[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)]
[Rules and Regulations]
[Pages 19936-19949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09306]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2018-0003]
RIN 1218-AB76


Revising the Beryllium Standard for General Industry

AGENCY: Occupational Safety and Health Administration (OSHA), 
Department of Labor.

ACTION: Direct final rule; request for comment.

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SUMMARY: On January 9, 2017, the Occupational Safety and Health 
Administration (OSHA) issued a final rule adopting a comprehensive 
general industry standard for exposure to beryllium and beryllium 
compounds. In this Direct Final Rule (DFR), OSHA is adopting a number 
of clarifying amendments to address the application of the standard to 
materials containing trace amounts of beryllium. OSHA believes this 
rule will maintain safety and health protections for workers while 
reducing the burden to employers of complying with the current rule.

DATES: This DFR will become effective on July 6, 2018 unless 
significant adverse comment is submitted (transmitted, postmarked, or 
delivered) by June 6, 2018. If DOL receives significant adverse 
comment, the Agency will publish a timely withdrawal in the Federal 
Register informing the public that this DFR will not take effect (see 
Section III, ``Direct Final Rulemaking,'' for more details on this 
process). Comments to this DFR, hearing requests, and other information 
must be submitted (transmitted, postmarked, or delivered) by June 6, 
2018. All submissions must bear a postmark or provide other evidence of 
the submission date.

ADDRESSES: The public can submit comments, hearing requests, and other 
material, identified by Docket No. OSHA-2018-0003, using any of the 
following methods:
    Electronically: Submit comments and attachments, as well as hearing 
requests and other information, electronically at http://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow 
the instructions online for submitting comments. Note that this docket 
may include several different Federal Register notices involving active 
rulemakings, so it is extremely important to select the correct notice 
or its ID number when submitting comments for this rulemaking. After 
accessing ``all documents and comments'' in the docket (OSHA-2018-
0003), check the ``Rule'' box in the column headed ``Document Type,'' 
find the document posted on the date of publication of this document, 
and click the ``Submit a Comment'' link. Additional instructions for 
submitting comments are available from the http://www.regulations.gov 
homepage.
    Facsimile: OSHA allows facsimile transmission of comments that are 
10 pages or fewer in length (including attachments). Fax these 
documents to the OSHA Docket Office at (202) 693-1648. OSHA does not 
require hard copies of these documents. Instead of transmitting 
facsimile copies of attachments that supplement these documents (e.g., 
studies, journal articles), commenters must submit these attachments to 
the OSHA Docket Office, Docket No. OSHA-2018-0003, Occupational Safety 
and Health Administration, U.S. Department of Labor, Room N-3653, 200 
Constitution Avenue NW, Washington, DC 20210. These attachments must 
clearly identify the sender's name, the date, the subject, and the 
docket number (OSHA-2018-0003) so that the Docket Office can attach 
them to the appropriate document.
    Regular mail, express delivery, hand delivery, and messenger 
(courier) service: Submit comments and any additional material to the 
OSHA Docket Office, Docket No. OSHA-2018-0003, Occupational Safety and 
Health Administration, U.S. Department of Labor, Room N-3653, 200 
Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-
2350. (OSHA's TTY number is (877) 889-5627.) Contact the OSHA Docket 
Office for information about security procedures concerning delivery of 
materials by express delivery, hand delivery, and messenger service. 
The Docket Office will accept deliveries (express delivery, hand 
delivery, messenger service) during the Docket Office's normal business 
hours, 10:00 a.m. to 3:00 p.m., ET.
    Instructions: All submissions must include the Agency's name, the 
title of the rulemaking (Beryllium Standard: Direct Final Rule), and 
the docket number (OSHA-2018-0003). OSHA will place comments and other 
material, including any personal information, in the public docket 
without revision, and the comments and other material will be available 
online at http://www.regulations.gov. Therefore, OSHA cautions 
commenters about submitting statements they do not want made available 
to the public, or submitting comments that contain personal

[[Page 19937]]

information (either about themselves or others), such as Social 
Security Numbers, birth dates, and medical data.
    Docket: To read or download comments or other material in the 
docket, go to http://www.regulations.gov or to the OSHA Docket Office 
at the above address. The electronic docket for this direct final rule 
established at http://www.regulations.gov contains most of the 
documents in the docket. However, some information (e.g., copyrighted 
material) is not available publicly to read or download through this 
website. All submissions, including copyrighted material, are available 
for inspection at the OSHA Docket Office. Contact the OSHA Docket 
Office for assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT: Press inquiries: Mr. Frank Meilinger, 
OSHA Office of Communications, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room N-3647, 200 Constitution 
Avenue NW, Washington, DC 20210; telephone: (202) 693-1999; email: 
[email protected].
    General information and technical inquiries: William Perry or 
Maureen Ruskin, Directorate of Standards and Guidance, Occupational 
Safety and Health Administration, U.S. Department of Labor, Room N-
3718, 200 Constitution Avenue NW, Washington, DC 20210; telephone (202) 
693-1950.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Consideration of Comments
III. Direct Final Rulemaking
IV. Discussion of Changes
V. Legal Considerations
VI. Final Economic Analysis and Regulatory Flexibility Act 
Certification
VII. Office of Management and Budget (OMB) Review Under the 
Paperwork Reduction Act of 1995
VIII. Federalism
IX. State Plan States
X. Unfunded Mandates Reform Act

I. Background

    On January 9, 2017, OSHA published its final rule Occupational 
Exposure to Beryllium and Beryllium Compounds in the Federal Register 
(82 FR 2470). OSHA concluded that employees exposed to beryllium and 
beryllium compounds at the preceding permissible exposure limits (PELs) 
were at significant risk of material impairment of health, specifically 
chronic beryllium disease and lung cancer. OSHA concluded that the new 
8-hour time-weighted average (TWA) PEL of 0.2 [micro]g/m\3\ reduced 
this significant risk to the maximum extent feasible. Based on 
information submitted to the record, in the final rule OSHA issued 
three separate standards--general industry, shipyards, and 
construction. In addition to the revised PEL, the final rule 
established a new short-term exposure limit (STEL) of 2.0 [micro]g/m\3\ 
over a 15-minute sampling period and an action level of 0.1 [micro]g/
m\3\ as an 8-hour TWA, along with a number of ancillary provisions 
intended to provide additional protections to employees, such as 
requirements for exposure assessment, methods for controlling exposure, 
respiratory protection, personal protective clothing and equipment, 
housekeeping, medical surveillance, hazard communication, and 
recordkeeping similar to those found in other OSHA health standards.
    This DFR amends the text of the beryllium standard for general 
industry to clarify OSHA's intent with respect to certain terms in the 
standard, including the definition of Beryllium Work Area (BWA), the 
definition of emergency, and the meaning of the terms dermal contact 
and beryllium contamination. It also clarifies OSHA's intent with 
respect to provisions for disposal and recycling and with respect to 
provisions that the Agency intends to apply only where skin can be 
exposed to materials containing at least 0.1% beryllium by weight.
    This direct final rule is expected to be an Executive Order (E.O.) 
13771 deregulatory action. Details on OSHA's cost/cost savings 
estimates for this direct final rule can be found in the rule's 
economic analysis. OSHA has estimated that, at a 3 percent discount 
rate over 10 years, there are net annual cost savings of $0.36 million 
per year for this direct final rule; at a discount rate of 7 percent, 
there are net annual cost savings of $0.37 million per year. When the 
Department uses a perpetual time horizon, the annualized cost savings 
of the direct final rule is $0.37 million with 7 percent discounting. 
While the 2017 Beryllium Final Rule went into effect on May 20, 2017, 
compliance obligations do not begin until May 11, 2018.

II. Consideration of Comments

    OSHA will consider comments on all issues related to this action 
including economic or other regulatory impacts of this action on the 
regulated community. If OSHA receives no significant adverse comment, 
OSHA will publish a Federal Register document confirming the effective 
date of this DFR and withdrawing the companion Notice of Proposed 
Rulemaking (NPRM). Such confirmation may include minor stylistic or 
technical changes to the document. For the purpose of judicial review, 
OSHA views the date of confirmation of the effective date of this DFR 
as the date of promulgation.

