 Food Safety Food Safety and Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Web-Based Surveys, 86874-86877 2023-27602 Foreign Assets Foreign Assets Control Office NOTICES Sanctions Action, 87054-87056 2023-27646 Forest Forest Service NOTICES New Recreation Fee Sites, 86877 2023-27515 Proposed New Recreation Fee Sites, 86877-86878 2023-27511 General Services General Services Administration NOTICES Hearings, Meetings, Proceedings etc.:

Federal Secure Cloud Advisory Committee, 86899 2023-27537 Request for Information: Computers for Veterans and Students Act, 86899-86901 2023-27536 Health and Human Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Maternal Health Portfolio Evaluation Design, 86910-86911 2023-27567 Hearings, Meetings, Proceedings etc.: Advisory Committee on Training and Primary Care Medicine and Dentistry, 86909 2023-27619 Council on Graduate Medical Education, 86908 2023-27500 National Advisory Council on Nurse Education and Practice, 86907-86908 2023-27618 National Advisory Council on the National Health Service Corps, 86909-86910 2023-27604 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency See U.S.

Citizenship and Immigration Services See U.S. Customs and Border Protection Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Elements for the Annual Moving to Work Plan and Annual Moving to Work Report, 86923-86924 2023-27516 Indian Affairs Indian Affairs Bureau NOTICES Indian Gaming: Extension of Tribal-State Class III Gaming Compacts in California, 86924-86925 2023-27539 Industry Industry and Security Bureau RULES Additional Export Controls:

Certain Advanced Computing Items; Supercomputer and Semiconductor End Use; Updates and Corrections; Semiconductor Manufacturing Items, 86821-86822 2023-27588 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau See National Park Service See Ocean Energy Management Bureau Internal Revenue Internal Revenue Service PROPOSED RULES Advanced Manufacturing Production Credit, 86844-86868 2023-27498 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews:

Certain Frozen Warmwater Shrimp from the People's Republic of China, 86878-86880 2023-27548 Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China, 86880-86881 2023-27547 International Trade Com International Trade Commission NOTICES Recent Trends in U.S. Services Trade, 2024 Annual Report, 86928-86929 2023-27478 Justice Department Justice Department See Antitrust Division See Drug Enforcement Administration Labor Department Labor Department See Labor Statistics Bureau Labor Statistics Labor Statistics Bureau NOTICES Requests for Nominations:

Technical Advisory Committee, 86945-86946 2023-27538 Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Draft Alaska Native Claims Settlement Act 17(d)(1) Withdrawals Environmental Impact Statement, Alaska, 86925-86926 2023-27647 Highway Right-of-Way Application and Associated Amendment of an Incidental Take Permit, Washington County, UT; Correction, 86926 2023-27545 Library Library of Congress See Copyright Office, Library of Congress National Institute National Institutes of Health NOTICES Hearings, Meetings, Proceedings etc.:

National Institute of Mental Health, 86912 2023-27518 National Institute on Alcohol Abuse and Alcoholism, 86911-86912 2023-27581 National Institute on Drug Abuse, 86911 2023-27540 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Summer Flounder Fishery; Quota Transfer from North Carolina to Virginia, 86837-86838 2023-27625 Fisheries off West Coast States: Coastal Pelagic Species Fisheries; Biennial Specifications; 2023-2024 and 2024-2025 Specifications for Pacific Mackerel, 86838-86839 2023-27532 NOTICES Hearings, Meetings, Proceedings etc.:

Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops, 86881-86882 2023-27627 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Park Service Creel Survey, 86926-86927 2023-27585 National Science National Science Foundation NOTICES Hearings, Meetings, Proceedings etc. Committee on Equal Opportunities in Science and Engineering, 86947 2023-27542 Hearings, Meetings, Proceedings etc.:

