[Federal Register Volume 84, Number 189 (Monday, September 30, 2019)]
[Rules and Regulations]
[Pages 51377-51400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21037]


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

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1915 and 1926

[Docket No. OSHA-H005C-2006-0870]
RIN 1218-AD21


Occupational Exposure to Beryllium and Beryllium Compounds in 
Construction and Shipyard Sectors

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

ACTION: Final rule.

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

SUMMARY: OSHA is finalizing the proposed rule on occupational exposure 
to beryllium and beryllium compounds in construction and shipyards by 
delaying the compliance deadlines for nearly all provisions of the 
standards to September 30, 2020. The one exception to the September 30, 
2020 compliance deadline is for the permissible exposure limit (PEL) 
and the short-term exposure limit (STEL), which OSHA has been enforcing 
since May 11, 2018. This rule confirms that the exposure limits remain 
in effect. OSHA is not adopting the portion of the proposed rule that 
would have revised OSHA's existing beryllium standards for construction 
and shipyards to revoke the ancillary provisions. OSHA finds that other 
OSHA standards do not duplicate the requirements of the ancillary 
provisions in the beryllium standards for construction and shipyards in 
their entirety. Thus revoking all of the ancillary provisions and 
leaving only the PEL and STEL would be inconsistent with OSHA's 
statutory mandate to protect workers from the demonstrated significant 
risks of material impairment of health resulting from exposure to 
beryllium and beryllium compounds. OSHA will publish a new proposal for 
the construction and shipyards beryllium standards, to seek comment on 
different changes OSHA is considering.

DATES: This rule is effective September 30, 2019.

ADDRESSES: For purposes of 28 U.S.C. 2112(a), OSHA designates Edmund C. 
Baird, Associate Solicitor of Labor for Occupational Safety and Health, 
to receive petitions for review of the final rule. Contact the 
Associate Solicitor at the Office of the Solicitor, Room S-4004, U.S. 
Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210; 
telephone: (202) 693-5445.
    Copies of this Federal Register document and news releases: 
Electronic copies of these documents are available at OSHA's web page 
at https://www.osha.gov.

FOR FURTHER INFORMATION CONTACT: 
    Press inquiries: Mr. Frank Meilinger, OSHA Office of 
Communications; telephone: (202) 693-1999; email: 
[email protected].
    General information and technical inquiries: Mr. William Perry or 
Ms. Maureen Ruskin, Directorate of Standards and Guidance, Occupational 
Safety and Health Administration; telephone: (202) 693-1950; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Pertinent Legal Authority
III. Events Leading to the Final Rule
IV. Final Economic Analysis
V. OMB Review Under the Paperwork Reduction Act of 1995
VI. Federalism
VII. State Plan States
VIII. Unfunded Mandates Reform Act
IX. Environmental Impacts
X. Consultation and Coordination With Indian Tribal Governments
XI. Health and Risk
XII. Summary and Explanation of the Final Rule
Authority and Signature
Amendments to Standards

Citation Method

    In the docket for the beryllium rulemaking, found at http://www.regulations.gov, every submission

[[Page 51378]]

was assigned a document identification (ID) number that consists of the 
docket number (OSHA-H005C-2006-0870) followed by an additional four-
digit number. For example, the document ID number for OSHA's 
Preliminary Economic Analysis and Initial Regulatory Flexibility 
Analysis is OSHA-H005C-2006-0870-0426. Some document ID numbers include 
one or more attachments (see, e.g., Document ID OSHA-H005C-2006-0870-
2142).
    When citing exhibits in the docket, OSHA includes the term 
``Document ID'' followed by the last four digits of the document ID 
number, the attachment number or other attachment identifier, if 
necessary for clarity, and page numbers (designated ``p.'' or ``Tr.'' 
for pages from a hearing transcript). In a citation that contains two 
or more document ID numbers, the document ID numbers are separated by 
semicolons.

I. Executive Summary

    On June 27, 2017, OSHA published a proposed rule on Occupational 
Exposure to Beryllium and Beryllium Compounds in Construction and 
Shipyards (82 FR 29182). In it, OSHA proposed revoking the ancillary 
provisions in the beryllium standards for construction (29 CFR 
1926.1124) and shipyards (29 CFR 1915.1024), while retaining the PEL of 
0.2 ug/m\3\ and the STEL of 2.0 ug/m\3\. The basis for the proposal was 
that other OSHA standards apply to the primary operations in which 
exposures to beryllium occur in construction (abrasive blasting) and 
shipyards (abrasive blasting and welding), and that those other 
standards might adequately protect workers from exposure to beryllium 
in those operations. OSHA asked for comment on whether such an approach 
would provide adequate protection, and whether OSHA should retain any 
or all of the ancillary provisions (82 FR at 29183). OSHA also 
requested comment on whether OSHA should retain the medical 
surveillance provisions in particular (82 FR at 29183). Finally, OSHA 
stated that it was considering extending the compliance dates for the 
construction and shipyards standards for a year in order to ``give 
affected employers additional time to come into compliance with its 
requirements, which could be warranted by the uncertainty created by 
this proposal'' (82 FR at 29183).
    OSHA has decided not to proceed with the proposed revocation of the 
construction and shipyards standards' ancillary provisions. As 
discussed herein, the agency has determined that there is not complete 
overlap in protections between the standards' ancillary provisions and 
other OSHA standards. Therefore, because of its statutory 
responsibility to protect workers who face significant risk of material 
impairment of health from beryllium exposure, the agency cannot issue a 
final rule revoking all of the ancillary provisions in the standards. 
To the extent there is overlap between specific requirements within the 
ancillary provisions and other OSHA standards, OSHA will account for 
that overlap in the new proposal. In that rulemaking, OSHA will provide 
the public with notice of the more limited changes the agency believes 
may be appropriate, either because there is some measure of overlap 
with other OSHA standards or for separate reasons, such as to make the 
standards more consistent with the changes OSHA has made, or proposed 
to make, to the general industry standard for beryllium (see 83 FR 
31045; 83 FR 63746) in the period since OSHA issued the construction 
and shipyards proposal in June 2017.
    After careful consideration of the comments and information 
received in response to the proposal, OSHA is delaying the compliance 
dates for all ancillary provisions of the construction and shipyards 
standards for beryllium until September 30, 2020. This final rule has 
no effect on compliance with the PEL and STEL requirements of the 
standards, which have been enforced since May 2018. OSHA's decision to 
delay compliance obligations for the ancillary provisions reflects the 
agency's determination that it would be unreasonable to expect 
employers to comply by the dates in the 2017 final rule given the 
agency's decisions to retain all ancillary provisions in this final 
rule and proceed with a separate rulemaking to propose different 
amendments to the standards. The uncertainty inherent in this 
regulatory posture makes additional time essential. Requiring 
compliance with the 2017 final rule, or even requiring employers to 
expend time and money to determine how to comply with the 2017 final 
rule, would make little sense when the standards may ultimately be 
amended via the forthcoming rulemaking.

II. Pertinent Legal Authority

    The purpose of the Occupational Safety and Health Act of 1970 
(``the OSH Act'' or ``the Act''), 29 U.S.C. 651 et al., 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 occupational safety and health standards 
pursuant to notice and comment (see 29 U.S.C. 655(b)).
    An occupational safety or health standard is a standard ``which 
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)). The Act provides that in promulgating 
health standards dealing with toxic materials or harmful physical 
agents, such as the January 9, 2017, final rule regulating occupational 
exposure to beryllium, the Secretary must set the standard which most 
adequately assures, to the extent feasible, on the basis of the best 
available evidence that no employee will suffer material impairment of 
health or functional capacity even if such employee has regular 
exposure to the hazard dealt with by such standard for the period of 
his working life (29 U.S.C. 655(b)(5)).
    The Supreme Court has held that before the Secretary can promulgate 
any permanent health or safety standard, he must make a threshold 
finding that significant risk is present and that such risk can be 
eliminated or lessened by a change in practices (see Industrial Union 
Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-42 (1980) 
(plurality opinion) (``Benzene'')). Thus, section 6(b)(5) of the Act 
requires health standards to reduce significant risk to the extent 
feasible (see id.).
    The Court further observed that what constitutes ``significant 
risk'' is ``not a mathematical straitjacket'' and must be ``based 
largely on policy considerations'' (Id. at 655, 655 n.62). OSHA 
retains:

great discretion . . . under Section 3(8) [of the Act], especially 
in an area where scientific certainty is impossible. In the first 
instance, it is the agency itself that determines the existence of a 
``significant'' risk. . . . In making the difficult judgment as to 
what level of harm is unacceptable, the agency may rely on its own 
sound ``considerations of policy'' as well as hard factual data. . . 
.