III. Direct Final Rulemaking

    In direct final rulemaking, an agency publishes a DFR in the 
Federal Register, with a statement that the rule will go into effect 
unless the agency receives significant adverse comment within a 
specified period. The agency may publish an identical concurrent NPRM. 
If the agency receives no significant adverse comment in response to 
the DFR, the rule goes into effect. OSHA typically confirms the 
effective date of a DFR through a separate Federal Register document. 
If the agency receives a significant adverse comment, the agency 
withdraws the DFR and treats such comment as a response to the NPRM. An 
agency typically uses direct final rulemaking when an agency 
anticipates that a rule will not be controversial.
    For purposes of this DFR, a significant adverse comment is one that 
explains why the amendments to OSHA's beryllium standard would be 
inappropriate. In determining whether a comment necessitates withdrawal 
of the DFR, OSHA will consider whether the comment raises an issue 
serious enough to warrant a substantive response in a notice-and-
comment process. OSHA will not consider a comment recommending an 
additional amendment to this rule to be a significant adverse comment 
unless the comment states why the DFR would be ineffective without the 
addition.
    In addition to publishing this DFR, OSHA is publishing a companion 
NPRM in the Federal Register. The comment period for the NPRM runs 
concurrently with that of the DFR. OSHA will treat comments received on 
the companion NPRM as comments also regarding the DFR. Similarly, OSHA 
will consider significant adverse comment submitted to the DFR as 
comment to the companion NPRM. Therefore, if OSHA receives a 
significant adverse comment on either this DFR or the NPRM, it will 
withdraw this DFR and proceed with the companion NPRM. In the event 
OSHA withdraws the DFR because of significant adverse comment, OSHA 
will consider all timely comments received in response to the DFR when 
it continues with the NPRM. After carefully considering all comments to 
the DFR and the NPRM, OSHA will decide whether to publish a new final 
rule.

[[Page 19938]]

    OSHA determined that the subject of this rulemaking is suitable for 
direct final rulemaking. This amendment to the standard is clarifying 
in nature and does not adversely impact the safety or health of 
employees. The amended standard will clarify OSHA's intent regarding 
certain terms in the standard, including the definition of Beryllium 
Work Area (BWA), the definition of emergency, and the meaning of the 
terms dermal contact and beryllium contamination. It will also clarify 
OSHA's intent with respect to provisions for disposal and recycling and 
with respect to provisions that the Agency intends to apply only where 
skin can be exposed to materials containing at least 0.1% beryllium by 
weight. The revisions do not impose any new costs or duties. For these 
reasons, OSHA does not anticipate objections from the public to this 
rulemaking action.

IV. Discussion of Changes

    On January 9, 2017, OSHA adopted comprehensive standards addressing 
exposure to beryllium and beryllium compounds in general industry, 
construction, and shipyards. 82 FR 2470. Beryllium ``occurs naturally 
in rocks, soil, coal, and volcanic dust,'' but can cause harm to 
workers through exposure in the workplace. 80 FR 47579. OSHA has thus 
set a general industry exposure limit for beryllium and beryllium 
compounds since 1971, modified most recently in 2017. See 80 FR 47578-
47579; 82 FR 2471. This DFR amends that 2017 general industry beryllium 
standard (codified at 29 CFR 1910.1024) to clarify its applicability to 
materials containing trace amounts of beryllium and to make related 
changes. This DFR does not affect the construction and shipyard 
standards, which are being addressed in a separate rulemaking. See 82 
FR 29182.
    During the last rulemaking, OSHA addressed the issue of trace 
amounts of beryllium. In its notice of proposed rulemaking, OSHA 
proposed to exempt from its beryllium standard materials containing 
less than 0.1% beryllium by weight on the premise that workers in 
exempted industries are not exposed at levels of concern, 80 FR 47775, 
but noted evidence of high airborne exposures in some of those 
industries, in particular the primary aluminum production and coal-
fired power generation industries. 80 FR 47776. Therefore, OSHA 
proposed for comment several regulatory alternatives, including an 
alternative that would ``expand the scope of the proposed standard to 
also include all operations in general industry where beryllium exists 
only as a trace contaminant.'' 80 FR 47730. After receiving comment, 
OSHA adopted in the final rule an alternative limiting the exemption 
for materials containing less than 0.1% beryllium by weight to where 
the employer has objective data demonstrating that employee exposure to 
airborne beryllium will remain below the action level (AL) of 0.1 
[micro]g/m\3\, measured as an 8-hour TWA, under any foreseeable 
conditions. 29 CFR 1910.1024(a)(2). In doing so, OSHA noted that the AL 
exception ensured that workers with airborne exposures of concern were 
covered by the standard:

    OSHA agrees with the many commenters and testimony expressing 
concern that materials containing trace amounts of beryllium (less 
than 0.1 percent by weight) can result in hazardous [airborne] 
exposures to beryllium. We disagree, however, with those who 
supported completely eliminating the exemption because this could 
have unintended consequences of expanding the scope to cover minute 
amounts of naturally occurring beryllium (Ex 1756 Tr. 55). Instead, 
we believe that alternative #1b--essentially as proposed by Materion 
and USW [United Steelworkers] and acknowledging that workers can 
have significant [airborne] beryllium exposures even with materials 
containing less than 0.1%--is the most appropriate approach. 
Therefore, in the final standard, it is exempting from the 
standard's application materials containing less than 0.1% beryllium 
by weight only where the employer has objective data demonstrating 
that employee [airborne] exposure to beryllium will remain below the 
action level as an 8-hour TWA under any foreseeable conditions. 82 
FR 2643.

    As the regulatory history makes clear, OSHA intended to protect 
employees working with trace beryllium only when it caused airborne 
exposures of concern. OSHA did not intend for provisions aimed at 
protecting workers from the effects of dermal contact to apply in the 
case of materials containing only trace amounts of beryllium. Since the 
publication of the final rule, however, stakeholders have suggested 
that an unintended consequence of the final rule's revision of the 
trace exemption is that provisions designed to protect workers from 
dermal contact with beryllium-contaminated material could be read as 
applying to materials with only trace amounts of beryllium.
    This DFR adjusts the regulatory text of the general industry 
beryllium standard to clarify that OSHA does not intend for 
requirements that primarily address dermal contact to apply in 
processes, operations, or areas involving only materials containing 
less than 0.1% beryllium by weight. These clarifications are made 
through changes to the definition of beryllium work area; the addition 
of definitions of dermal contact, beryllium-contaminated, and 
contaminated with beryllium; clarifications of certain hygiene 
provisions with respect to beryllium contamination; and the 
clarifications to provisions for disposal and recycling. In addition, 
because under these changes it is possible to have a regulated area 
that is not a beryllium work area, this DFR makes changes to certain 
housekeeping provisions to ensure they apply in all regulated areas. 
Finally, this DFR also includes a change to the definition of 
``emergency'', adding detail to the definition so as to clarify the 
nature of the circumstances OSHA intends to be considered an emergency 
for the purposes of the standard.
    Definition of beryllium work area. Paragraph (b) of the beryllium 
standard published in January 2017 defined a beryllium work area as any 
work area containing a process or operation that can release beryllium 
where employees are, or can reasonably be expected to be, exposed to 
airborne beryllium at any level or where there is the potential for 
dermal contact with beryllium. This DFR amends the definition as 
follows: ``Beryllium work area means any work area: (1) Containing a 
process or operation that can release beryllium and that involves 
materials that contain at least 0.1% beryllium by weight; and (2) where 
employees are, or can reasonably be expected to be, exposed to airborne 
beryllium at any level or where there is the potential for dermal 
contact with beryllium.'' This change clarifies OSHA's intent that many 
of the provisions associated with beryllium work areas should only 
apply to areas where there are processes or operations involving 
materials at least 0.1% beryllium by weight.
    Specifically, this change to the beryllium work area definition 
clarifies OSHA's intent that the following provisions associated with 
beryllium work areas do not apply where processes and operations 
involve only materials containing trace amounts of beryllium (less than 
0.1% beryllium by weight): Establishing and demarcating beryllium work 
areas (paragraphs (e)(1)(i) and (e)(2)(i)); including procedures for 
minimizing cross-contamination within (paragraph (f)(1)(i)(D)) or 
minimizing migration of beryllium out of (paragraph (f)(1)(i)(F)) such 
areas in the written exposure control plan; ensuring that at least one 
engineering or process control is in place to reduce beryllium exposure 
where airborne beryllium levels meet or exceed the AL (revised 
paragraph

[[Page 19939]]