Networking and Information Technology Research and Development Program, 86947 2023-27648 National Telecommunications National Telecommunications and Information Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Middle Mile Grant Program Reporting Requirements, 86883 2023-27610 Navy Navy Department NOTICES Environmental Impact Statements; Availability, etc.: Hawaii-California Training and Testing Activities, 86885-86887 2023-26905 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: OCFO Invitational Traveler Request Form, 86948-86949 2023-27509 Ocean Energy Management Ocean Energy Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Sunrise Wind, LLC's Proposed Sunrise Wind Farm Offshore New York, Massachusetts, and Rhode Island, 86927-86928 2023-27561 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 86949-86950 2023-27543 2023-27623 Postal Service Postal Service PROPOSED RULES New Mailing Standards for Hazardous Materials Outer Packaging and Nonregulated Toxic Materials, 86868-86870 2023-27643 Securities Securities and Exchange Commission RULES Security-Based Swap Execution and Registration and Regulation of Security-Based Swap Execution Facilities, 87156-87328 2023-24587 NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 86950-86951, 86979, 86982-86983 2023-27569 2023-27570 2023-27571 Self-Regulatory Organizations; Proposed Rule Changes: Cboe EDGX Exchange, Inc., 87012-87017 2023-27528 Miami International Securities Exchange, LLC, 86983-87009 2023-27529 MIAX Emerald, LLC, 87020-87044 2023-27530 MIAX PEARL, LLC, 86951-86979 2023-27531 Nasdaq GEMX, LLC, 87017-87020 2023-27525 Nasdaq ISE, LLC, 86979-86982 2023-27527 Nasdaq MRX, LLC, 87009-87012 2023-27526 Small Business Small Business Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 87044 2023-27638 Surface Transportation Surface Transportation Board NOTICES Exemption: Acquisition and Operation; Lakeshore Terminal Railroad LLC, Track in Lake County, IN, 87044-87045 2023-27636 Continuance in Control; Patriot Rail Company LLC, SteelRiver Transport Ventures LLC, et al. and Lakeshore Terminal Railroad LLC, 87045-87046 2023-27637 Lease Renewal; Iowa Northern Railway Co., Rail Line of North Central Iowa Rail Corridor, LLC, 87045 2023-27634 Transportation Department Transportation Department See Federal Aviation Administration See Federal Highway Administration Treasury Treasury Department See Community Development Financial Institutions Fund See Comptroller of the Currency See Financial Crimes Enforcement Network See Foreign Assets Control Office See Internal Revenue Service NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Coronavirus Capital Projects Fund, 87058-87059 2023-27639 State Small Business Credit Initiative, 87056-87057 2023-27535 U.S. Income Tax Return for Individual Taxpayers, 87057-87058 2023-27645 U.S. Tax-Exempt Organization Return, 87059-87060 2023-27644 U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Carrier Documentation, 86922-86923 2023-27633 Petition for Qualifying Family Member of a U-1 Nonimmigrant, 86921-86922 2023-27629 Customs U.S.

Customs and Border Protection NOTICES Mobile Collections and Receipts (Implementation of Phase Two), 86912-86915 2023-27626 Separate Parts In This Issue Part II Energy Department, 87062-87153 2023-26531 Part III Securities and Exchange Commission, 87156-87328 2023-24587 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription. 88 240 Friday, December 15, 2023 Rules and Regulations DEPARTMENT OF ENERGY 10 CFR Part 851 [EHSS-RM-20-WSHP] RIN 1992-AA61 Worker Safety and Health Program AGENCY:

Office of Environment, Health, Safety and Security, U.S. Department of Energy. ACTION: Final rule. SUMMARY: On September 2, 2022, the U.S. Department of Energy (DOE or the Department) published a notice of proposed rulemaking