(United Steelworkers v. Marshall, 647 F.2d 1189, 1248 (D.C. Cir. 1980) 
(``Lead I'') (internal citations omitted)). When evaluating such 
considerations, OSHA exercises its discretion and its ``delegated power 
to make within certain limits decisions that Congress normally makes 
itself'' (Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 475 
(D.C. Cir. 1974)). Accordingly, OSHA's discretionary authority under 
the Act is broad (see Lead I, 647 F.2d at 1230). Indeed, a number of 
terms of the statute give

[[Page 51379]]

OSHA wide discretion to devise means to achieve the congressionally 
mandated goal of ensuring worker safety and health (Id.). Once OSHA 
makes its significant risk finding, the standard must be ``reasonably 
necessary or appropriate'' to reduce or eliminate that risk within the 
meaning of section 3(8) of the Act, 29 U.S.C. 652(8), and Benzene, 448 
U.S. at 642 (see Bldg. and Constr. Trades Dep't v. Brock, 838 F.2d 
1258, 1269 (D.C. Cir. 1988) (``Asbestos II'')). In choosing among 
regulatory alternatives, however, ``[t]he determination that [one 
standard] is appropriate, as opposed to a marginally [more or less 
protective] standard, is a technical decision entrusted to the 
expertise of the agency'' (Nat'l Mining Ass'n v. Mine Safety and Health 
Admin., 116 F.3d 520, 528 (D.C. Cir. 1997) (analyzing a Mine Safety and 
Health Administration standard under the Benzene significant risk 
standard)). Where there is significant risk below the PEL, OSHA should 
use its regulatory authority to impose additional requirements on 
employers when those requirements will result in a greater than de 
minimis incremental benefit to workers' health (see Asbestos II, 838 
F.2d at 1274).
    The Act also authorizes the Secretary to modify any occupational 
safety or health standard. 29 U.S.C. 655(b). The Supreme Court has 
acknowledged that regulatory agencies do not establish rules of conduct 
to last forever, and agencies may revise their rules if supported by a 
reasoned analysis for the change (see Motor Vehicle Mfrs. Ass'n v. 
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983)). While ``it may 
be easier for an agency to justify a deregulatory action, the direction 
in which an agency chooses to move does not alter the standard of 
judicial review established by law'' (Id. at 43).
    OSHA is required to set standards ``on the basis of the best 
available evidence,'' 29 U.S.C. 655(b)(5), and its determinations are 
``conclusive'' if supported by ``substantial evidence in the record 
considered as a whole,'' 29 U.S.C. 655(f). As noted above, the Supreme 
Court, in Benzene, explained that OSHA must look to ``a body of 
reputable scientific thought'' in making its determinations, while 
noting that a reviewing court must ``give OSHA some leeway where its 
findings must be made on the frontiers of scientific knowledge'' (448 
U.S. at 656). When there is disputed scientific evidence in the record, 
OSHA must review the evidence on both sides and ``reasonably resolve'' 
the dispute (Pub. Citizen Health Research Grp. v. Tyson, 796 F.2d 1479, 
1500 (D.C. Cir. 1986)). As the D.C. Circuit has noted, where ``OSHA has 
the expertise we lack and it has exercised that expertise by carefully 
reviewing the scientific data,'' a dispute within the scientific 
community is not occasion for the reviewing court to take sides about 
which view is correct (Id.).
    OSHA standards must be both technologically and economically 
feasible (see Lead I, 647 F.2d at 1264). 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'')). The 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, the 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)). A court must examine the cost 
of compliance with an OSHA standard:

in relation to the financial health and profitability of the 
industry and the likely effect of such costs on unit consumer prices 
. . . . [T]he practical question is whether the standard threatens 
the competitive stability of an industry, . . . or whether any 
intra-industry or inter-industry discrimination in the standard 
might wreck such stability or lead to undue concentration.

(Id. (internal citations omitted)). The courts have further observed 
that granting companies reasonable time to comply with new PELs may 
enhance economic feasibility (see Id.).
    Because section 6(b)(5) of the Act explicitly imposes the ``to the 
extent feasible'' limitation on the setting of health standards, OSHA 
is not permitted to use cost-benefit analysis to make its standards-
setting decisions (29 U.S.C. 655(b)(5)). An OSHA standard must be cost 
effective, which means that the protective measures it requires are the 
least costly of the available alternatives that achieve the same level 
of protection, but OSHA cannot choose an alternative that provides a 
lower level of protection because it is less costly (see Int'l Union, 
UAW v. OSHA, 37 F.3d 655, 668 (D.C. Cir. 1994); see also Cotton Dust, 
452 U.S. at 514 n.32).

III. Events Leading to the Final Rule

    On January 9, 2017, OSHA published its final rule Occupational 
Exposure to Beryllium and Beryllium Compounds in the Federal Register 
(82 FR 2470-2757). OSHA issued three separate standards for general 
industry (29 CFR 1910.1024), construction (29 CFR 1926.1124), and 
shipyards (29 CFR 1915.1024). Each standard contained a new, lower PEL 
of 0.2 [mu]g/m\3\ and a STEL of 2.0 [mu]g/m\3\, along with ancillary 
provisions to augment the protection provided by the new exposure 
limits. The ancillary provisions included requirements for exposure 
assessment, methods for controlling exposure, respiratory protection, 
personal protective clothing and equipment (PPE), housekeeping, medical 
surveillance, hazard communication, and recordkeeping.
    On June 27, 2017, OSHA published an NPRM proposing to revoke the 
ancillary provisions for both the construction and shipyards standards 
while retaining the new lower PEL of 0.2 [micro]g/m\3\ and STEL of 2.0 
[mu]g/m\3\ for those sectors (82 FR 29182).\1\ OSHA stated in the 
proposal that it was also considering extending the compliance dates in 
the January 9, 2017, final rule by a year for the construction and 
shipyard standards. OSHA reasoned that this potential extension would 
give affected employers additional time to come into compliance with 
the final rule's requirements, which could be warranted by the 
uncertainty created by the proposal. OSHA also stated in the proposal 
that it would not enforce the construction and shipyards standards 
without further notice while the rulemaking was underway.\2\ OSHA gave 
the public 60 days to comment on the proposal, and received about 70 
unique comments, which OSHA carefully reviewed in developing this final 
rule.
---------------------------------------------------------------------------

    \1\ For a more comprehensive discussion of the events leading to 
the proposed rule, see the preamble to the 2017 NPRM (82 FR at 
29185-88).
    \2\ Subsequently, in March 2018, OSHA stated that it would begin 
enforcing the PEL and STEL on May 11, 2018 (see Memorandum for 
Regional Administrators, Delay of Enforcement of the Beryllium 
Standards under 29 CFR 1910.1024, 29 CFR 1915.1024, and 29 CFR 
1926.1124, Mar. 2, 2018, available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-03-02).
---------------------------------------------------------------------------

    On May 7, 2018, OSHA issued a direct final rule (DFR) adopting a 
number of clarifying amendments to the general industry standard to 
address the application of that standard to materials containing trace 
amounts of beryllium (83 FR 19936). The DFR amended the text of the 
general industry standard to clarify OSHA's intent with respect to 
certain terms in the standard, including the definition of beryllium 
work area, the definition of emergency, and the meaning of the terms 
dermal contact and beryllium contamination. The DFR also clarified 
OSHA's intent with respect to provisions for disposal and recycling and 
with respect to provisions

[[Page 51380]]

that the agency intended to apply only where skin can be exposed to 
materials containing at least 0.1% beryllium by weight. The DFR became 
effective on July 6, 2018, because OSHA did not receive significant 
adverse comment in response to the DFR (see 83 FR 31045).
    On June 1, 2018, OSHA published a proposal to extend the compliance 
date for certain ancillary requirements of the general industry 
beryllium standard, from March 12, 2018, to December 12, 2018 (83 FR 
25536). OSHA proposed to delay the compliance dates for the following 
provisions in the general industry standard: Beryllium work areas and 
regulated areas (paragraph (e)), written exposure control plans 
(paragraph (f)(1)), personal protective clothing and equipment 
(paragraph (h)), hygiene areas and practices (paragraph (i) except for 
change rooms and showers), housekeeping (paragraph (j)), communication 
of hazards (paragraph (m)), and recordkeeping (paragraph (n)). OSHA 
reasoned that: (1) It planned to propose modifications to ancillary 
provisions of the beryllium general industry standard in response to 
stakeholder questions and concerns; (2) it would be undesirable for 
both the agency and the regulated community to begin enforcement of the 
ancillary provisions of the standard that would be affected by the 
upcoming rulemaking; (3) enforcing compliance with the relevant 
ancillary requirements, as currently written, before publishing the 
agreed-upon proposal, would likely result in employers taking 
unnecessary measures to comply with provisions that OSHA intended to 
clarify; and (4) the proposed compliance date extension would give OSHA 
time to prepare and publish the planned substantive general industry 
NPRM to amend the standard before employers were required to comply 
with the affected provisions of the rule. OSHA adopted the extension of 
the compliance dates, as proposed, on August 9, 2018 (83 FR 39351).
    On December 11, 2018, OSHA published a substantive NPRM to modify 
several of the general industry beryllium standard's definitions, along 
with the provisions for methods of compliance, personal protective 
clothing and equipment, hygiene areas and practices, housekeeping, 
medical surveillance, communication of hazards, and recordkeeping (83 
FR 63746). OSHA reasoned in part that the proposed modifications would 
provide clarification and simplify or improve compliance.

IV. Final Economic Analysis

A. Summary of Economic Impact

    OMB has determined that this final rule is not economically 
significant. The rule revises 29 CFR 1915.1024(o)(2) and 29 CFR 
1926.1124(o)(2) to extend the deadline for compliance with certain 
provisions of the construction and shipyards beryllium standards until 
September 30, 2020. OSHA's final economic analysis shows that this 
compliance date extension will result in a net cost savings for the 
affected industries. At a 3 percent discount rate over 10 years, the 
extension will result in net annual cost savings of $0.36 million per 
year; at a discount rate of 7 percent over 10 years, the net annual 
cost savings is $0.85 million per year. When the Department uses a 
perpetual time horizon, the annualized cost savings of the final rule 
is $0.42 million with a 7 percent discount rate. The rule is an 
Executive Order (E.O.) 13771 deregulatory action.