(f)(2)(ii)).\1\ Additionally, for areas where beryllium is only present 
in materials at concentrations of less than 0.1% beryllium by weight, 
unless that area is also a regulated area, employers are not required 
to ensure that all surfaces in such areas are as free as practicable of 
beryllium (paragraph (j)(1)(i)); ensure that all surfaces in such areas 
are cleaned by HEPA-filtered vacuuming or other methods that minimize 
the likelihood and level of airborne exposure (paragraph (j)(2)(i)); or 
prohibit dry sweeping or brushing for cleaning surfaces in such areas 
(paragraph (j)(2)(ii)).
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    \1\ As explained in the preamble to the January 2017 rule, in 
industries that process or handle materials with only trace amounts 
of beryllium and that encounter exposures to beryllium above the 
action level, the PEL would ``be exceeded only during operations 
that generate [an] excessive amount of visible airborne dust.'' 82 
FR 2583. OSHA therefore expects that if exposures in such a facility 
are below the PEL but above the AL, there is already at least one 
engineering or process control in place, so this requirement had no 
effect on primary aluminum production or coal-fired utilities. The 
2017 FEA explained that this provision would only require additional 
controls in two job categories in two application groups, neither of 
which are in primary aluminum production or coal-fired utilities. 
(Document ID OSHA-H005C-2006-0870-2042, p. V-12).
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    This DFR also includes conforming changes to maintain the January 
2017 rule's requirements for housekeeping in regulated areas. Because 
all regulated areas were also beryllium work areas under the January 
2017 beryllium standard, OSHA did not specify whether requirements for 
beryllium work areas should also apply in regulated areas (areas in 
which airborne beryllium exposure meets or exceeds the TWA PEL or 
STEL). This DFR's clarification to the definition of beryllium work 
area, however, means that it is possible for a work area to be a 
regulated area, but not a beryllium work area. This would occur when 
processes that involve only materials containing less than 0.1% 
beryllium by weight nevertheless create airborne beryllium exposures at 
or above the TWA PEL or STEL. 82 FR 2583. It is thus important to 
clarify that housekeeping (paragraph (j)) requirements continue to 
apply in regulated areas, even if the processes or operations in these 
areas involve materials with only trace beryllium. Operations or 
processes involving trace beryllium materials must generate extremely 
high dust levels in order to exceed the TWA PEL or STEL. Following the 
housekeeping methods required by paragraph (j) will help to protect 
workers against resuspension of surface beryllium accumulations from 
extremely dusty operations and limit workers' airborne exposure to 
beryllium.
    The DFR accordingly amends paragraphs (j)(1)(i), (j)(2)(i), and 
(j)(2)(ii) to state explicitly that they apply to regulated areas, as 
follows. Paragraph (j)(1)(i), as amended, states that ``[t]he employer 
must maintain all surfaces in beryllium work areas and regulated areas 
as free as practicable of beryllium and in accordance with the written 
exposure control plan required under paragraph (f)(1) and the cleaning 
methods required under paragraph (j)(2) of this standard.'' Paragraph 
(j)(2)(i), as amended, states that ``[t]he employer must ensure that 
surfaces in beryllium work areas and regulated areas are cleaned by 
HEPA-filtered vacuuming or other methods that minimize the likelihood 
and level of airborne exposure.'' Paragraph (j)(2)(ii), as amended, 
states that ``[t]he employer must not allow dry sweeping or brushing 
for cleaning surfaces in beryllium work areas or regulated areas unless 
HEPA-filtered vacuuming or other methods that minimize the likelihood 
and level of airborne exposure are not safe or effective.''
    This DFR also makes conforming changes to the engineering controls 
requirements to ensure that the hierarchy of controls continues to 
apply in all regulated areas. Paragraph (f)(2) of the January 2017 
beryllium standard provided that, if airborne exposures still exceed 
the PEL or STEL after implementing at least one control for each 
operation in a beryllium work area that releases airborne beryllium, 
the employer must implement additional or enhanced engineering and work 
practice controls to reduce airborne exposure to or below the limit 
exceeded. OSHA intended this provision to apply to all operations 
within the scope of the standard that can release airborne beryllium. 
82 FR 2671-72. Because, under this DFR's revisions, not all regulated 
areas will be beryllium work areas, this DFR rearranges the regulatory 
text of paragraph (f)(2) to make clear that the hierarchy of controls 
will continue to apply in regulated areas that are not beryllium work 
areas.
    Definitions related to beryllium contamination. To further clarify 
OSHA's intent that the standard's requirements aimed at reducing the 
effect of dermal contact with beryllium should not apply to areas where 
there are no processes or operations involving materials containing at 
least 0.1% beryllium by weight, this DFR defines ``beryllium-
contaminated or contaminated with beryllium'' and adds those terms to 
certain provisions in the standard. The DFR defines those terms as 
follows: ``Contaminated with beryllium and beryllium-contaminated mean 
contaminated with dust, fumes, mists, or solutions containing beryllium 
in concentrations greater than or equal to 0.1 percent by weight.'' The 
DFR adds the terms to certain provisions in the standard's requirements 
for hygiene areas and disposal and recycling.
    The use of this definition accordingly clarifies OSHA's intent that 
the following provisions, which apply where clothing, hair, skin, or 
work surfaces are beryllium-contaminated, do not apply where the 
contaminating material contains less than 0.1% beryllium by weight: 
Paragraph (h)(2)(i) and paragraph (h)(2)(ii), which require the 
employer to ensure that each employee removes all beryllium-
contaminated personal protective clothing and equipment at the 
appropriate time and as specified in the written exposure control plan 
required by paragraph (f)(1); and paragraph (h)(2)(iii) and paragraph 
(h)(2)(iv), which require the employer to ensure that measures to 
prevent cross contamination between beryllium-contaminated personal 
protective clothing and equipment and street clothing are observed and 
that beryllium-contaminated personal protective clothing and equipment 
are not removed from the workplace. This DFR also amends paragraph 
(h)(3)(ii), which requires the employer to ensure that beryllium is 
properly removed from PPE, by adding the term ``beryllium-
contaminated'' so that this requirement applies only where the 
contaminating material contains at least 0.1% beryllium by weight. The 
amended paragraph (h)(3)(ii) reads as follows: ``The employer must 
ensure that beryllium is not removed from beryllium-contaminated 
personal protective clothing and equipment by blowing, shaking, or any 
other means that disperses beryllium into the air.''
    Similarly, the DFR's inclusion of the term ``contaminated with 
beryllium'' in paragraphs (i)(3)(i)(B) and (i)(3)(ii)(B) clarifies 
OSHA's intent that those provisions, which require employers to provide 
and ensure use of showers where employees' hair or body parts other 
than hands, face, and neck can reasonably be expected to become 
contaminated with beryllium, do not apply where the contaminating 
material contains less than 0.1% beryllium by weight.
    The DFR's adoption of the definition of ``beryllium-contaminated'' 
further clarifies the application of certain requirements that are 
meant to minimize re-entrainment of airborne beryllium and reduce the 
effect of

[[Page 19940]]