(NOPR)for public comment in which it proposed to amend its current worker safety and health program regulation. In this final rule, DOE is adopting the amendments proposed in the NOPR without change. The amendments make corrections to the worker safety and health program regulation requirements related to beryllium and beryllium compounds for purposes of accuracy and consistency with DOE's Chronic Beryllium Disease Prevention Program regulation and clarify that DOE did not intend to adopt the 2016 American Conference of Governmental Industrial Hygienists threshold limit value for beryllium and beryllium compounds. In addition, in this final rule DOE is correcting minor typographical errors identified in the regulation. DATES: This rule is effective January 16, 2024. The incorporation by reference of certain publications listed in this rule was approved by the Director of the Federal Register on January 17, 2018. FOR FURTHER INFORMATION CONTACT: Mr. James Dillard, U.S. Department of Energy, Office of Environment, Health, Safety and Security, Mailstop EHSS-11, 1000 Independence Ave. SW, Washington, DC 20585, Telephone: 301-903-1165, or by email at: *james.dillard@hq.doe.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. Authority and Background A. Authority B. Background II. Discussion of Public Comments and Rule Provisions A. Section 851.2 Exclusions B. Section 851.23 Safety and Health Standards C. Minor Typographical Corrections D. List of Commenters III. Procedural Issues and Regulatory Review A. Review Under Executive Orders 12866, 13563 and 14094 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 12988 F. Review Under Executive Order 13132 G. Review Under Executive Order 13175 H. Review Under the Unfunded Mandates Reform Act of 1995 I. Review Under Executive Order 12630 J. Review Under Executive Order 13211 K. Review Under the Treasury and General Government Appropriations Act, 1999 L. Review Under the Treasury and General Government Appropriations Act, 2001 M. Materials Incorporated by Reference N. Congressional Notification IV. Approval by the Office of the Secretary of Energy I. Authority and Background A. Authority DOE has broad authority to regulate worker safety and health with respect to its nuclear and nonnuclear functions pursuant to the Atomic Energy Act of 1954 (AEA), 42 U.S.C. 2011 *et seq.;* the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5801 *et seq.;* and the Department of Energy Organization Act (DOEOA), 42 U.S.C. 7101 *et seq.* Specifically, the AEA authorized and directed the Atomic Energy Commission

(AEC)to protect health and promote safety during the performance of activities under the AEA. ( *See* sec. 31a.(5) of the AEA, 42 U.S.C. 2051(a)(5); sec. 161b. of the AEA, 42 U.S.C. 2201(b); sec. 161i.(3) of the AEA, 42 U.S.C. 2201(i)(3); and sec. 161p. of the AEA, 42 U.S.C. 2201(p)). In addition, Congress amended the AEA in 2002 by adding section 234C, 42 U.S.C. 2282c, which, among other things, directed DOE to “promulgate regulations for industrial and construction health and safety at Department of Energy facilities that are operated by contractors covered by agreements of indemnification under section 2210(d) of” title 42 of the United States Code. In 1974, the ERA abolished the AEC and replaced it with the Nuclear Regulatory Commission (NRC), which became responsible for the licensing of commercial nuclear activities, and the Energy Research and Development Administration (ERDA), which became responsible for the other functions of the AEC under the AEA, as well as several nonnuclear functions. The ERA authorized ERDA to use the regulatory authority under the AEA to carry out its nuclear and nonnuclear functions, including those functions that might become vested in ERDA in the future. ( *See* sec. 105(a) of the ERA, 42 U.S.C. 5815(a); and sec. 107 of the ERA, 42 U.S.C. 5817). In 1977, the DOEOA transferred the functions and authorities of ERDA to DOE. ( *See* sec. 301(a) of the DOEOA, 42 U.S.C. 7151(a); sec. 641 of the DOEOA, 42 U.S.C. 7251; and sec. 644 of the DOEOA, 42 U.S.C. 7254). B. Background In this final rule, DOE is adopting the amendments proposed in the NOPR published on September 2, 2022 (87 FR 54178) without any substantive change. The amendments make corrections to the worker safety and health program regulation requirements related to beryllium and beryllium compounds for purposes of accuracy and consistency with DOE's Chronic Beryllium Disease Prevention Program regulation and clarify that DOE did not intend to adopt the 2016 American Conference of Governmental Industrial Hygienists (ACGIH®) threshold limit value (TLV®) for beryllium and beryllium compounds. On February 9, 2006, when DOE promulgated 10 CFR part 851, *Worker Safety and Health Program* (71 FR 6858), it adopted several industry standards and guidelines to establish the baseline industrial and construction safety and health requirements for DOE workplace operations. The standards and guidelines with which DOE contractors performing work on DOE sites were required to comply included certain Occupational Safety and Health Administration

(OSHA)regulations and TLVs® published by the ACGIH®. 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. 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 § 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® TLVs® in the “ *Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices* ” (2016). The TLVs® included those for beryllium and beryllium compounds. On September 2, 2022, the Department published the NOPR (87 FR 54178) which proposed to make amendments to 10 CFR part 851 with respect to the requirements for beryllium and beryllium compounds that would:

(1)ensure accuracy and consistency with 10 CFR part 850, *Chronic Beryllium Disease Prevention Program;*

(2)clarify that in adopting certain OSHA regulations and ACGIH® TLVs® in 10 CFR part 851, DOE did not intend to adopt OSHA's ancillary beryllium safety requirements and ACGIH® values for beryllium and beryllium compounds; and

(3)clarify in § 851.2(d) that 10 CFR part 851 does not require compliance by DOE contractors with any OSHA requirements for beryllium or beryllium compounds except as provided in 10 CFR part 850. DOE stated in the NOPR that it believes these corrections are necessary to avoid potential conflicts with DOE's beryllium safety and health requirements in 10 CFR part 850 and to avoid potential confusion among DOE contractors as to the requirements with which they must comply at DOE sites. The NOPR also proposed to make minor corrections to clarify the meaning of § 851.23(b) regarding contractor compliance with additional safety and health requirements that are necessary to protect workers at their covered workplace. II. Discussion of Public Comments and Rule Provisions The Department's NOPR invited public comments on the proposal and provided a public comment period that ended on October 3, 2022. The Department received three sets of comments, which were all in support of the proposed changes to the rule. Copies of the comments are in the docket for this rulemaking. To access the docket, which includes **Federal Register** notices, comments, and other supporting documents/materials, go to *www.regulations.gov/docket/DOE-HQ-2022-0030.* All documents in the docket are listed in the *www.regulations.gov* index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available. In the docket every submission was assigned a document identification (Document ID) number that consists of the docket number (DOE-HQ-2022-0030) followed by an additional four-digit number. For example, the Document ID number for DOE's NOPR is DOE-HQ-2022-0030-0001. When citing commenters in the docket, DOE includes the term “Document ID” followed by the last four digits of the Document ID number. In this section, DOE discusses the comments it received, the final rule provisions, and the minor typographical errors in §§ 851.3, 851.7 and 851.23(a)(2) that DOE identified since publication of the NOPR and will be correcting in this final rule. In general, the commenters (Document ID 0002, 0003, 0004) agreed with and supported the proposed amendments to the rule. They appreciated the Department's efforts to protect its workers and to provide a safe and healthful workplace. A. Section 851.2 Exclusions In the NOPR, DOE stated the current § 851.2(d) provides that part 851 does not require compliance with any OSHA beryllium requirement except for any permissible exposure limit for beryllium in 29 CFR 1910.1000. DOE proposed text in § 851.2(d) that would modify the language by instead referring to DOE's beryllium rule and stating that part 851 does not require compliance with any OSHA requirements for beryllium and beryllium compounds except as provided in 10 CFR part 850, *Chronic Beryllium Disease Prevention Program.* DOE noted that 10 CFR 850.22, *Permissible exposure limit,* states that the responsible employer must assure that no worker is exposed to an airborne concentration of beryllium greater than the permissible exposure limit established in 29 CFR 1910.1000, as measured in the worker's breathing zone by personal monitoring, or a more stringent time weighted average permissible exposure limit that may be promulgated by OSHA as a health standard. DOE did not receive any specific comments on this section, and DOE has not changed the language as proposed in the NOPR. Final § 851.2(d) states that this part does not require compliance with any OSHA requirements for beryllium or beryllium compounds except as provided in 10 CFR part 850, “Chronic Beryllium Disease Prevention Program.” This language ensures consistency between the language in 10 CFR parts 850 and 851 with respect to beryllium and beryllium compounds. B. Section 851.23 Safety and Health Standards In the NOPR, DOE stated that § 851.23(a) currently requires contractors to comply with safety and health standards and guidelines that are applicable to the hazards at their covered workplace, including those identified at paragraphs (a)(3), (a)(4), and (a)(7) of that section. DOE proposed to change § 851.23(a) to clarify that, while DOE currently adopts OSHA's permissible exposure limit for beryllium, it is not DOE's intention to adopt OSHA's remaining beryllium requirements in 29 CFR parts 1910, 1915, and 1926. One commenter (Document ID 0003) specifically mentioned that it supported the proposed changes to § 851.23(a) and encouraged DOE to work with its stakeholders regarding OSHA's remaining beryllium requirements in 29 CFR part 1910. DOE appreciates this comment and has adopted the proposed changes to this paragraph in this final rule. In this final rule, DOE adopts the changes to § 851.23(a)(3), (4), and