B. Final Economic Analysis and Regulatory Flexibility 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 effects of certain rules that 
OSHA promulgates. Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility.
    This final rule is not an ``economically significant regulatory 
action'' under E.O. 12866 or UMRA, or a ``major rule'' under the 
Congressional Review Act (5 U.S.C. 801 et seq.). Neither the benefits 
nor the costs of this final rule would exceed $100 million in any given 
year. This final rule to extend the compliance dates for the ancillary 
provisions in the construction and shipyards beryllium standards 
results in cost savings. Cost savings arise in this context because a 
delay in incurred costs for employers would allow them to invest the 
funds (and earn an expected return at the going interest rate) that 
would otherwise have been spent to comply with those provisions.
    At a discount rate of 3 percent, this final compliance-date 
extension yields annualized cost savings of $0.36 million per year for 
10 years. At a discount rate of 7 percent, this final rule yields an 
annualized cost savings of $0.85 million per year for 10 years. When 
the Department uses a perpetual time horizon to allow for cost 
comparisons under E.O. 13771 (82 FR 9339, Jan. 30, 2017), the 
annualized cost savings of this final compliance date extension are 
$0.42 million at a discount rate of 7 percent.
1. Changes to the Baseline: Updating to 2018 Dollars and Removing 
Familiarization Costs; Discussion of Overhead Costs
    Because more than two years have elapsed since promulgation of the 
beryllium standards on January 9, 2017, OSHA has updated the projected 
costs for construction and shipyards contained in the final economic 
analysis that accompanied the rule from 2015 to 2018 dollars using the 
latest Occupational Employment Statistics (OES) wage data (for 2018). 
Additionally, although familiarization costs were included in the cost 
estimates developed in the 2017 final economic analysis, OSHA expects 
that those costs have already been incurred by affected employers,\3\ 
and is excluding them from its analysis of the cost savings associated 
with this extension of compliance dates. Thus, baseline costs for this 
final economic analysis (FEA) are the projected costs from the 2017 
final economic analysis, updated to 2018 dollars, less familiarization 
costs.
---------------------------------------------------------------------------

    \3\ In the 2017 NPRM, the agency estimated no cost savings for 
familiarization with the new beryllium standards because it believed 
all rule familiarization costs had already been incurred (82 FR at 
29209). The agency received no comments disagreeing with this 
estimate.
---------------------------------------------------------------------------

    OSHA notes that it did not include an overhead labor cost in the 
2017 analysis and has not accounted for such costs in this FEA. There 
is not one broadly accepted overhead rate, and the use of overhead to 
estimate the marginal costs of labor raises a number of issues that 
should be addressed before applying overhead costs to analyze the cost 
implications of any specific regulation. 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,\4\ and government contractors have reportedly used 50 
percent for on-site (i.e. company site) overhead.\5\ Some

[[Page 51381]]

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.
---------------------------------------------------------------------------

    \4\ Cody Rice, U.S. Environmental Protection Agency, ``Wage 
Rates for Economic Analyses of the Toxics Release Inventory 
Program,'' June 10, 2002 (Document ID 2025). 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.
    \5\ Grant Thornton LLP, 2017 Government Contractor Survey, 
https://www.grantthornton.com/-/media/content-page-files/public-sector/pdfs/surveys/2018/2017-government-contractor-survey. 
According to Grant Thornton's 2017 Government Contractor Survey, on-
site rates are generally higher than off-site rates, because the on-
site overhead pool includes the facility-related expenses incurred 
by the company to house the employee, while no such expenses are 
incurred or allocated to the labor costs of direct charging 
personnel who work at the customer site. For further examples of 
overhead cost estimates, see the Employee Benefits Security 
Administration's guidance at https://www.dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-july-2017.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 final rule would 
increase to approximately $0.37 million per year, at a discount rate of 
3 percent, or to approximately $0.87 million per year, at a discount 
rate of 7 percent.\6\ The addition of 17 percent overhead on base wages 
would therefore increase cost savings by approximately 3.5 percent 
above the primary estimate at either discount rate.
---------------------------------------------------------------------------

    \6\ 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, beryllium proposal for the construction and shipyard sectors 
(82 FR at 29201).
---------------------------------------------------------------------------

2. Changes to the Standard: Extension of the Compliance Date to 
September 30, 2020
    The construction and shipyards beryllium standards went into effect 
on May 20, 2017, with most compliance obligations set to begin on March 
12, 2018. The requirement in the shipyards standard to provide change 
rooms was set to commence on March 11, 2019, and engineering controls 
under paragraph (f) expected to be implemented by March 10, 2020. In 
the June 2017 construction and shipyards proposal, OSHA stated that it 
would ``not enforce the January 9, 2017, shipyard and construction 
standards without further notice while this new rulemaking is 
underway'' (82 FR at 29182, 29223). Subsequently, in March 2018, OSHA 
stated that it would begin enforcing the PEL and STEL on May 11, 2018 
(see Memorandum for Regional Administrators, Delay of Enforcement of 
the Beryllium Standards under 29 CFR 1910.1024, 29 CFR 1915.1024, and 
29 CFR 1926.1124, Mar. 2, 2018, available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-03-02). OSHA clarified in a May 
9, 2018, interim enforcement memorandum that it would begin enforcing 
the construction and shipyards beryllium standards' PEL and STEL on May 
11, 2018, but would not enforce any other provisions of those standards 
absent further notice (see Interim Enforcement Memorandum and Notice of 
Delay in Enforcement for Certain Provisions of the Beryllium Standards, 
May 9, 2018, available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-05-09). This final rule delays the 
compliance date for most ancillary provisions by one year from the date 
of publication of this rule and delays the requirement to implement 
engineering controls by half a year. This delay provides time for OSHA 
to issue a revised proposal and final rule modifying the ancillary 
provisions of the construction and shipyard standards and will allow 
employers to avoid the undue costs of complying with standards that may 
change in the near future. Note that the PEL and STEL compliance dates 
will not be extended as those requirements have already gone into 
effect and are being enforced.
    OSHA estimated the cost savings of the final rule relative to 
baseline costs, where baseline costs reflect the costs of compliance 
without the final rule's changes to the compliance dates. This final 
rule extends the compliance dates for all provisions except the PEL and 
STEL to one year after the publication date of this final rule. In the 
2017 final economic analysis, the cost of compliance with the PEL and 
STEL was calculated as the cost of respiratory protection for employees 
exposed over the PEL and STEL because until the compliance date for the 
engineering controls provision, employers were permitted to use 
respirators to comply with the PEL and STEL. Hence, there are no cost 
savings due to respirators. Because the exact publication date of this 
final rule was uncertain at the time this FEA was being prepared but 
was expected to be in September 2019, OSHA rounded the baseline and 
compliance dates to March and September, rather than calendar days.
    This results in the following extensions:
     For engineering controls, the compliance date will be 
extended by 0.5 years.
     For all ancillary provisions, the compliance date will be 
extended by 1 year from the date of publication of this rule.\7\
---------------------------------------------------------------------------

    \7\ For the purposes of this FEA, respirators are not considered 
to be among the ancillary provisions because employers are permitted 
to use respirators to comply with the PEL and STEL until the 
engineering controls provision becomes enforceable; OSHA therefore 
attributed the cost of respirators to compliance with the PEL and 
STEL.
---------------------------------------------------------------------------

    OSHA commonly estimates annualized costs over a ten-year period and 
will do so here. For the baseline, OSHA estimates 10 years of costs, 
starting in March of 2020 for engineering controls and in September of 
2019 for all ancillary provision costs. OSHA then calculates the 
present values of these costs as of September of 2019 using the 
appropriate discount rate. Similarly, to calculate the cost of the 
construction and shipyard beryllium standards as modified by this date 
extension final rule, OSHA estimates 10 years of costs for all 
ancillary provisions starting in September of 2020 and again creates 
present values as of September of 2019. The difference between the 
present values across the two cases gives total cost savings of this 
final rule. Annualizing the present value of cost savings over ten 
years, the result is an annualized cost savings of $0.36 million per 
year at a discount rate of 3 percent, or $0.85 million per year at a 
discount rate of 7 percent. When the Department uses a perpetual time 
horizon to allow for cost comparisons under E.O. 13771, the annualized 
cost savings of this compliance date extension is $0.42 million at a 
discount rate of 7 percent.
    The cost savings for the baseline and compliance date extension by 
provision and year are presented below in Table 1 at undiscounted, 3 
percent, and 7 percent values. As shown in Table 1, and described 
elsewhere in this final rule, the cost savings described in this FEA 
reflect savings only for provisions covered by the compliance date 
extension. The present value of costs for each provision by period and 
discount rate are shown below in Table 2 and the present value of costs 
for each provision by period, discount rate, and industry are shown in 
Table 3.
3. Economic and Technological Feasibility
    In the final economic analysis for the 2017 construction and 
shipyards