dermal contact with beryllium. Specifically, it clarifies that 
paragraph (j)(2)(iii), which prohibits the use of compressed air for 
cleaning beryllium-contaminated surfaces except where used in 
conjunction with an appropriate ventilation system, and paragraph 
(j)(2)(iv), which requires the use of respiratory protection and PPE in 
accordance with paragraphs (g) and (h) of the standard when dry 
sweeping, brushing, or compressed air are used to clean beryllium-
contaminated surfaces, do not apply where the contaminating material 
contains less than 0.1% beryllium by weight. OSHA does not expect the 
additional airborne exposure from dry brushing, sweeping, or using 
compressed air to significantly increase the levels of airborne 
exposure outside regulated areas when working with trace beryllium. 
This is because for trace beryllium to generate airborne exposures of 
concern, excessive amounts of dust would need to be generated, and this 
would not happen outside of regulated areas.
    This DFR also adds the term ``beryllium-contaminated'' to certain 
requirements pertaining to eating and drinking areas to clarify that 
hygiene requirements in these areas apply only where materials 
containing more than 0.1% beryllium by weight may contaminate such 
areas. Paragraph (i)(4)(i), as amended by this DFR, states that 
wherever the employer allows employees to consume food or beverages at 
a worksite where beryllium is present, the employer must ensure that 
``[b]eryllium-contaminated surfaces in eating and drinking areas are as 
free as practicable of beryllium.'' Paragraph (i)(4)(ii), as amended by 
this DFR, requires employers to ensure that ``[n]o employees enter any 
eating or drinking area with beryllium-contaminated personal protective 
clothing or equipment unless, prior to entry, surface beryllium has 
been removed from the clothing or equipment by methods that do not 
disperse beryllium into the air or onto an employee's body.''
    Definition of dermal contact with beryllium. To clarify OSHA's 
intent that requirements of the standard associated with dermal contact 
with beryllium should not apply to areas where there are no processes 
or operations involving materials at least 0.1% beryllium by weight, 
this DFR also adds a definition for dermal contact with beryllium. This 
new definition provides, ``Dermal contact with beryllium means skin 
exposure to: (1) Soluble beryllium compounds containing beryllium in 
concentrations greater than or equal to 0.1 percent by weight; (2) 
solutions containing beryllium in concentrations greater than or equal 
to 0.1 percent by weight; or (3) dust, fumes, or mists containing 
beryllium in concentrations greater than or equal to 0.1 percent by 
weight.'' Accordingly, the definition clarifies that paragraph 
(h)(1)(ii), which requires an employer to provide and ensure the use of 
personal protective clothing and equipment where there is a reasonable 
expectation of dermal contact with beryllium, applies only where 
contact may occur with materials containing at least 0.1% beryllium by 
weight. This definition also clarifies that the requirements related to 
dermal contact in the written exposure control plan, washing 
facilities, medical examinations, and training provisions only apply 
where contact may occur with materials containing at least 0.1% 
beryllium by weight.
    Definition of emergency. This DFR also clarifies the definition of 
``emergency'' in paragraph (b) of the beryllium standard published in 
January 2017. That paragraph defined an emergency as ``any uncontrolled 
release of airborne beryllium.'' This DFR amends the definition as 
follows: ``Emergency means any occurrence such as, but not limited to, 
equipment failure, rupture of containers, or failure of control 
equipment, which may or does result in an uncontrolled and unintended 
release of airborne beryllium that presents a significant hazard.'' 
This change clarifies the circumstances under which the provisions 
associated with emergencies should apply, including the requirements 
that employers provide and ensure employee use of respirators and that 
employers provide medical surveillance to employees exposed in an 
emergency. This change is consistent with OSHA's intent as explained in 
the preamble to the 2017 final rule. 82 FR 2690 (``An emergency could 
result from equipment failure, rupture of containers, or failure of 
control equipment, among other causes.''). These examples show OSHA's 
intent to define an ``emergency'' as something unintended as well as 
uncontrolled, and including the examples in the new definition make 
that clear. It is also consistent with other OSHA standards, such as 
methylenedianiline (1910.1050), vinyl chloride (1910.1017), 
acrylonitrile (1910.1045), benzene (1910.1028), and ethylene oxide 
(1910.1047).
    Disposal and recycling. Finally, this DFR clarifies the application 
of the disposal and recycling provisions. Paragraph (j)(3) of the 
beryllium standard published in January 2017 required employers to 
ensure that materials designated for disposal that contain or are 
contaminated with beryllium are disposed of in sealed, impermeable 
enclosures, such as bags or containers, that are labeled in accordance 
with paragraph (m)(3) of the standard. It also required that materials 
designated for recycling which contain or are contaminated with 
beryllium are cleaned to be as free as practicable of surface beryllium 
contamination and labeled in accordance with paragraph (m)(3) of the 
standard, or placed in sealed, impermeable enclosures, such as bags or 
containers, that are labeled in accordance with paragraph (m)(3) of the 
standard. These provisions were designed to protect workers from dermal 
contact with beryllium dust generated during processing, where there is 
a risk of beryllium sensitization. See 82 FR 2694, 2695. This DFR 
accordingly limits those requirements to ``materials that contain 
beryllium in concentrations of 0.1 percent by weight or more or are 
contaminated with beryllium,'' consistent with OSHA's intention that 
provisions aimed at protecting workers from the effects of dermal 
contact do not apply in the case of materials containing only trace 
amounts of beryllium. The hazard communication standard continues to 
apply according to its terms. See 29 CFR 1910.1200.

V. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970) 
(``OSH Act''; 29 U.S.C. 651 et seq.) is ``to assure so far as possible 
every working man and woman in the Nation safe and healthful working 
conditions and to preserve our human resources.'' 29 U.S.C. 651(b). To 
achieve this goal, Congress authorized the Secretary of Labor to 
promulgate and enforce occupational safety and health standards. 29 
U.S.C. 655(b), 658. A safety or health standard is a standard that 
``requires conditions, or the adoption or use of one or more practices, 
means, methods, operations, or processes, reasonably necessary or 
appropriate to provide safe or healthful employment and places of 
employment.'' 29 U.S.C. 652(8). A standard is reasonably necessary or 
appropriate when a significant risk of material harm exists in the 
workplace and the standard would substantially reduce or eliminate that 
workplace risk. See Industrial Union Dept., AFL-CIO v. Am. Petroleum 
Inst., 448 U.S. 607, 641-42 (1980) (plurality opinion).
    OSHA need not make additional findings on risk for this DFR. As 
discussed above, this DFR will not diminish the employee protections 
put into place by the standard being amended. And because OSHA 
previously determined that the

[[Page 19941]]

beryllium standard substantially reduces a significant risk (82 FR 
2545-52), it is unnecessary for the Agency to make additional findings 
on risk for the minor changes and clarifications being made to the 
standard. See, e.g., Public Citizen Health Research Group v. Tyson, 796 
F.2d 1479, 1502 n.16 (D.C. Cir. 1986) (rejecting the argument that OSHA 
must ``find that each and every aspect of its standard eliminates a 
significant risk'').
    OSHA has determined that these minor changes and clarifications are 
technologically and economically feasible. All OSHA standards must be 
both technologically and economically feasible. See United Steelworkers 
v. Marshall, 647 F.2d 1189, 1264 (D.C. Cir. 1980) (``Lead I''). The 
Supreme Court has defined feasibility as ``capable of being done.'' Am. 
Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509-10 (1981) (``Cotton 
Dust''). Courts have further clarified that a standard is 
technologically feasible if OSHA proves a reasonable possibility, 
``within the limits of the best available evidence . . . that the 
typical firm will be able to develop and install engineering and work 
practice controls that can meet the PEL in most of its operations.'' 
Lead I, 647 F.2d at 1272. With respect to economic feasibility, courts 
have held that ``a standard is feasible if it does not threaten massive 
dislocation to or imperil the existence of the industry.'' Id. at 1265 
(internal quotation marks and citations omitted). In the final economic 
analysis (FEA) for the 2017 beryllium rule, OSHA concluded that the 
rule was economically and technologically feasible. OSHA has determined 
that this DFR is also economically and technologically feasible, 
because it does not impose any new requirements or costs.

VI. Final Economic Analysis and Regulatory Flexibility Act 
Certification

    Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 
U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 
1532(a)) require that OSHA estimate the benefits, costs, and net 
benefits of regulations, and analyze the impacts of certain rules that 
OSHA promulgates. E.O. 13563 emphasizes the importance of quantifying 
both costs and benefits, reducing costs, harmonizing rules, and 
promoting flexibility.
    This DFR is not an ``economically significant regulatory action'' 
under Executive Order 12866, or a ``major rule'' under the 
Congressional Review Act (5 U.S.C. 801 et seq.), and its impacts do not 
trigger the analytical requirements of UMRA. Neither the benefits nor 
the costs of this DFR would exceed $100 million in any given year. This 
DFR would, however, result in a net cost savings for employers in 
primary aluminum production and coal-fired utilities, which are the 
only industries in General Industry covered by the 2017 Beryllium Final 
Rule that OSHA identified with operations involving materials 
containing only trace beryllium (less than 0.1% beryllium by weight).
    Several calculations illustrate the expected cost savings. At a 
discount rate of 3 percent, this DFR would yield annualized cost 
savings of $0.36 million per year for 10 years. At a discount rate of 7 
percent, this DFR would yield an annualized cost savings of $0.37 
million per year for 10 years. These net cost savings amount to 
approximately 0.6 percent of the original estimated cost of the 2017 
Beryllium Final Rule for General Industry at discount rates of either 3 
or 7 percent; to approximately 5.3 percent of the original estimated 
cost of the 2017 Beryllium Final Rule for primary aluminum production 
and coal-fired utilities only at a discount rate of 3 percent and 5.2 
percent of the original estimated cost of the 2017 Beryllium Final Rule 
for primary aluminum production and coal-fired utilities only at a 
discount rate of 7 percent.\2\ Under a perpetual time horizon, the 
annualized cost savings of this DFR is $0.37 million at a discount rate 
of 7 percent.
---------------------------------------------------------------------------

    \2\ The original estimated cost of the 2017 beryllium final rule 
for General Industry, and separately for primary aluminum production 
and coal-fired utilities, was updated to 2017 dollars and 
additionally adjusted and corrected, as subsequently explained in 
the text.
---------------------------------------------------------------------------

1. Changes to the Baseline: Updating to 2017 Dollars and Removing 
Familiarization Costs

    Because baseline costs typically reflect the costs of compliance 
without the changes set forth in an agency's action--in this case, the 
DFR--OSHA has revised the baseline costs, as displayed in the FEA in 
support of the beryllium standard of January 9, 2017, in two ways. 
First, OSHA updated the projected costs for general industry contained 
in the FEA that accompanied the rule from 2015 to 2017 dollars, using 
the latest Occupational Employment Statistics (OES) wage data (for 
2016) and inflating them to 2017 dollars. Second, OSHA excluded certain 
familiarization costs, included in the cost estimates developed in the 
beryllium FEA for the 2017 Beryllium Final Rule, because OSHA expects 
that those costs have already been incurred by affected employers. 
Thus, the baseline costs for this FEA are the projected costs from the 
2017 FEA, updated to 2017 dollars, less familiarization costs in the 
2017 beryllium final rule (but including some new familiarization costs 
for employers to become familiar with the revised provisions). 
Throughout this analysis of costs and cost savings, the context is 
limited to employers in primary aluminum production and coal-fired 
utilities.