(7)that were proposed in the NOPR. Final § 851.23(a)(3) corrects the reference to OSHA's regulations and refers instead to 29 CFR part 1910, *Occupational Safety and Health Standards,* excluding 29 CFR 1910.1096, *Ionizing Radiation;* 29 CFR 1910.1000, *Air Contaminants,* Tables Z-1 and Z-2, as they relate to beryllium and beryllium compounds; and 29 CFR 1910.1024, *Beryllium.* Final § 851.23(a)(4) refers to 29 CFR part 1915, *Occupational Safety and Health Standards for Shipyard Employment* , except for 29 CFR 1915.1024, *Beryllium.* Final § 851.23(a)(7) refers to 29 CFR part 1926, *Safety and Health Regulations for Construction* , except for 29 CFR 1926.1124, *Beryllium.* In the NOPR, DOE noted that in 2017, DOE adopted and incorporated by reference the ACGIH® *Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices,* (2016), but did not intend to adopt the ACGIH® TLV® for beryllium and beryllium compounds. DOE proposed to amend § 851.23(a)(9) to exclude the ACGIH® TLV® for beryllium and beryllium compounds. In addition, DOE noted that § 851.23(a)(9) only referred to two of OSHA's health standards for beryllium and beryllium compounds, 29 CFR part 1910 (general industry) and 29 CFR part 1926 (construction). DOE proposed to include in § 851.23(a)(9) a reference to 29 CFR part 1915, the OSHA standard for shipyards. One commenter (Document ID 0003) specifically mentioned that it supported DOE's clarification that it did not intend to adopt the ACGIH® TLV® for beryllium and beryllium compounds. DOE agrees with this commenter and has clarified the language in final § 851.23(a)(9). DOE adopts the language in final § 851.23(a)(9) proposed in the NOPR, with minor changes in phrasing to improve clarity. As stated in the NOPR, it is DOE's intent in § 851.27(b)(1) that the incorporation by reference of ACGIH®, *Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices,* (2016), excludes beryllium and beryllium compounds. In the NOPR, DOE proposed minor editorial changes to § 851.23(b) to clarify that nothing in part 851 relieves contractors from the responsibility to comply with any additional safety and health requirements that are necessary to protect the safety and health of workers. One commenter (Document ID 0003) specifically mentioned that it supported the proposed changes to § 851.23(b). DOE appreciates the commenter's support for the proposed changes and has adopted the proposed changes to the paragraph in this final rule. C. Minor Typographical Corrections In addition to the changes proposed in the NOPR, DOE is correcting minor typographical errors in §§ 851.3, 851.7(b) and 851.23(a)(2). DOE is revising § 851.3 to correct the spelling of the word “contractor” in the definition of “Final notice of violation”. DOE is revising § 851.7(b) to correct the spelling of the word “envelope”. DOE is revising § 851.23(a)(2) to correct the reference to “Parts” and add in its place “Part” followed by specific section numbers. D. List of Commenters Document ID Commenter Affiliation 0002 Thiên Phúc Lê 0003 Steve Sallman United Steelworkers. 0004 Anonymous Anonymous. III. Procedural Issues and Regulatory Review A. Review Under Executive Orders 12866, 13563, and 14094 Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by Executive Order 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) and amended by Executive Order 14094, “Modernizing Regulatory Review,” 88 FR 21879 (April 11, 2023), requires agencies, to the extent permitted by law, to

(1)propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify);

(2)tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations;

(3)select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4)to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and