[[Page 51382]]

beryllium standards, OSHA concluded that the standards were 
technologically feasible. OSHA has determined that the standards as 
modified by this final rule are also technologically feasible because 
the rule does not change any of the standards' substantive requirements 
and simply gives employers more time to comply with the standards' 
requirements. Furthermore, OSHA previously concluded that the beryllium 
standards were economically feasible. As this final rule does not 
impose any new substantive requirements, and results in cost savings, 
OSHA has concluded that the standards as modified by this final rule 
are also economically feasible.
4. Effects on Benefits
    This final rule delays the compliance date for most ancillary 
provisions by one year and delays the requirement to implement 
engineering controls by half a year. This delay provides time for OSHA 
to issue a revised proposal modifying the ancillary provisions of the 
construction and shipyard standards and allows employers to avoid the 
undue costs of complying with standards that may change in the near 
future.
    In the 2017 construction and shipyards proposal, OSHA explained it 
believed that it had underestimated baseline compliance with the 
ancillary provisions in the 2017 final rule. As such, OSHA stated it 
believed there would be limited to no benefits, in terms of reduced 
cases of chronic beryllium disease (CBD), attributable to the ancillary 
provisions, and thus limited to no foregone benefits if the ancillary 
provisions were to be revoked. However, many commenters pointed out 
that other existing standards did not provide protection identical to 
the ancillary provisions of the beryllium standards, so baseline 
compliance was not actually as high as OSHA believed in the 2017 
proposal to revoke the ancillary provisions. For example, the United 
Steelworkers (USW) commented that the shipyard employer at which its 
members work as abrasive blasters ``does not have a system in place to 
monitor for exposure to beryllium in the air or monitor the health of 
their co-workers'' (Document ID 2124, p. 2). The American Federation of 
Labor and Congress of Industrial Organizations (AFL-CIO) commented that 
medical surveillance and hazard communication are necessary because 
beryllium-related diseases are often misdiagnosed as other respiratory 
diseases, and medical surveillance under the beryllium standards would 
address this by specifically screening for beryllium-related disease, 
while hazard communication and training under the beryllium standards 
would educate workers who often do not know they are exposed on how to 
handle and use beryllium more safely. (Document ID 2140, pp. 8-9). This 
means that while other OSHA standards may require some medical 
screening and training, there is not complete overlap--and therefore 
not 100% baseline compliance--with the beryllium medical surveillance 
provisions or the training requirements specific to beryllium.
    In light of these and other similar comments, OSHA recognizes that, 
while it is possible that baseline compliance is higher for some 
provisions than was estimated in the 2017 final rule, baseline 
compliance with other provisions may not be as high as it believed in 
the 2017 proposal. OSHA has decided not to revoke all of the ancillary 
provisions in the construction and shipyard sectors so that it may 
issue a new proposal for these sectors with a revised collection of 
ancillary provisions that is appropriate for those sectors. OSHA 
expects this revised collection of ancillary provisions to maintain the 
protections and benefits of the 2017 final rule, and will make it more 
likely that the regulated community will realize the full benefits of 
the rule, as estimated in the 2017 final economic analysis. OSHA 
believes that any short-term loss of benefits associated with this 
extension of compliance dates will be offset in the long term by the 
benefits resulting from the agency's proposed rulemaking.
5. Certification of no Significant Impact on a Substantial Number of 
Small Entities
    This final rule will result in cost savings for affected employers, 
and those savings fall below levels that would have a significant 
positive economic impact on a substantial number of small entities.\8\ 
Therefore, OSHA certifies that this final rule does not have a 
significant impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \8\ OSHA investigated whether the projected cost savings would 
exceed its threshold of 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 final rule are such a small percentage of revenues and 
profits for every affected industry that OSHA's threshold would not 
be exceeded for any industry.
---------------------------------------------------------------------------

BILLING CODE 4510-26-P

[[Page 51383]]

[GRAPHIC] [TIFF OMITTED] TR30SE19.021


[[Page 51384]]


[GRAPHIC] [TIFF OMITTED] TR30SE19.022


[[Page 51385]]


[GRAPHIC] [TIFF OMITTED] TR30SE19.023


[[Page 51386]]


[GRAPHIC] [TIFF OMITTED] TR30SE19.024


[[Page 51387]]


[GRAPHIC] [TIFF OMITTED] TR30SE19.025

BILLING CODE 4510-26-C

V. OMB Review Under the Paperwork Reduction Act of 1995

    The current beryllium standards for occupational exposure to 
beryllium--general industry (29 CFR 1910.1024), construction (29 CFR 
1926.1124), and shipyard (29 CFR 1915.1024)--contain collection of 
information (paperwork) requirements that have been approved by the 
Office of Management and Budget (OMB) under the Paperwork Reduction Act 
of 1995 (PRA), and approved under OMB Control number 1218-0267. The PRA 
defines ``collection of information'' to mean ``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'' (44 U.S.C. 3502(3)(A)). Under the PRA, a 
Federal agency cannot conduct or sponsor a collection of information 
unless OMB approves it, and the agency displays a currently valid OMB 
control number (44 U.S.C. 3507). Also, notwithstanding any other 
provision of law, no employer shall be subject to penalty for failing 
to comply with a collection of information if the collection of 
information does not display a currently valid OMB control number (44 
U.S.C. 3512).
    In OSHA's June 27, 2017 proposed rule, OSHA proposed to revoke the 
ancillary provisions of the beryllium standards, and their collection 
of information requirements, in both the construction and shipyards 
sectors, while retaining the new lower PEL of 0.2 [mu]g/m\3\ and STEL 
of 2.0 [mu]g/m\3\ for those sectors (82 FR 29182). In this final rule, 
OSHA has decided not to adopt the proposal to revoke the ancillary 
requirements in the construction and shipyard standards. Instead, OSHA 
is extending the compliance dates for the ancillary provisions of the 
construction and shipyard standards. The final rule does not change the 
information collections already approved by the OMB under OMB Control 
Number 1218-0267.

VI. Federalism

    OSHA reviewed this final rule in accordance with the Executive 
Order on Federalism (E.O. 13132, 64 FR 43255 (Aug. 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 authority exists and the problem is 
national in scope. E.O. 13132 provides for preemption of state law only 
with the express consent of Congress. Federal agencies must limit any 
such preemption to the extent possible.
    Under Section 18 of the OSH Act (29 U.S.C. 651 et seq.), Congress 
expressly provides that states and U.S. territories may adopt, with 
Federal approval, a plan for the development and enforcement of 
occupational safety and health standards. OSHA refers to such states 
and territories as ``State Plan States.'' 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 (29 U.S.C. 667). Subject to these 
requirements, State Plan States are free to develop and enforce under 
state law their own requirements for safety and health standards.
    OSHA previously concluded from its analysis that promulgation of 
the beryllium standard complies with E.O. 13132 (82 FR at 2633). In 
states without an OSHA-approved State Plan, this final rule limits 
state policy options in the same manner as every standard promulgated 
by OSHA. For State Plan States, Section 18 of the OSH Act, as noted in 
the previous paragraph, permits State Plan States to develop and 
enforce their own beryllium standards provided these requirements are 
at least as effective in providing safe and healthful employment and 
places of employment as the requirements specified in this final rule.

VII. State Plan States

    When Federal OSHA promulgates a new standard or a more stringent 
amendment to an existing standard, State Plans 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

[[Page 51388]]

1953.5(a)). The state standard must be at least as effective as the 
final Federal rule. State Plans must adopt the Federal standard or 
complete their own standard 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 Plans do not have to 
amend their standards, although OSHA may encourage them to do so. The 
21 states and 1 U.S. territory with OSHA-approved occupational safety 
and health plans covering the private sector and state and local 
governments 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.
    The new amendments to OSHA's beryllium rule do not impose any new 
requirements on employers. Accordingly, State Plans do not have to 
amend their standards to extend the compliance dates for their 
beryllium rules, but they may do so within the limits of this final 
rule.

VIII. Unfunded Mandates Reform Act

    When OSHA issued the 2017 final rule establishing standards for 
occupational exposure to beryllium, it reviewed the rule according to 
the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) 
and E.O. 13132 (64 FR 43255 (Aug. 10, 1999)). OSHA concluded that the 
2017 final rule did not meet the definition of a ``Federal 
intergovernmental mandate'' under the UMRA because OSHA standards do 
not apply to state or local governments except in states that 
voluntarily adopt State Plans. OSHA further noted that the rule did not 
impose costs of over $100 million per year on the private sector (82 FR 
at 2634).
    As discussed above in Section IV of this preamble, OSHA has 
determined that the extension of the compliance dates in this final 
rule does not impose any costs on private-sector employers beyond those 
costs already identified in the 2017 final rule for beryllium. Because 
OSHA reviewed the total costs of the 2017 beryllium rule under UMRA, no 
further review of those costs is necessary. Therefore, for purposes of 
UMRA, OSHA certifies that this final rule does not mandate that state, 
local, or tribal governments adopt new, unfunded regulatory obligations 
of, or increase expenditures by the private sector by, more than $100 
million in any year.

IX. Environmental Impacts

    OSHA has reviewed this final beryllium rule according to the 
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et 
seq.), the regulations of the Council on Environmental Quality (40 CFR 
part 1500), and the Department of Labor's NEPA procedures (29 CFR part 
11). OSHA has made a determination that this final rule would have no 
significant impact on air, water, or soil quality; plant or animal 
life; or the use of land or aspects of the external environment.

X. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this final rule in accordance with E.O. 13175 (65 FR 
67249) and determined that it does not have ``tribal implications'' as 
defined in that order. This rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian tribes.