2. Discussion of Overhead Costs

    As in the 2017 FEA, OSHA has not accounted for overhead labor costs 
in its analysis of the cost savings for this DFR due to concerns about 
consistency. There are several ways to look at the cost elements that 
fit the definition of overhead, and there is a range of overhead 
estimates currently used within the federal government--for example, 
the Environmental Protection Agency has used 17 percent,\3\ and 
government contractors have been reported to use an average of 77 
percent.\4\ Some overhead costs, such as advertising and marketing, may 
be more closely correlated with output than with labor. Other overhead 
costs vary with the number of new employees. For example, rent or 
payroll processing costs may change little with the addition of 1 
employee in a 500-employee firm, but may change substantially with the 
addition of 100 employees. If an employer is able to rearrange current 
employees' duties to implement a rule, then the marginal share of 
overhead costs, such as rent, insurance, and major office equipment 
(e.g., computers, printers, copiers) would be very difficult to measure 
with accuracy.
---------------------------------------------------------------------------

    \3\ See Grant Thornton LLP. 2015 Government Contractor Survey 
(Document ID OSHA-H005C-2006-0870-2153). The application of this 
overhead rate was based on an approach used by the Environmental 
Protection Agency, as described in EPA's ``Wage Rates for Economic 
Analyses of the Toxics Release Inventory Program,'' June 10, 2002. 
This analysis itself was based on a survey of several large chemical 
manufacturing plants: Heiden Associates, Final Report: A Study of 
Industry Compliance Costs Under the Final Comprehensive Assessment 
Information Rule, Prepared for the Chemical Manufacturers 
Association, December 14, 1989.
    \4\ For further examples of overhead cost estimates, please see 
the Employee Benefits Security Administration's guidance at https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf.
---------------------------------------------------------------------------

    If OSHA had included an overhead rate when estimating the marginal 
cost of labor, without further analyzing an appropriate quantitative 
adjustment, and adopted for these purposes an overhead rate of 17 
percent on base wages, the cost savings of this DFR

[[Page 19942]]

would increase to approximately $0.39 million per year, at discount 
rates of either 3 percent or 7 percent.\5\ The addition of 17 percent 
overhead on base wages would therefore increase cost savings by 
approximately 7 percent above the primary estimate at either discount 
rate.
---------------------------------------------------------------------------

    \5\ OSHA used an overhead rate of 17 percent on base wages in a 
sensitivity analysis in the FEA (OSHA-2010-0034-4247, p. VII-65) in 
support of the March 25, 2016 final respirable crystalline silica 
standards (81 FR 16286) and in the PEA in support of the June 27, 
2017 proposed beryllium standards in construction and shipyard 
sectors (82 FR 29201).
---------------------------------------------------------------------------

3. Cost Impact of the Changes to the Standard

    OSHA estimates a net cost savings from this DFR for employers at 
primary aluminum production and coal-fired utilities, which again are 
the only two industries identified in the 2017 FEA as having costs 
associated with exposure to trace beryllium materials.\6\ Annualizing 
the present value of net cost savings over ten years, the result is an 
annualized net cost savings of $0.36 million per year at a discount 
rate of 3 percent, or $0.37 million per year at a discount rate of 7 
percent. When the Department uses a perpetual time horizon, the 
annualized net cost savings of this DFR is $0.37 million at a discount 
rate of 7 percent.
---------------------------------------------------------------------------

    \6\ As noted in Section IV of this preamble, coverage of dermal 
contact with trace beryllium materials was an unintended consequence 
of OSHA's decision to cover airborne exposures to beryllium above 
the action level caused by operations that generate excessive 
amounts of dust from trace beryllium materials. Likewise, in the 
2017 FEA supporting OSHA's Beryllium Final Rule, through an 
oversight, OSHA made no distinction between trace and non-trace 
beryllium materials when determining the cost of requirements 
triggered by dermal contact with beryllium. The cost savings 
generated by this FEA are a result of correcting these oversights.
---------------------------------------------------------------------------

    The undiscounted cost savings by provision and year are presented 
below in Table 1, and the cost savings by provision and discount rate 
are shown below in Tables 2 and 3. As described elsewhere in this 
document, the cost savings described in this FEA reflect savings only 
for provisions covered by the changes in this DFR as well as added 
familiarization costs. OSHA estimated no cost savings for the PEL, 
respiratory protection, exposure assessment, regulated areas, medical 
surveillance, medical removal protection, written exposure control 
plan, or training provisions because the DFR makes no changes of 
substance to those provisions.
    a. Beryllium work areas. OSHA is limiting the definition of 
``beryllium work area'' to any work area containing a process or 
operation ``that involves materials that contain at least 0.1% 
beryllium by weight. . . .'' OSHA has determined that affected 
establishments in primary aluminum production and coal-fired utilities 
would thus no longer need to designate and demarcate beryllium work 
areas because their materials would not meet that threshold outside of 
the ``regulated areas'' in primary aluminum production where employee 
exposures to airborne beryllium would exceed the PEL. In its previous 
economic analysis, OSHA had estimated that each of the establishments 
in these categories required beryllium work areas in addition to 
``regulated areas,'' which were costed separately. The removal of these 
beryllium work area designations results in an annualized cost savings 
of $12,913 using a 3 percent discount rate and $15,682 using a 7 
percent discount rate. Annualized costs by provision and discount rate 
can be seen below in Tables 2 and 3.
    b. Protective work clothing and equipment. OSHA is recognizing no 
cost savings in this DFR for the elimination of PPE requirements 
associated with dermal contact in coal-fired utilities. In its 2017 
FEA, OSHA listed the PPE compliance rate for utility workers at coal-
fired utilities at 75 percent and therefore estimated PPE costs for the 
residual 25 percent of utility workers in the industry (where airborne 
exposures exceed the PEL or STEL or where there is dermal contact with 
beryllium). But upon further review, OSHA has determined that it should 
not have included those costs because affected employers in coal-fired 
utilities were already required to wear PPE under 29 CFR 1910.1018(j) 
to prevent skin and eye irritation from exposure to trace inorganic 
arsenic found in coal ash. As OSHA noted in its technological 
feasibility analysis, inorganic arsenic is often found in coal fly ash 
in ``concentrations 10 to 1,000 times greater than beryllium,'' fly ash 
is the primary source of beryllium exposure for employees in coal-fired 
utilities, and employers in this application group indicated that they 
were already following a majority of the provisions of the rule to 
comply with OSHA requirements for other hazardous substances, such as 
arsenic (p. IV-652). Thus, in all of the areas within a facility in 
which employees are likely to be exposed to beryllium, they are also 
likely to be exposed to concentrations of arsenic significantly high so 
as to trigger the arsenic PPE requirements. Accordingly, coal-fired 
utility compliance rates with the PPE requirement for affected workers 
should have been 100 percent in the prior FEA, and no costs for PPE for 
these workers should have been included in OSHA's cost estimates. 
Because OSHA should not have included new beryllium PPE costs for this 
group, OSHA is recognizing no cost savings in this DFR for the 
elimination of PPE requirements associated with dermal contact in coal-
fired utilities.
    There are, however, some small PPE cost savings for primary 
aluminum production. The January 2017 rule requires employers to 
provide PPE in two situations: (1) Where airborne exposure exceeds, or 
can reasonably be expected to exceed, the TWA PEL or STEL; and (2) 
where there is a reasonable expectation of dermal contact with 
beryllium. 29 CFR 1910.1024(h)(1). It is the second of these two 
situations which OSHA believes will trigger cost savings. Because this 
DFR clarifies that ``dermal contact with beryllium'' does not include 
contact with beryllium in concentrations less than 0.1% beryllium by 
weight, gloves and other PPE requirements will be triggered by a 
reasonable expectation of dermal contact only with materials containing 
more than 0.1% beryllium by weight. In primary aluminum production, 
there is no dermal contact with materials containing beryllium above 
this threshold. As a result, the Agency has determined that in primary 
aluminum production, additional PPE is only necessary for workers 
exposed over the PEL. This change results in an annualized cost savings 
for employers in primary aluminum production of $35,023 using a 3 or 7 
percent discount rate. Annualized costs by provision and discount rate 
can be seen below in Tables 2 and 3.
    c. Hygiene areas and practices. The DFR's adoption of a definition 
for ``contaminated with beryllium'' also reduces the costs of complying 
with the Hygiene Areas and Practices provision in primary aluminum 
production (the costs for coal-fired utilities would not be affected). 
The 2017 Final Beryllium Rule requires employers to provide showers 
where both of two conditions are met:


[[Page 19943]]


    (A) Airborne exposure exceeds, or can reasonably be expected to 
exceed, the TWA PEL or STEL; and
    (B) Beryllium can reasonably be expected to contaminate 
employees' hair or body parts other than hands, face, and neck.