(5)identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs

(OIRA)has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this regulatory action is consistent with these principles. Section 6(a) of Executive Order 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA determined that this regulatory action does not constitute a “significant regulatory action” within the scope of Executive Order 12866. Accordingly, this action is not subject to review by OIRA under that Executive Order. B. Review Under the Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 *et seq.* ) requires that an agency prepare a final regulatory flexibility analysis for any final rule where the agency was first required by law to publish a proposed rule for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities (5 U.S.C. 605(b)). As required by Executive Order 13272, *Proper Consideration of Small Entities in Agency Rulemaking,* 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE made its procedures and policies available on the Office of the General Counsel's website: *www.energy.gov/gc/office-general-counsel.* This final rule updates DOE's worker safety and health program regulation and clarifies DOE's ongoing intent to exempt DOE contractors from specified OSHA regulations and the ACGIH® TLV® pertaining to beryllium and beryllium compounds. This rule applies only to activities conducted by DOE's contractors. DOE expects that any potential economic impact of this rule on small businesses will be minimal because work performed at DOE sites is under contracts with DOE or the prime contractor at the site. DOE contractors are reimbursed through their contracts for the costs of complying with worker safety and health program requirements. Therefore, they will not be adversely impacted by the requirements in this final rule. For these reasons, DOE certifies that this final rule, if promulgated, will not have a significant economic impact on a substantial number of small entities, and therefore, no regulatory flexibility analysis was prepared for this final rule. C. Review Under the Paperwork Reduction Act of 1995 This final rule does not impose a collection of information requirement subject to review and approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ). D. Review Under the National Environmental Policy Act of 1969 Pursuant to the National Environmental Policy Act of 1969 (NEPA), DOE analyzed this final action in accordance with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). DOE determined that this rule is covered under the categorical exclusion found in DOE's NEPA regulations at paragraph A.5 of appendix A to subpart D, 10 CFR part 1021, because it is a rulemaking that interprets or amends an existing rule or regulation that does not change the environmental effect of the rule. *See* 10 CFR 1021.410. Therefore, DOE determined that this final rule is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA and does not require an Environmental Assessment or an Environmental Impact Statement. E. Review Under Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, Section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements:

(1)eliminate drafting errors and ambiguity;

(2)write regulations to minimize litigation;

(3)provide a clear legal standard for affected conduct rather than a general standard; and

(4)promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that executive agencies make every reasonable effort to ensure that the regulation:

(1)clearly specifies the preemptive effect, if any;

(2)clearly specifies any effect on existing Federal law or regulation;

(3)provides a clear legal standard for the affected conduct while promoting simplification and burden reduction;

(4)specifies the retroactive effect, if any;

(5)adequately defines key terms;

(6)specifies whether administrative proceedings are to be required before parties may file suit in court and, if so, describes those proceedings and requires the exhaustion of administrative remedies; and

(7)addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of the standards. DOE completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988. F. Review Under Executive Order 13132 Executive Order 13132, “Federalism,” 64 FR 43255 (August 10, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE examined this final rule and determined that it will not preempt State law and will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132. G. Review Under Executive Order 13175 Under Executive Order 13175 (65 FR 67249, November 9, 2000) on “Consultation and Coordination with Indian Tribal Governments,” DOE may not issue a discretionary rule that has “Tribal” implications and imposes substantial direct compliance costs on Indian Tribal governments unless DOE provides funds necessary to pay the costs of the Tribal governments or consults with Tribal officials before promulgating the rule. DOE determined the final rule will not have such effects and concluded Executive Order 13175 does not apply to this final rule. H. Review Under the Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act

(UMRA)of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of a Federal regulatory action on State, local, and Tribal governments, and the private sector. (Pub. L. 104-4, sec. 201 *et seq.* (codified at 2 U.S.C. 1531 *et seq.* )). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)). UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant Federal intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. (62 FR 12820) (This policy is also available at: *www.energy.gov/gc/guidance-opinions* under “Guidance & Opinions” (Rulemaking)). DOE examined this final rule according to UMRA and its statement of policy and determined the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year. Accordingly, no further assessment or analysis is required under UMRA. I. Review Under Executive Order 12630 DOE determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this final regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution. J. Review Under Executive Order 13211 Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the OIRA, which is part of OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1)(i) is a significant regulatory action under Executive Order 12866, or any successor order; and

(ii)is likely to have a significant adverse effect on the supply, distribution, or use of energy, or