XI. Health and Risk

    As part of the 2017 final rule, OSHA concluded that employees 
exposed to beryllium and beryllium compounds at the preceding PELs were 
at significant risk of material impairment of health, specifically CBD 
and lung cancer. OSHA also reviewed the exposure data for workers 
exposed to beryllium in abrasive blasting in construction and shipyards 
and welding in shipyards, and determined, based on the exposure levels 
observed, that there is a significant risk to those workers of CBD and 
lung cancer (82 FR at 29183). In the 2017 construction and shipyards 
NPRM, OSHA described its previous findings and invited further comment 
and data ``on the risks of sensitization, CBD, and lung cancer among 
workers involved in abrasive blasting and welding operations in 
shipyards and construction'' (82 FR at 29221). After reviewing the 
comments and information received in response to this invitation, OSHA 
reaffirms its finding that the best available evidence indicates that 
there is a significant risk of material impairment of health for 
workers exposed to beryllium in construction and shipyards.\9\
---------------------------------------------------------------------------

    \9\ Many commenters also expressed concern about the provisions 
of the standards related to dermal contact with beryllium. While 
OSHA does not address these comments in this final rule, the 
forthcoming rulemaking will propose changes related to dermal 
contact with beryllium.
---------------------------------------------------------------------------

    Some commenters, including the Abrasive Blasting Manufacturers 
Alliance (ABMA), the Construction Industry Safety Coalition (CISC), 
Materion Brush Inc. (Materion), and the National Association of Home 
Builders, argued that OSHA failed to show significant risk for lung 
cancer or CBD in construction and shipyards (Document ID 2142, pp. 3, 
12-14; 2125, p. 23; 2145, pp. 1, 27; 2128, pp. 3-4). For example, CISC 
pointed out that OSHA's risk assessment for the 2017 final rule is 
based on studies from general industry workplaces and complained of a 
``lack of data suggesting any cases of CBD or other associated disease 
outcomes in construction'' (Document ID 2125, pp. 12-13, 24). ABMA also 
asserted, based on reasoning similar to CISC's, that there is no 
evidence of health effects from beryllium exposure in construction and 
shipyards (Document ID 2142, Comments, pp. 12-13). A review 
commissioned and submitted by ABMA found that there are no 
epidemiological studies establishing causation between beryllium 
exposure as a result of abrasive blasting and CBD (Document ID 2142, 
Attachment 2, p. 7). Materion noted that OSHA's risk analysis is based 
on studies that do not examine the prevalence of disease specifically 
among workers exposed to abrasive blast media in construction and 
shipyards, while acknowledging that abrasive blasting can lead to 
beryllium exposures over the new action level of 0.1 ug/m\3\ (Document 
ID 2145, Comments, p. 6). All of these comments are substantively 
similar to previous comments on OSHA's 2015 NPRM.
    For example, ABMA previously asserted that their members are 
unaware of any occurrence of beryllium sensitization, CBD, or lung 
cancer due to beryllium exposure among their employees or their 
customers' employees (Document ID 1673, p. 9). OSHA addressed such 
comments in the preamble to the 2017 final rule, finding that ABMA had 
not presented the agency with any studies or rigorous scientific 
evidence to support their statements (82 FR at 2641-42). OSHA noted in 
the January 9, 2017, final rule that such statements were not 
compelling evidence, especially considering that no surveillance 
programs were in place to detect beryllium sensitization or CBD among 
workers exposed to beryllium among ABMA's members (82 FR at 2642; see

[[Page 51389]]

also 82 FR at 29221). ABMA's comments submitted in response to the 2017 
NPRM complain that OSHA often considers anecdotal evidence from 
employees and is shifting the burden to the regulated community to show 
the absence of risk (Document ID 2142, Comments, p. 13). Similarly, 
CISC complains that OSHA's approach did not include data examining the 
prevalence of CBD or other beryllium-related disease endpoints in the 
construction industry before in determining that construction and 
shipyard employees also faced a significant risk of material impairment 
of health (Document ID 2125, pp. 13-14).
    As CISC acknowledged, however, ``OSHA does not need to perform an 
industry-by-industry assessment of significant risk when promulgating 
health standards'' (Document ID 2125, p. 14). OSHA's 2017 final rule 
risk assessment showed that there is a significant risk of beryllium 
sensitization and CBD for workers exposed to beryllium at exposure 
levels of 0.1 ug/m\3\ and above. ABMA, CISC, and others attempt to 
rebut this finding by claiming a lack of disease in their industries 
without providing any evidence of testing for these conditions among 
construction and shipyards workers.\10\ Information on testing rates in 
an industry is necessary before any conclusions about disease 
prevalence can be made. This is particularly so in operations like 
abrasive blasting, where treating physicians may be unaware of the 
potential for beryllium exposure. Medical professionals would likely 
not order a Beryllium Lymphocyte Proliferation Test (BeLPT) unless they 
know a worker has been exposed to beryllium, and without such a test, 
CBD is often misdiagnosed. (Document ID 2091; 82 FR 2499, 2705). As the 
National Employment Law Project (NELP) commented, OSHA cannot 
``withhold or revoke feasible protections from comparably at-risk 
workers just because their toxic exposures occur in different 
industries.'' (Document ID 2106, p. 5). On this record, OSHA has no 
reason to believe that airborne exposure to beryllium impacts 
construction and shipyard employees differently from general industry 
employees and reaffirms its previous finding: That reports from 
employers in these industries who have not provided their workers with 
medical surveillance specific to beryllium-related health effects do 
not constitute evidence against OSHA's determination of significant 
risk at exposure levels of 0.1 ug/m\3\ and above.
---------------------------------------------------------------------------

    \10\ Furthermore, the literature review submitted by ABMA (SOMA) 
did not identify any studies examining sensitization and CBD in 
these sectors (Document ID 2142, Attachment 2, pp. 6-7).
---------------------------------------------------------------------------

    Some commenters further argued that OSHA should address possible 
variability in risk depending on the specific chemical compound or 
physical form (e.g., particle size) of beryllium. CISC commented that 
OSHA did not adequately account for ``differences in toxicity with the 
variety of forms of beryllium'' (Document ID 2125, pp. 14-18). ABMA and 
Materion observed that OSHA's 2017 health and risk analysis relied on 
studies of exposure to beryllium alloys or processed beryllium, which 
they believe to be irrelevant to the construction industry (Document ID 
2142, Comments, pp. 12, 17; 2145, Comments, p. 6). Citing Deubner et 
al.'s 2001 study of 75 workers exposed in a beryllium mining and 
extraction facility who were primarily exposed to beryllium ore and 
salts (Document ID 1543), Materion stated that ``a case of CBD has 
never been identified in any patient that has been linked only to 
exposures to natural beryllium containing materials associated with the 
construction industry'' (Document ID 2145, Comments, p. 6).
    OSHA also reviewed the Deubner et al. study that Materion cited and 
discussed it in the 2017 final rule.\11\ Because there was no 
sensitization or CBD detected among those whose only beryllium exposure 
came from working with bertrandite ore, Deubner et al. concluded that 
beryllium ore and salts may pose less of a hazard than beryllium metal 
and beryllium hydroxide. OSHA noted in the 2017 final rule preamble 
that these results are consistent with some of the literature on animal 
studies examining solubility and particle size (82 FR at 2502). 
However, the Duebner et al. study population of 75 workers is too small 
to demonstrate that beryllium ore and salts pose no hazard of 
sensitization and CBD. OSHA acknowledged some uncertainty regarding 
possible differences in risk depending on the chemical or physical form 
of beryllium (82 FR at 2545), but determined that there is insufficient 
information to support a quantitative risk analysis differentiating 
between chemical and physical forms of beryllium (82 FR at 2529). 
Comments submitted on the 2017 construction and shipyards NPRM did not 
provide any additional data or information that OSHA could use to 
evaluate risk of sensitization or CBD associated with various chemical 
or physical forms of beryllium. Therefore, OSHA reaffirms its 
determination of significant risk of material impairments of health at 
airborne beryllium exposure levels of 0.1 ug/m\3\ and above, regardless 
of the chemical or physical form of the beryllium.
---------------------------------------------------------------------------

    \11\ Of the 75 workers surveyed for sensitization with the 
BeLPT, three were identified as sensitized by an abnormal BeLPT 
result. One of those found to be sensitized was diagnosed with CBD. 
A follow-up study by Stefaniak et al. (2008) found that beryllium 
was present at the mill in three forms: Mineral, poorly crystalline 
beryllium oxide, and beryllium hydroxide (Document ID 1543).
---------------------------------------------------------------------------

    OSHA also acknowledged uncertainty in its risk estimates for lung 
cancer in the 2017 final rule, stating that the lung cancer risks 
should be regarded as less certain than its risk estimates for CBD and 
sensitization (82 FR at 2552). OSHA continues to acknowledge that the 
solubility of beryllium may affect the risk of lung cancer it poses to 
exposed workers. Materion provided extensive commentary suggesting that 
OSHA's 2017 determination that beryllium exposure can cause lung cancer 
should not apply to beryllium in insoluble forms (Document ID 2145, pp. 
12-20). Materion supplemented their comments with an analysis they 
commissioned to evaluate OSHA's 2017 lung cancer risk assessment (Crump 
and Proctor, Document ID 2145, Attachment 5); a publication that 
updated a previous lung cancer study by Boffetta et al. (Document ID 
2145, Attachment 3); and a group of animal testing results that 
Materion cited as evidence that exposure to beryllium metal is unlikely 
to cause cancer (Document ID 2145, Comments, pp. 18-20; Attachments 8-
18). However, the agency determined in 2017 that the epidemiological 
literature on beryllium sensitization and CBD clearly shows sufficient 
occurrence of sensitization and CBD to be considered significant within 
the meaning of the OSH Act (82 FR at 2545). Uncertainty with respect to 
the lung cancer risk attributable to beryllium exposure in construction 
and shipyards does not undermine OSHA's finding of significant risk 
wherever there is beryllium exposure at the action level or above, 
which rests upon strong evidence that such exposure can cause CBD.
    In summary, the comments submitted by ABMA, CISC, Materion, and 
others regarding OSHA's 2017 risk assessment merely recapitulate 
arguments that were previously presented in response to the 2015 NPRM, 
and which OSHA addressed in the 2017 final rule. OSHA has reviewed the 
comments, analyses, and studies submitted to the record, and finds no 
information that would cause the agency to reconsider its significant 
risk determination for airborne beryllium exposure at and above the

[[Page 51390]]

action level in construction and shipyards.
    OSHA maintains its conclusion from the 2017 final rule that 
employees in construction and shipyards are exposed to beryllium at 
levels above the new action level and PEL, primarily from abrasive 
blasting activities, and that employees exposed to those levels are at 
significant risk of developing adverse health effects (82 FR at 2637).