29 CFR 1910.1024(i)(3)(i). By revising (B) to incorporate the newly 
defined term ``contaminated with beryllium,'' the condition in 
paragraph (B) will not be met in primary aluminum production because no 
employees in this application group can reasonably be expected to 
become ``contaminated with beryllium.'' Thus, the beryllium standard 
does not require employers in this application group to provide 
showers. Similarly, employers need not provide the estimated lower-cost 
alternative of head coverings, discussed in the 2017 FEA.\7\ Removing 
the cost of head coverings for workers in this application group 
results in an annualized cost savings for employers in primary aluminum 
production of $415 using a 3 or 7 percent discount rate. Annualized 
costs by provision and discount rate can be seen below in Tables 2 and 
3.
---------------------------------------------------------------------------

    \7\ In the previous FEA, OSHA had included costs for head 
coverings in lieu of showers, reasoning that employees could avoid 
the need for showers because the head coverings and other PPE would 
prevent their hair or body parts from becoming contaminated with 
beryllium.
---------------------------------------------------------------------------

    d. Housekeeping. Similar to the above discussion about PPE in coal-
fired utilities, OSHA is recognizing no cost savings in this DFR for 
coal-fired utilities as a result of the modification of the 
housekeeping requirements. In the FEA in support of the 2017 Beryllium 
Final Rule, the Agency listed the housekeeping compliance rate for 
affected workers at coal-fired utilities at 75 percent and therefore 
estimated housekeeping costs for the residual 25 percent of utility 
workers in a beryllium work area. But upon further review, OSHA has 
determined that affected employers in coal-fired utilities were already 
required to perform comparable housekeeping duties under 29 CFR 
1910.1018(k) to prevent accumulations of inorganic arsenic found in 
coal ash. Accordingly, coal-fired utility compliance rates with the 
housekeeping requirements for affected workers should have been 100 
percent in the prior FEA, and no costs for housekeeping for these 
workers should have been included in OSHA's cost estimates. 
Consequently, OSHA is recognizing no cost savings in this DFR for coal-
fired utilities as a result of the modification of the housekeeping 
requirements.
    The rule clarification also means that employers in primary 
aluminum production facilities will typically only be required to 
comply with the beryllium housekeeping provisions in ``regulated 
areas,'' which for cost purposes OSHA identified as employees exposed 
over the PEL in its exposure profile. There are several exceptions, 
none of which have a quantifiable impact on costs: Employers in this 
industry would still need to follow the housekeeping requirements when 
cleaning up spills and emergency releases of beryllium (paragraph 
(j)(1)(ii)), handling and maintaining cleaning equipment (paragraph 
(j)(2)(v)), and when necessary to reduce some workers exposures below 
the PEL (serving as an engineering control to prevent over-exposure to 
beryllium within regulated areas or the need for regulated areas). OSHA 
did not identify separate costs in its prior FEA for this use of 
housekeeping as a form of engineering control and does not do so here. 
Thus, for cost calculation purposes in this new FEA, OSHA removed 
housekeeping costs for all employees exposed below the PEL in its 
exposure profile. This change results in an annualized cost savings for 
employers in primary aluminum production of $323,664 using a 3 percent 
discount rate and $330,324 using a 7 percent discount rate. Annualized 
costs by provision and discount rate can be seen below in Tables 2 and 
3. OSHA believes that these estimated cost savings might be slightly 
overstated to the extent that some housekeeping outside of the 
regulated areas will still be needed to perform an engineering-control 
function in some facilities, but the Agency is unable to quantify them 
now because of the variability among facilities and controls that 
employers may implement to comply with the standard.
    e. Additional familiarization. In the FEA in support of OSHA's 2017 
Beryllium Final Rule, the Agency determined that employers would need 
to spend time familiarizing themselves with the rule and allocated 4, 
8, and 40 hours, depending on establishment size (fewer than 20 
employees, between 20 and 499 employees, and 500 or more employees, 
respectively). OSHA has similarly determined that establishments will 
need to spend time familiarizing themselves with this DFR. As the 
affected provisions in this DFR are only a fraction of all the 
provisions in the 2017 final rule and would not require any new actions 
on the part of employers, the Agency has estimated familiarization time 
of 2, 4, and 20 hours per employer, depending on establishment size, 
for a supervisor to review the changes to the beryllium rule reflected 
in this DFR. This results in an annualized cost of $9,404 using a 3 
percent discount rate and $11,421 using a 7 percent discount rate. 
Annualized costs by provision and discount rate--3 and 7 percent--can 
be seen below in Tables 2 and 3, respectively.
    f. Unchanged provisions. As discussed earlier, this DFR primarily 
serves to clarify OSHA's intent with respect to certain terms and 
requirements in OSHA's 2017 beryllium general industry standard. These 
changes largely deal with clarifying the application of various 
requirements to trace beryllium. The triggers for most provisions in 
the standard--the PEL, respiratory protection, exposure assessment, 
regulated areas, medical surveillance, medical removal protection, 
written exposure control plan, and training provisions \8\--are 
determined by factors other than beryllium concentration and are 
unchanged by this DFR. Similarly, the revised definition of 
``emergency'' in this DFR would not affect the costs estimated for the 
other provisions in the standard.
---------------------------------------------------------------------------

    \8\ While the changes in the standard do not mandate any 
additional employee training, OSHA notes that it had previously 
accounted for costs of annual re-training required by the standard 
(Document ID OSHA-H005C-2006-0870-2042, p. V-221).
---------------------------------------------------------------------------

4. Economic and Technological Feasibility

    In the FEA for the 2017 beryllium standard, OSHA concluded that the 
rule was economically and technologically feasible. This DFR does not 
impose any new requirements and has the net impact of removing a small 
amount of cost, so OSHA has determined that this final rule is also 
economically and technologically feasible.

[[Page 19944]]

5. Effects on Benefits

    This DFR clarifies aspects of the 2017 general industry beryllium 
standard to address unintended consequences regarding the applicability 
of provisions designed to protect workers from dermal contact with 
beryllium-containing materials and trace amounts of beryllium. This DFR 
makes clear that OSHA did not, and does not, intend to apply the 
provisions aimed at protecting workers from the effects of dermal 
contact to industries that only work with beryllium in trace amounts 
where there is limited or no airborne exposure. In the prior FEA, OSHA 
did not identify any quantifiable benefits from avoiding beryllium 
sensitization from dermal contact (see discussion at p. VII-16 through 
VII-18). Thus, the revisions in this DFR, which are focused on dermal 
contact, do not have any impact on OSHA's previous benefit estimates.

6. Regulatory Flexibility Act Certification

    This DFR will result in cost savings for affected small entities, 
and those savings fall below levels that could be said to have a 
significant positive economic impact on a substantial number of small 
entities.\9\ Therefore, OSHA certifies that this direct final rule 
would not have a significant impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    \9\ OSHA investigated whether the projected cost savings would 
exceed 1 percent of revenues or 5 percent of profits for small 
entities and very small entities for every industry. To determine if 
this was the case, OSHA returned to its original regulatory 
flexibility analysis (in the 2017 FEA) for small entities and very 
small entities. OSHA found that the cost savings of this DFR are 
such a small percentage of revenues and profits for every affected 
industry that OSHA's criteria would not be exceeded for any 
industry.

[[Page 19945]]