(2)is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This final rule is not a significant regulatory action under Executive Order 12866 and DOE has concluded that this final rule will not have a significant adverse effect on the supply, distribution, or use of energy. Therefore, this final rule is not a significant energy action, and accordingly, DOE has not prepared a Statement of Energy Effects. K. Review Under the Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being (5 U.S.C. 601, note). This final rule will not impact the autonomy or integrity of the family as an institution. Accordingly, DOE concluded it is not necessary to prepare a Family Policymaking Assessment. L. Review Under the Treasury and General Government Appropriations Act, 2001 Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). Pursuant to OMB Memorandum M-19-15, *Improving Implementation of the Information Quality Act* (April 24, 2019), DOE published updated guidelines which are available at: *www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf.* DOE reviewed this final rule under the OMB and DOE guidelines and concluded that it is consistent with applicable policies in those guidelines. M. Materials Incorporated by Reference DOE is excluding beryllium and beryllium compounds from its adoption of the TLVs® for chemical substances and physical agents and biological exposure indices published by the ACGIH® titled *Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices,* (2016), the currently approved version for incorporation by reference. Copies of the ACGIH® TLVs® are available on ACGIH®'s website at: *www.acgih.org.* N. Congressional Notification As required by 5 U.S.C. 801(2), DOE will submit to Congress a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this rulemaking. The report will state it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2). IV. Approval by the Office of the Secretary of Energy The Secretary of Energy has approved publication of this final rule. List of Subjects in 10 CFR Part 851 Federal buildings and facilities, Hazardous substances, Incorporation by reference, Occupational safety and health, Penalties, Reporting and recordkeeping requirements, Safety. Signing Authority This document of the Department of Energy was signed on December 8, 2023, by Jennifer Granholm, Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the **Federal Register** . Signed in Washington, DC, on December 12, 2023. Treena V. Garrett, Federal Register Liaison Officer, U.S. Department of Energy. For the reasons set forth in the preamble, the Department of Energy amends part 851 of chapter III of title 10 of the Code of Federal Regulations as set forth below: PART 851—WORKER SAFETY AND HEALTH PROGRAM 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. 2. Amend § 851.2 by revising paragraph

(d)to read as follows: § 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.” § 851.3 [Amended] 3. Amend § 851.3 by removing the word “contactor” and adding in its place the word “contractor” in the definition for “final notice of violation.” § 851.7 [Amended] 4. Amend § 851.7(b) by removing the word “envelop” and adding in its place the word “envelope”. 5. Amend § 851.23 by revising paragraphs (a)(2), (3), (4), (7), and

(9)and

(b)to read as follows: § 851.23 Safety and health standards.

(a)* * *

(2)Title 29 CFR, part 1904, “Recording and Reporting Occupational Injuries and Illnesses”, §§ 1904.4 through 1904.11, 1904.29 through 1904.33, and 1904.46.

(3)Title 29 CFR, part 1910, “Occupational Safety and Health Standards,” excluding 29 CFR 1910.1096, “Ionizing Radiation”; 29 CFR 1910.1000, “Air Contaminants,” Tables Z-1 and Z-2, as they relate to beryllium and beryllium compounds; and 29 CFR 1910.1024, “Beryllium.”

(4)Title 29 CFR, part 1915, “Occupational Safety and Health Standards for Shipyard Employment,” except for 29 CFR 1915.1024, “Beryllium.”

(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®), *Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices,*

(2016)(incorporated by reference, see § 851.27), excluding the threshold limit values (TLVs®) for beryllium and beryllium compounds, when the ACGIH® TLVs® 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® TLVs® 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. 6. Amend § 851.27 by revising paragraph

(a)to read as follows: § 851.27 Materials incorporated by reference.

(a)Certain material is incorporated by reference into this subpart with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the U.S. Department of Energy

(DOE)must publish a document in the **Federal Register** and the material must be available to the public. All approved incorporation by reference

(IBR)material is available for inspection at DOE and at the National Archives and Records Administration (NARA). Contact DOE: the U.S. Department of Energy, Office of Environment, Health, Safety and Security, Office of Worker Safety and Health Policy, Mailstop EHSS-11, 1000 Independence Ave. SW, Washington, DC 20585;

(301)903-1165. For information on the availability of this material at NARA, visit *www.archives.gov/federal-register/cfr/ibr-locations* or email: *fr.inspection@nara.gov.* The material may be obtained from the sources in the following paragraphs of this section. [FR Doc. 2023-27615 Filed 12-14-23; 8:45 am]

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