XII. Summary and Explanation of the Final Rule

    This section of the preamble explains the final changes that OSHA 
is making to the beryllium standards for construction and shipyards, as 
well as the agency's rationales for making the changes and for not 
adopting its proposal to revoke all ancillary provisions from the 
beryllium standards for construction and shipyards.

A. Introduction

    The 2017 final rule promulgated three standards designed to protect 
workers from the serious health effects caused by occupational exposure 
to beryllium and beryllium compounds (see 82 FR 2470 (Jan. 9, 2017)). 
The three standards, which cover general industry (29 CFR 1910.1024), 
construction (29 CFR 1926.1124), and shipyards (29 CFR 1915.1024), 
contain a comprehensive set of protections against beryllium exposure, 
consisting of the exposure limits in paragraph (c) and a number of 
ancillary provisions, typical of OSHA health standards, in paragraphs 
(d) through (n) (see 82 FR at 2476). The ancillary provisions of the 
construction and shipyards standards encompass requirements for 
exposure assessment, competent person (construction) or regulated areas 
(shipyards), methods of compliance, respiratory protection, personal 
protective clothing and equipment, hygiene, housekeeping, medical 
surveillance and medical removal, communication of hazards, and 
recordkeeping (29 CFR 1915.1024(d)-(n); 29 CFR 1926.1124(d)-(n)).
    Since publication of the 2017 final rule, OSHA has undertaken 
several additional rulemaking efforts affecting the beryllium 
standards. On June 27, 2017, OSHA proposed revoking the ancillary 
provisions for the construction and shipyards standards while retaining 
the new, lower PEL of 0.2 [mu]g/m\3\ and STEL of 2.0 [mu]g/m\3\ for 
those sectors (82 FR 29182). Subsequently, on May 7, 2018, OSHA issued 
a DFR adopting a number of clarifying amendments to address the 
application of the beryllium standard for general industry to materials 
containing trace amounts of beryllium (83 FR 19936). The DFR amended 
the text of the general industry standard to clarify certain terms in 
the standard, including the definition of beryllium work area, the 
definition of emergency, and the meaning of the terms dermal contact 
and beryllium contamination. The DFR also clarified provisions for 
disposal and recycling and provisions that the agency intended to apply 
only where skin can be exposed to materials containing at least 0.1% 
beryllium by weight. OSHA did not receive significant adverse comment 
in response to the DFR, and therefore the rule became effective on July 
6, 2018 (see 83 FR 31045 (July 3, 2018)).
    On June 1, 2018, OSHA published a proposal to extend the compliance 
date for certain ancillary requirements of the general industry 
beryllium standard, from March 12, 2018 to December 12, 2018 (83 FR 
25536). OSHA reasoned that: (1) It planned to propose modifications to 
ancillary provisions of the beryllium general industry standard in 
response to stakeholder questions and concerns; (2) it would be 
undesirable for both the agency and the regulated community to begin 
enforcement of the ancillary provisions of the standard that would be 
affected by the upcoming rulemaking; (3) enforcing compliance with the 
relevant ancillary requirements, as currently written, before 
publishing the agreed-upon proposal, would likely result in employers 
taking unnecessary measures to comply with provisions that OSHA 
intended to clarify; and (4) the proposed compliance date extension 
would give OSHA time to prepare and publish the planned substantive 
general industry NPRM to amend the standard before employers were 
required to comply with the affected provisions of the rule. OSHA 
adopted the extension of the compliance dates, as proposed, on August 
9, 2018 (83 FR 39351).
    Finally, on December 11, 2018, OSHA published a proposal to modify 
several of the general industry beryllium standard's definitions, along 
with the provisions for methods of compliance, personal protective 
clothing and equipment, hygiene areas and practices, housekeeping, 
medical surveillance, communication of hazards, and recordkeeping (83 
FR 63746). OSHA proposed the modifications, in part, to provide 
clarification and simplify or improve compliance. The agency is working 
to finalize the proposal at this time.

B. OSHA's Decision Not To Revoke All Ancillary Provisions

    As mentioned above, paragraphs (d) through (n) of the construction 
and shipyards standards for beryllium contain the ancillary provisions, 
which augment the exposure limits in paragraph (c). OSHA's 2017 NPRM 
proposed revoking all ancillary provisions for the construction and 
shipyards standards while retaining the new PEL of 0.2 [mu]g/m\3\ and 
the STEL of 2.0 [mu]g/m\3\ for those sectors (82 FR 29182). The primary 
rationale behind the proposal to revoke these provisions was that other 
OSHA standards might already require equivalent protections. In the 
2017 NPRM, OSHA pointed to a number of OSHA standards that already 
apply to the primary operations involving beryllium exposure in 
construction and shipyards, which are abrasive blasting in construction 
and abrasive blasting and welding in shipyards (82 FR at 29183). These 
standards included the ventilation standard (29 CFR 1926.57) and the 
mechanical paint removers standard (29 CFR 1915.34), among others. OSHA 
requested comment on whether standards consisting only of the new, 
lower PEL and STEL would provide adequate protection to construction 
and shipyards workers, considering the other standards that apply. The 
agency also requested comment on whether OSHA should retain any or all 
of the ancillary provisions and, more particularly, on whether OSHA 
should retain the medical surveillance provisions (82 FR at 29183).
    Some commenters agreed with OSHA's primary rationale for proposing 
to revoke all ancillary provisions in the construction and shipyards 
standards (see, e.g., Document ID 2120; 2122; 2142), while others 
disagreed with that rationale (see, e.g., Document ID 2121; 2124; 2129; 
2132; 2133; 2134; 2140). For example, the U.S. Small Business 
Administration, Office of Advocacy (SBA) commented that ``employees 
performing abrasive blasting and welding in these sectors are already 
protected by OSHA standards and industry practices that provide for 
ventilation, personal protective equipment, and respiratory 
protection'' (Document ID 2120, p. 6). On the other hand, Public 
Citizen's Health Research Group (Public Citizen) commented that ``it is 
simply untrue . . . that all of the ancillary beryllium provisions 
overlap with existing OSHA regulations and that workers therefore will 
achieve no additional protections from the dangers of beryllium with 
the implementation of the ancillary provisions of the rule'' (Document 
ID 2134, p. 2).
    Having carefully reviewed the comments and evidence in the record, 
OSHA has determined that beryllium construction and shipyards standards

[[Page 51391]]

consisting only of the PEL and STEL would not be sufficiently 
protective. Other OSHA standards do contain some requirements that 
overlap with, or duplicate, the requirements of the beryllium standards 
for construction and shipyards. However, for most ancillary provisions, 
there is only partial overlap, and for the remainder, there is no 
overlap at all. This conclusion refutes OSHA's primary rationale for 
issuing the proposal. Thus, OSHA has determined not to adopt its 
proposal to remove all ancillary provisions from the construction and 
beryllium standards.
    In its analysis below, OSHA discusses only whether other OSHA 
standards overlap with each of the beryllium standards' ancillary 
provisions, and whether OSHA should revoke those provisions on the 
basis of overlap with existing standards. Other issues, such as whether 
discrete requirements in the standards are necessary, will be addressed 
in the forthcoming proposal. OSHA takes this approach because it 
recognizes that there is not complete overlap between the standards' 
ancillary provisions and other OSHA standards, and that therefore it 
cannot issue a final rule revoking all the construction and shipyard 
ancillary provisions on that basis.
    OSHA has also decided not to revoke, in this final rule, discrete 
portions of ancillary provisions that overlap with other OSHA 
standards, while retaining parts of other provisions, to ensure that 
stakeholders have a full opportunity to comment on this action. This is 
particularly important here, where several commenters emphasized that 
the ancillary provisions of the beryllium standards are interrelated 
and cannot be practically and effectively implemented in isolation (see 
Document ID 2129, p. 8; 3130, p. 2; 2134, p. 3; 2140, p. 4). In 
addition, in the forthcoming proposal, OSHA intends to propose a number 
of changes to specific ancillary provisions for issues not addressed by 
the June 27, 2017 NPRM. For example, OSHA will propose changes to the 
construction and shipyard beryllium standards that reflect changes OSHA 
has proposed to the general industry standard (83 FR 63746). These 
changes may themselves impact conclusions about the necessity of a 
particular ancillary provision. OSHA therefore has decided to proceed 
with a new proposal, which will ensure that the record is fully 
developed.
    The following discussion addresses each ancillary provision, along 
with the comments in the record regarding overlap or duplication with 
other OSHA requirements.\12\
---------------------------------------------------------------------------

    \12\ For a detailed, provision-by-provision explanation of the 
beryllium standards promulgated in the 2017 final rule, including 
information on compliance with the requirements of the standards, 
please see Section XVI, Summary and Explanation of the Standards, in 
the final rule (82 FR at 2635-2735).
---------------------------------------------------------------------------