                                                      Table 1--Total Undiscounted Net Cost Savings of the Final Beryllium Standard by Year
                                                                                         [2017 Dollars]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                               Year
        Application group        ---------------------------------------------------------------------------------------------------------------------------------------------------------------
                                         1               2               3               4               5               6               7               8               9              10
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Aluminum Production.............        $613,367        $328,053        $328,053        $328,053        $328,053        $328,053        $328,053        $328,053        $328,053        $328,053
Coal Fired Utilities............           9,461               0               0               0               0               0               0               0               0               0
                                 ---------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total.......................         622,828         328,053         328,053         328,053         328,053         328,053         328,053         328,053         328,053         328,053
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                   Table 2--Annualized Net Cost Savings of Program Requirements for Industries Affected by the Final Beryllium Standard by Sector and Six-Digit NAICS Industry
                                                                        [In 2017 dollars using a 3 percent discount rate]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                      Written    Protective
Application group/                        Rule        Exposure    Regulated   Beryllium      Medical      Medical    exposure       work       Hygiene                                  Total
      NAICS            Industry     familiarization  assessment     areas     work areas  surveillance    removal     control    clothing &   areas and   Housekeeping    Training     program
                                                                                                         provision     plan      equipment    practices                                 costs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Aluminum Production
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
331313...........  Alumina                  -$240            $0          $0       $2,639           $0           $0          $0      $35,023         $415      $323,664           $0     $361,500
                    Refining and
                    Primary
                    Aluminum
                    Production.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Coal Fired Utilities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
221112...........  Fossil Fuel             -6,209             0           0        8,087            0            0           0            0            0             0            0        1,878
                    Electric Power
                    Generation.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
311221...........  Wet Corn                  -282             0           0          260            0            0           0            0            0             0            0          -22
                    Milling.
311313...........  Beet Sugar                -353             0           0          303            0            0           0            0            0             0            0          -49
                    Manufacturing.
311942...........  Spice and                  -41             0           0           43            0            0           0            0            0             0            0            2
                    Extract
                    Manufacturing.
312120...........  Breweries......            -54             0           0           43            0            0           0            0            0             0            0          -11
321219...........  Reconstituted              -20             0           0           22            0            0           0            0            0             0            0            2
                    Wood Product
                    Manufacturing.
322110...........  Pulp Mills.....            -32             0           0           22            0            0           0            0            0             0            0          -10
322121...........  Paper (except             -437             0           0          238            0            0           0            0            0             0            0         -199
                    Newsprint)
                    Mills.
322122...........  Newsprint Mills           -705             0           0          519            0            0           0            0            0             0            0         -186
322130...........  Paperboard                -447             0           0          346            0            0           0            0            0             0            0         -101
                    Mills.
325211...........  Plastics                   -85             0           0           87            0            0           0            0            0             0            0            2
                    Material and
                    Resin
                    Manufacturing.
325611...........  Soap and Other             -23             0           0           22            0            0           0            0            0             0            0           -1
                    Detergent
                    Manufacturing.
327310...........  Cement                     -39             0           0           43            0            0           0            0            0             0            0            4
                    Manufacturing.
333111b..........  Farm Machinery             -24             0           0           22            0            0           0            0            0             0            0           -2
                    and Equipment
                    Manufacturing.
336510b..........  Railroad                   -26             0           0           22            0            0           0            0            0             0            0           -4
                    Rolling Stock
                    Manufacturing.
611310...........  Colleges,                 -387             0           0          195            0            0           0            0            0             0            0         -193
                    Universities,
                    and
                    Professional
                    Schools.
                                   -------------------------------------------------------------------------------------------------------------------------------------------------------------
Total:
  General          -9,404.........              0             0      12,913            0            0            0      35,023          415      323,664             0      362,610
   Industry
   Subtotal.
  Construction     0..............              0             0           0            0            0            0           0            0            0             0            0
   Subtotal.

[[Page 19946]]

 
  Maritime         0..............              0             0           0            0            0            0           0            0            0             0            0
   Subtotal.
    Total, All     -9,404.........              0             0      12,913            0            0            0      35,023          415      323,664             0      362,610
     Industries.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                   Table 3--Annualized Net Cost Savings of Program Requirements for Industries Affected by the Final Beryllium Standard by Sector and Six-Digit NAICS Industry
                                                                        [In 2017 dollars using a 7 percent discount rate]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                      Written    Protective
Application Group/                        Rule        Exposure    Regulated   Beryllium      Medical      Medical    exposure       work       Hygiene                                  Total
      NAICS            Industry     familiarization  assessment     areas     work areas  surveillance    removal     control    clothing &   areas and   Housekeeping    Training     program
                                                                                                         provision     plan      equipment    practices                                 costs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Aluminum Production
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
331313...........  Alumina                  -$291            $0          $0       $3,205           $0           $0          $0      $35,023         $415      $330,324           $0     $368,675
                    Refining and
                    Primary
                    Aluminum
                    Production.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Coal Fired Utilities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
221112...........  Fossil Fuel             -7,541             0           0        9,822            0            0           0            0            0             0            0        2,281
                    Electric Power
                    Generation.
311221...........  Wet Corn                  -342             0           0          315            0            0           0            0            0             0            0          -27
                    Milling.
311313...........  Beet Sugar                -428             0           0          368            0            0           0            0            0             0            0          -60
                    Manufacturing.
311942...........  Spice and                  -50             0           0           53            0            0           0            0            0             0            0            3
                    Extract
                    Manufacturing.
312120...........  Breweries......            -66             0           0           53            0            0           0            0            0             0            0          -13
321219...........  Reconstituted              -24             0           0           26            0            0           0            0            0             0            0            3
                    Wood Product
                    Manufacturing.
322110...........  Pulp Mills.....            -39             0           0           26            0            0           0            0            0             0            0          -12
322121...........  Paper (except             -531             0           0          289            0            0           0            0            0             0            0         -242
                    Newsprint)
                    Mills.
322122...........  Newsprint Mills           -856             0           0          631            0            0           0            0            0             0            0         -225
322130...........  Paperboard                -543             0           0          421            0            0           0            0            0             0            0         -123
                    Mills.
325211...........  Plastics                  -103             0           0          105            0            0           0            0            0             0            0            2
                    Material and
                    Resin
                    Manufacturing.
325611...........  Soap and Other             -28             0           0           26            0            0           0            0            0             0            0           -2
                    Detergent
                    Manufacturing.
327310...........  Cement                     -48             0           0           53            0            0           0            0            0             0            0            5
                    Manufacturing.
333111b..........  Farm Machinery             -29             0           0           26            0            0           0            0            0             0            0           -3
                    and Equipment
                    Manufacturing.
336510b..........  Railroad                   -31             0           0           26            0            0           0            0            0             0            0           -5
                    Rolling Stock
                    Manufacturing.
611310...........  Colleges,                 -471             0           0          237            0            0           0            0            0             0            0         -234
                    Universities,
                    and
                    Professional
                    Schools.
                                   -------------------------------------------------------------------------------------------------------------------------------------------------------------
Total:
  General          -11,421........              0             0      15,682            0            0            0      35,023          415      330,324             0      370,022
   Industry
   Subtotal.

[[Page 19947]]

 
  Construction     0..............              0             0           0            0            0            0           0            0            0             0            0
   Subtotal.
  Maritime         0..............              0             0           0            0            0            0           0            0            0             0            0
   Subtotal.
    Total, All     -11,421........              0             0      15,682            0            0            0      35,023          415      330,324             0      370,022
     Industries.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 19948]]

VII. OMB Review Under the Paperwork Reduction Act of 1995

    This rule contains no information collection requirements subject 
to OMB approval under the Paperwork Reduction Act of 1995 (PRA), 44 
U.S.C. 3501 et seq., and its implementing regulations at 5 CFR part 
1320. The PRA defines a collection of information as the obtaining, 
causing to be obtained, soliciting, or requiring the disclosure to 
third parties or the public of facts or opinions by or for an agency 
regardless of form or format. See 44 U.S.C. 3502(3)(A). While not 
affected by this rulemaking, the Department has cleared information 
collections related to occupational exposure to beryllium standards--
general industry, 29 CFR 1910.1024; construction, 29 CFR 1926.1124; and 
shipyards, 29 CFR 1915.1024--under control number 1218-0267. The 
existing approved information collections are unchanged by this 
rulemaking. The Department welcomes comments on this determination.

VIII. Federalism

    OSHA reviewed this DFR in accordance with the Executive Order on 
Federalism (E.O. 13132, 64 FR 43255, August 10, 1999), which requires 
that Federal agencies, to the extent possible, refrain from limiting 
State policy options, consult with States prior to taking any actions 
that would restrict State policy options, and take such actions only 
when clear constitutional and statutory authority exists and the 
problem is national in scope. E.O. 13132 provides for preemption of 
State law only with the expressed consent of Congress. Any such 
preemption is to be limited to the extent possible.
    Under Section 18 of the OSH Act, 29 U.S.C. 651 et seq., Congress 
expressly provides that States may adopt, with Federal approval, a plan 
for the development and enforcement of occupational safety and health 
standards; States that obtain Federal approval for such a plan are 
referred to as ``State Plan States'' (29 U.S.C. 667). Occupational 
safety and health standards developed by State Plan States must be at 
least as effective in providing safe and healthful employment and 
places of employment as the Federal standards. Subject to these 
requirements, State Plan States are free to develop and enforce under 
State law their own requirements for safety and health standards.
    This DFR complies with E.O. 13132. In States without OSHA approved 
State Plans, Congress expressly provides for OSHA standards to preempt 
State occupational safety and health standards in areas addressed by 
the Federal standards. In these States, this DFR would limit State 
policy options in the same manner as every standard promulgated by 
OSHA. In States with OSHA approved State Plans, this rulemaking does 
not significantly limit State policy options.

IX. State Plan States

    When Federal OSHA promulgates a new standard or more stringent 
amendment to an existing standard, the 28 States and U.S. Territories 
with their own OSHA approved occupational safety and health plans 
(``State Plan States'') must amend their standards to reflect the new 
standard or amendment, or show OSHA why such action is unnecessary, 
e.g., because an existing State standard covering this area is ``at 
least as effective'' as the new Federal standard or amendment. 29 CFR 
1953.5(a). The State standard must be at least as effective as the 
final Federal rule, must be applicable to both the private and public 
(State and local government employees) sectors, and must be completed 
within six months of the promulgation date of the final Federal rule. 
When OSHA promulgates a new standard or amendment that does not impose 
additional or more stringent requirements than an existing standard, 
State Plan States are not required to amend their standards, although 
the Agency may encourage them to do so. The 28 States and U.S. 
Territories with OSHA approved occupational safety and health plans 
are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, 
Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, 
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, 
Virginia, Washington, and Wyoming; Connecticut, Illinois, Maine, New 
Jersey, New York, and the Virgin Islands have OSHA approved State Plans 
that apply to State and local government employees only.
    This DFR clarifies requirements and addresses the unintended 
consequences associated with provisions intended to address the effects 
of dermal contact with beryllium as applied to trace beryllium. It 
imposes no new requirements. Therefore, no new State standards would be 
required beyond those already required by the promulgation of the 
January 2017 beryllium standard for general industry. State-Plan States 
may nonetheless choose to conform to these revisions.

X. Unfunded Mandates Reform Act

    OSHA reviewed this DFR according to the Unfunded Mandates Reform 
Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.) and Executive Order 12875 
(58 FR 58093). As discussed above in Section VI (``Economic Analysis 
and Regulatory Flexibility Certification'') of this preamble, the 
Agency determined that this DFR does not impose significant additional 
costs on any private- or public-sector entity. Accordingly, this DFR 
does not require significant additional expenditures by either public 
or private employers.
    As noted above under Section IX (``State-Plan States''), the 
Agency's standards do not apply to State and local governments except 
in States that have elected voluntarily to adopt a State Plan approved 
by the Agency. Consequently, this DFR does not meet the definition of a 
``Federal intergovernmental mandate'' (see Section 421(5) of the UMRA 
(2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the Agency 
certifies that this DFR does not mandate that State, local, or Tribal 
governments adopt new, unfunded regulatory obligations. Further, OSHA 
concludes that the rule would not impose a Federal mandate on the 
private sector in excess of $100 million (adjusted annually for 
inflation) in expenditures in any one year.

List of Subjects in 29 CFR Part 1910

    Beryllium, General industry, Health, Occupational safety and 
health.

    Signed at Washington, DC, on April 27, 2018.
Loren Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

    For the reasons stated in the preamble, OSHA amends 29 CFR part 
1910 as follows:

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

Subpart Z--Toxic and Hazardous Substances

0
1. The authority section for subpart Z of part 1910 continues to read 
as follows:

    Authority: 29 U.S.C. 653, 655, 657) Secretary of Labor's Order 
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 
(55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 
65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 
3912), 29 CFR part 1911; and 5 U.S.C. 553, as applicable.

    Section 1910.1030 also issued under Pub. L. 106-430, 114 Stat. 
1901.
    Section 1910.1201 also issued under 49 U.S.C. 5101 et seq.

0
2. Amend Sec.  1910.1024 as follows:

[[Page 19949]]

0
a. Revise the definition of ``Beryllium work area'' in paragraph (b);
0
b. Add definitions for ``Contaminated with beryllium and beryllium-
contaminated'' and ``Dermal contact with beryllium'' in alphabetical 
order in paragraph (b);
0
c. Revise the definition of ``Emergency'' in paragraph (b);
0
d. Revise paragraph (f)(2);
0
e. Revise paragraph (h)(3)(ii);
0
f. Revise paragraphs (i)(3)(i)(B), (i)(3)(ii)(B), (i)(4)(i) and (ii); 
and
0
g. Revise paragraphs (j)(1)(i), (j)(2)(i) and (ii), and (j)(3).
    The revisions and additions read as follows:


Sec.  1910.1024  Beryllium.

* * * * *
    (b) * * *
    Beryllium work area means any work area:
    (i) Containing a process or operation that can release beryllium 
and that involves material that contains at least 0.1 percent beryllium 
by weight; and
    (ii) Where employees are, or can reasonably be expected to be, 
exposed to airborne beryllium at any level or where there is the 
potential for dermal contact with beryllium.
* * * * *
    Contaminated with beryllium and beryllium-contaminated mean 
contaminated with dust, fumes, mists, or solutions containing beryllium 
in concentrations greater than or equal to 0.1 percent by weight.
    Dermal contact with beryllium means skin exposure to:
    (i) Soluble beryllium compounds containing beryllium in 
concentrations greater than or equal to 0.1 percent by weight;
    (ii) Solutions containing beryllium in concentrations greater than 
or equal to 0.1 percent by weight; or
    (iii) Dust, fumes, or mists containing beryllium in concentrations 
greater than or equal to 0.1 percent by weight.
* * * * *
    Emergency means any occurrence such as, but not limited to, 
equipment failure, rupture of containers, or failure of control 
equipment, which may or does result in an uncontrolled and unintended 
release of airborne beryllium that presents a significant hazard.
* * * * *
    (f) * * *
    (2) Engineering and work practice controls. (i) The employer must 
use engineering and work practice controls to reduce and maintain 
employee airborne exposure to beryllium to or below the PEL and STEL, 
unless the employer can demonstrate that such controls are not 
feasible. Wherever the employer demonstrates that it is not feasible to 
reduce airborne exposure to or below the PELs with engineering and work 
practice controls, the employer must implement and maintain engineering 
and work practice controls to reduce airborne exposure to the lowest 
levels feasible and supplement these controls using respiratory 
protection in accordance with paragraph (g) of this standard.
    (ii) For each operation in a beryllium work area that releases 
airborne beryllium, the employer must ensure that at least one of the 
following is in place to reduce airborne exposure:
    (A) Material and/or process substitution;
    (B) Isolation, such as ventilated partial or full enclosures;
    (C) Local exhaust ventilation, such as at the points of operation, 
material handling, and transfer; or
    (D) Process control, such as wet methods and automation.
    (iii) An employer is exempt from using the controls listed in 
paragraph (f)(2)(ii) of this standard to the extent that:
    (A) The employer can establish that such controls are not feasible; 
or
    (B) The employer can demonstrate that airborne exposure is below 
the action level, using no fewer than two representative personal 
breathing zone samples taken at least 7 days apart, for each affected 
operation.
* * * * *
    (h) * * *
    (3) * * *
    (ii) The employer must ensure that beryllium is not removed from 
beryllium-contaminated personal protective clothing and equipment by 
blowing, shaking, or any other means that disperses beryllium into the 
air.
* * * * *
    (i) * * *
    (3) * * *
    (i) * * *
    (B) Employee's hair or body parts other than hands, face, and neck 
can reasonably be expected to become contaminated with beryllium.
    (ii) * * *
    (B) The employee's hair or body parts other than hands, face, and 
neck could reasonably have become contaminated with beryllium.
    (4) * * *
    (i) Beryllium-contaminated surfaces in eating and drinking areas 
are as free as practicable of beryllium;
    (ii) No employees enter any eating or drinking area with beryllium-
contaminated personal protective clothing or equipment unless, prior to 
entry, surface beryllium has been removed from the clothing or 
equipment by methods that do not disperse beryllium into the air or 
onto an employee's body; and
* * * * *
    (j) * * *
    (1) * * *
    (i) The employer must maintain all surfaces in beryllium work areas 
and regulated areas as free as practicable of beryllium and in 
accordance with the written exposure control plan required under 
paragraph (f)(1) and the cleaning methods required under paragraph 
(j)(2) of this standard; and
* * * * *
    (2) * * *
    (i) The employer must ensure that surfaces in beryllium work areas 
and regulated areas are cleaned by HEPA-filtered vacuuming or other 
methods that minimize the likelihood and level of airborne exposure.
    (ii) The employer must not allow dry sweeping or brushing for 
cleaning surfaces in beryllium work areas or regulated areas unless 
HEPA-filtered vacuuming or other methods that minimize the likelihood 
and level of airborne exposure are not safe or effective.
* * * * *
    (3) Disposal and recycling. For materials that contain beryllium in 
concentrations of 0.1 percent by weight or more or are contaminated 
with beryllium, the employer must ensure that:
    (i) Materials designated for disposal are disposed of in sealed, 
impermeable enclosures, such as bags or containers, that are labeled in 
accordance with paragraph (m)(3) of this standard; and
    (ii) Materials designated for recycling are cleaned to be as free 
as practicable of surface beryllium contamination and labeled in 
accordance with paragraph (m)(3) of this standard, or place in sealed, 
impermeable enclosures, such as bags or containers, that are labeled in 
accordance with paragraph (m)(3) of this standard.
* * * * *
[FR Doc. 2018-09306 Filed 5-4-18; 8:45 am]
 BILLING CODE 4510-26-P