Exposure Assessment, Paragraph (d)
    Paragraph (d) of the beryllium standards for construction and 
shipyards (29 CFR 1926.1124(d) and 1915.1024(d)) requires employers to 
assess the airborne beryllium exposure of each employee using either a 
scheduled monitoring approach or a performance option. Reassessment is 
required when certain changes in the workplace occur. The provision 
establishes specific methods of sample analysis and requires employers 
to both provide affected employees the opportunity to observe the 
exposure monitoring and notify them of the assessment results. In the 
preamble to the 2017 final rule, OSHA found that this approach to 
exposure assessment was a ``well-recognized and accepted risk 
management tool'' and was ``necessary and protective'' for beryllium-
exposed workers (82 FR at 2619, 2651).
    All the commenters who specifically addressed the proposed removal 
of paragraph (d) opposed it (e.g., Document ID 2109; 2118, p. 1; 2119, 
p. 2; 2129, p. 5; 2130, p. 2; 2134, p. 2; 2135, pp. 3-4; 2140, p. 7). 
For example, members of Congress noted that the requirement to perform 
exposure assessments for beryllium is not contained in any other OSHA 
standard. Absent paragraph (d), they argued, there would be no 
independent obligation to monitor employees' beryllium exposure at 
construction or shipyard workplaces (Document ID 2135, p. 4). Public 
Citizen echoed this concern, noting that, without the beryllium 
standards' ancillary provisions, employers ``would not be required, by 
any regulation, to follow a prescribed schedule for measurement of 
airborne beryllium [and] notify employees and maintain written records 
of the results of such measurements . . .'' (Document ID 2134, p. 2). 
Similarly, the Institute for Policy Integrity at NYU School of Law 
stated that, given OSHA's estimate of a 0% baseline compliance rate for 
the exposure assessment requirement, employers in the construction and 
shipyard industries will not conduct exposure assessments for beryllium 
absent paragraph (d) (Document ID 2119, p. 2). USW illustrated this 
point, stating that the shipyard employer that employs its members as 
abrasive blasters ``does not have a system in place to monitor for 
exposure to beryllium in the air'' (Document ID 2124, p. 2).
    As indicated by the comments, no other standards duplicate the 
specific requirements in paragraph (d), such as the requirements to 
perform assessments at specified intervals and when there are changes 
in the workplace, along with the requirement for employee notification 
of results. This is true despite the fact that employers must currently 
perform some assessment of exposure to comply with the standards' PEL 
and STEL (which, again, OSHA is currently enforcing). The conclusion 
that there is no overlap with respect to paragraph (d) supports OSHA's 
determination not to revoke the standard's ancillary provisions in this 
final rule.
Regulated Areas (Shipyards) and Competent Person (Construction), 
Paragraph (e)
    Paragraph (e) of the beryllium standard for shipyards (29 CFR 
1915.1024(e)) requires employers to establish, maintain, demarcate, and 
limit access to ``regulated areas,'' which are demarcated areas where 
airborne beryllium exposure levels are above the PEL or STEL. Employees 
who enter regulated areas must use respiratory protection and PPE. 
Paragraph (e) of the beryllium standard for construction (29 CFR 
1926.1124(e)), on the other hand, requires employers to designate a 
``competent person'' where airborne exposure to beryllium exceeds the 
PEL or STEL. The competent person must make frequent and regular 
inspections of job sites, materials, and equipment, and perform other 
duties to ensure the proper implementation of the standard and 
protection of employees. OSHA determined in the 2017 final rule that 
paragraph (e) is necessary, among other reasons, to limit employee 
access to areas of the workplace with high levels of beryllium exposure 
and to ensure that employees who access such areas are properly 
protected against beryllium exposure (82 FR at 2658-59).
    In the 2017 NPRM, OSHA noted that the construction ventilation 
standard, 29 CFR 1926.57(f), requires certain measures that would limit 
exposure of workers (82 FR at 29221). Specifically, 29 CFR 
1926.57(f)(7) requires that dust not be allowed to accumulate outside 
abrasive blasting enclosures and that spills be cleaned up promptly 
(Id.). Furthermore, 29 CFR 1926.57(f)(3) and (4) require ventilation 
and dust collection and removal systems in abrasive blasting operations 
(Id.). OSHA

[[Page 51392]]

stated that compliance with these measures during abrasive blasting 
should reduce the amount of beryllium-containing dust to be cleaned, 
thereby protecting workers who clean spent abrasive blasting media 
after operations are completed (Id.). Additionally, OSHA emphasized the 
requirement to train employees to recognize and avoid unsafe 
conditions, 29 CFR 1926.21 (Id.), as a means of helping minimize 
exposures of workers proximal to abrasive blasting operations.
    For shipyards, OSHA placed emphasis on the mechanical paint 
removers standard (Id. at 29222), which requires, at 29 CFR 
1915.34(c)(3)(iii), that employees other than blasters wear eye and 
respiratory protection when working in areas where there are unsafe 
concentrations of abrasive material and dusts. In addition, OSHA noted 
that OSHA's ventilation standard applies to shipyards and requires, at 
29 CFR 1910.94(a)(4), that blast cleaning enclosures have sufficient 
ventilation, in part, to prevent leakage of dust outside the enclosure. 
Such leakage could create exposures for employees not involved in 
blasting operations (Id.). OSHA also stated that abrasive blasting 
sometimes occurs in confined spaces at shipyard workplaces, and noted 
that OSHA's shipyard standard regulating work in confined and enclosed 
spaces requires demarcation of, and limitation of employee access to, 
such spaces (Id. (discussing 29 CFR 1915.12)).
    OSHA requested information on the prevalence of abrasive blasting 
in confined or enclosed spaces in shipyards, but did not receive 
responsive comments establishing how often abrasive blasting operations 
in shipyards fall within the scope of 29 CFR 1915.12. However, even if 
it is assumed that most abrasive blasting operations at shipyards occur 
in confined spaces, 29 CFR 1915.12 would not substitute for the 
protections provided by paragraph (e). This is because paragraph (e) of 
the beryllium standard applies to all affected shipyards employees, not 
just those working in confined spaces. Employees protected by paragraph 
(e) but not by the confined spaces standard include those engaged in 
abrasive blasting in non-confined spaces and other employees who work 
near blasting operations, such as clean-up helpers.
    None of the comments that OSHA received provided a specific 
rationale or data that would support removing paragraph (e) from either 
standard, while multiple comments supported OSHA's determination in the 
2017 final rule that the requirements of paragraph (e) are essential to 
the effectiveness of the construction and shipyards beryllium 
standards. For example, North America's Building Trades Unions (NABTU) 
commented that paragraph (e) of the construction industry beryllium 
standard is important because construction worksites, unlike fixed 
worksites, typically do not have a safety professional on-site, and 
that the designation of a competent person ensures that there is an 
agent of the employer on-site who has the knowledge and authority to 
recognize, evaluate, and correct beryllium hazards (Document ID 2129, 
p. 6). NABTU also stated that the competent person requirement helps 
ensure that the written exposure control plan is properly implemented 
at construction worksites, and noted that OSHA has included a similar 
competent person requirement in numerous other health standards 
applicable to the construction industry (Id.). USW also submitted a 
comment indicating that employers engaged in abrasive blasting 
operations in the shipyards industry may not have specific controls in 
place to protect helpers or other bystanders from exposure to beryllium 
during the operation (Document ID 2124, pp. 9-11).
    After considering these comments, OSHA finds that other standards 
do not completely overlap the standards' regulated areas (shipyards) 
and competent person (construction) requirements. Particularly, the 
other applicable OSHA standards discussed above do not replicate the 
requirements in paragraph (e) that ensure that employee access to areas 
with reasonably expected airborne exposure to beryllium is limited and 
appropriately managed. This conclusion supports OSHA's determination 
not to revoke the standards' ancillary provisions in this final rule.
Methods of Compliance, Paragraph (f)
    Paragraph (f) of the beryllium standards for construction and 
shipyards requires that employers implement methods for reducing 
employee exposure to beryllium through a written exposure control plan, 
engineering and work practice controls, and a prohibition on rotating 
employees to achieve compliance with the PEL. In the 2017 final rule, 
OSHA determined that written exposure control plans are instrumental 
for protection of workers because ``[r]equiring employers to articulate 
where exposures occur and how those exposures will be controlled will 
help to ensure that they have a complete understanding'' of how to 
comply with the standards (82 FR at 2668). OSHA also concluded that 
requiring primary reliance on engineering and work practice controls to 
control exposures is consistent with good industrial hygiene practice 
and with OSHA's traditional approach for health standards (82 FR at 
2672).
    In response to the NPRM, Public Citizen noted that, ``[s]hould OSHA 
rescind the ancillary provisions for construction and shipyard workers, 
employers in those industries would not be required, by any regulation, 
to . . . maintain a written plan to control beryllium exposures [or] 
institute engineering and work practice controls. . . .'' (Document ID 
2134, p. 2). The AFL-CIO commented that, without paragraph (f), ``the 
rule would ignore the importance of the hierarchy of controls in 
addressing workplace chemical exposures'' (Document ID 2140, p. 8).
    These comments and OSHA's review of the record indicate that other 
OSHA standards do not provide equivalent worker protections. In the 
absence of paragraph (f), employers would not be required to establish 
and implement a written exposure control plan specific to beryllium, 
and shipyards workers would not receive the benefits of the hierarchy 
of controls, as required by paragraph (f).\13\ This conclusion supports 
OSHA's determination not to revoke the standard's ancillary provisions 
in this final rule.
---------------------------------------------------------------------------

    \13\ Note that under a PEL- and STEL-only beryllium standard, 
construction employers would be required to comply with the new 
beryllium exposure limits under 29 CFR 1926.55(b), which 
independently requires the hierarchy of controls. The shipyards air 
contaminants standard however, does not contain a comparable 
requirement to implement engineering and work practice controls (see 
29 CFR 1915.1000).
---------------------------------------------------------------------------

Respiratory Protection, Paragraph (g)
    Paragraph (g) in the beryllium standards for both construction and 
shipyards requires the provision and use of respiratory protection from 
exposures to beryllium: (1) During periods necessary to install or 
implement feasible engineering and work practice controls where 
airborne exposure exceeds, or can reasonably be expected to exceed, the 
TWA PEL or STEL (paragraph (g)(1)(i)); (2) during operations, including 
maintenance and repair activities and non-routine tasks, when 
engineering and work practice controls are not feasible and airborne 
exposure exceeds, or can reasonably be expected to exceed, the TWA PEL 
or STEL (paragraph (g)(1)(ii)); (3) during operations for which an 
employer has implemented all feasible engineering and work practice 
controls when such

[[Page 51393]]

controls are not sufficient to reduce airborne exposure to or below the 
TWA PEL or STEL (paragraph (g)(1)(iii)); (4) during emergencies 
(paragraph (g)(1)(iv)); and (5) when an employee who is eligible for 
medical removal under the standard chooses to remain in a job with 
airborne exposure at or above the action level (paragraph (g)(1)(v)). 
Paragraph (g) also provides that required respiratory protection must 
be selected and used in accordance with OSHA's general Respiratory 
Protection standard at 29 CFR 1910.134. Finally, paragraph (g) requires 
employers to provide powered air-purifying respirators (PAPR) when an 
employee entitled to a respirator under the beryllium standard requests 
one, as long as the PAPR provides adequate protection.
    In the 2017 final rule, OSHA recognized that workers who perform 
open-air abrasive blasting using mineral grit (i.e., coal slag) will 
routinely be exposed to levels above the PEL of 0.2 [mu]g/m\3\ (even 
after the installation of feasible engineering and work practice 
controls), and therefore, these workers will also be required to wear 
respiratory protection (82 FR at 2584). OSHA also found that requiring 
the provision and use of respiratory protection when an employee who is 
eligible for medical removal chooses to remain in a job with airborne 
exposure at or above the action level ``has the potential to delay or 
avoid the onset of CBD in sensitized individuals and to mitigate or 
retard the effects of CBD in employees who are in the early stages of 
CBD'' (82 FR at 2676). Finally, OSHA found that ``provision of PAPRs at 
the employee's request will provide employees necessary protection 
beyond that found in provisions of the Respiratory Protection standard, 
where provision of a PAPR for reasons of fit, comfort and reliability 
is at the employer's discretion'' (82 FR at 2676).
    In the NPRM, OSHA relied on several of its standards requiring the 
provision and use of respirators to explain its proposal to revoke the 
ancillary provisions of the 2017 construction and shipyard rules (82 FR 
at 29221-22). First, OSHA relied on the construction ventilation 
standard, 29 CFR 1926.57, which requires workers performing abrasive 
blasting to wear extensive PPE, including respirators, under certain 
conditions, including where beryllium concentrations dispersed by 
blasting may exceed the PEL and the operator is not already physically 
separated from the nozzle and blast material (29 CFR 
1926.57(f)(5)(ii)). Second, OSHA relied on the general industry 
respiratory protection standard, 29 CFR 1910.134, which applies to both 
construction and shipyards, because it requires employers to provide a 
respirator to each employee when necessary to protect the employee's 
health. Third, OSHA relied on the mechanical paint removers standard, 
29 CFR 1915.34, which applies to abrasive blasting in shipyards, and 
``requires respiratory protection and other appropriate personal 
protective equipment in abrasive blasting operations for both abrasive 
blasting operators and helpers working in the area'' (29 CFR 
1915.34(c)(3)). Finally, OSHA relied on the standard covering confined 
and enclosed spaces in shipyard employment, which prohibits employees 
from entering a space whose atmosphere exceeds a PEL except for 
emergency rescue, or for a short duration for installation of 
ventilation equipment, provided that the atmosphere in the space is 
monitored continuously and respiratory protection and other necessary 
and appropriate PPE and clothing are provided (29 CFR 1915.12).
    A number of commenters focused specifically on the degree of 
overlap between the construction and shipyards standards' respiratory 
protection requirements and the respiratory protection requirements in 
other OSHA standards. Some agreed with OSHA's preliminary determination 
that the respiratory protection provisions contained in paragraph (g) 
of the standards were unnecessary because the workers were adequately 
protected by other applicable standards. For example, the ABMA stated 
that OSHA's preliminary determination was ``absolutely correct'' 
(Document ID 2142, p. 9). In support of its statement, ABMA submitted a 
report prepared for it by Exponent (Document ID 2142, Attachment 1), 
which stated that the rules governing abrasive blasting currently in 
effect for both the construction and shipyards industries already 
require engineering and administrative controls and PPE, including an 
air supply respirator and a hood or blasting helmet (Document ID 2142, 
Attachment 1, pp. 5-6, 11). SBA similarly noted its ``understanding'' 
that employees performing abrasive blasting and welding in the 
construction and shipyard sectors are already protected by OSHA 
standards and industry practices that provide for ventilation, PPE, and 
respiratory protection (Document ID 2120, p. 6).
    Other commenters objected to the proposed removal of paragraph (g) 
(see, e.g., Document ID 2124; 2129; 2135; 2140). Some argued that 
existing respiratory protection requirements in other standards are not 
sufficient to protect all of the employees exposed to beryllium in 
construction and shipyards, especially employees who are exposed due to 
abrasive blasting. For example, NABTU commented that the ventilation 
standard ``does little, if anything, for [construction] workers other 
than the blasting operators'' (Document ID 2129, p. 9). Specifically, 
NABTU observed that the ventilation standard ``does not require 
respiratory protection for pot tenders, helpers, or bystanders, instead 
simply stating that dust-filter respirators `may be used' for 
operations such as clean up, loading, or unloading'' (Document ID 2129, 
p. 9).
    AFL-CIO echoed NABTU's concerns, commenting that the ventilation 
standard, 29 CFR 1926.57, and the mechanical paint removers standard, 
29 CFR 1915.34, do not protect workers, such as pot tenders, cleanup 
workers, demolition workers, machinists, surveyors, maintenance and 
repair workers and other bystanders, who are performing other tasks in 
operations like abrasive blasting (Document ID 2140, pp. 3, 5). It 
argued that these workers are at serious risk from beryllium dust 
created by abrasive blasting operations, and, importantly, do not share 
the same baseline protections as abrasive blasters and welders 
(Document ID 2140, p. 3).
    USW expressed similar concerns in its comments (Document ID 2124, 
pp. 2, 10-11). Its USW Local Union 8888 safety committee stated that it 
knows from on-the-job experience that, even though shipyard abrasive 
blasters are required to wear an airline respirator, others on the 
blasting crew in shipyards are not required to wear any type of 
respiratory protection (Document ID 2124, pp. 2, 11). In support, USW 
quoted the testimony of USW Local Union 8888 member Dennis Johnson, who 
testified at OSHA's March 2016 public hearing on the 2015 beryllium 
proposal that, in his experience in shipyards, ``only the blasters had 
the respirators'' (Document ID 2124, p. 10 (quoting Document ID 1756, 
Tr. 246-49)). USW noted that this issue is not confined to the shipyard 
industry; Mr. Johnson's experience is comparable to USW members' 
experience in construction operations (Document ID 2124, p. 11).
    After considering the comments, OSHA concludes that there is 
partial, but not complete, overlap between other OSHA standards and 
paragraph (g) of the final construction and shipyards rules. It is true 
that paragraph (g) requires respiratory protection to be selected and 
used in accordance with OSHA's general respiratory protection standard, 
29 CFR 1910.134, and that the general industry respiratory protection 
standard is independently applicable to

[[Page 51394]]

the construction and shipyards sectors (see 29 CFR 1926.103, 1915.154). 
However, other standards on which OSHA relied in the NPRM do not apply 
to all situations or tasks in which workers covered by the construction 
or shipyards beryllium standards might engage.
    Moreover, the construction and shipyards standards contain 
requirements that go beyond the baseline requirements in other OSHA 
standards, including the general industry respiratory protection 
standard. Unlike the beryllium standards, none of the standards on 
which OSHA relied in the NPRM require respiratory protection for an 
employee who is eligible for medical removal under the standard but 
chooses to remain in a job with airborne exposure at or above the 
action level, or require employers to provide PAPRs when an employee 
entitled to a respirator under the beryllium standard requests one. 
Indeed, in the 2017 final rule, OSHA specifically recognized that the 
PAPR provision went beyond the baseline provisions of the respiratory 
protection standard (82 FR at 2678).
    Therefore, other standards do not completely overlap the standards' 
respiratory protection requirements. This conclusion supports OSHA's 
determination not to revoke the standards' ancillary provisions in this 
final rule.
Personal Protective Clothing and Equipment, Paragraph (h)
    Paragraph (h) requires employers to provide and ensure the use of 
PPE for employees exposed to beryllium, and also contains provisions 
pertaining to the removal, storage, cleaning, and replacement of the 
PPE. To comply with paragraph (h), employers are expected to choose the 
appropriate type of PPE for their employees based on the results of the 
employer's hazard assessment (82 FR at 2682). In the 2017 final rule, 
OSHA stated that the PPE requirements are intended to protect employees 
by preventing the accumulation of airborne beryllium on clothing, 
shoes, and equipment, which can result in additional inhalation 
exposure. The PPE requirements also protect employees in other work 
areas, as well as employees and other individuals outside the 
workplace, from exposures that could occur if contaminated clothing 
were to transfer beryllium to those areas (82 FR at 2678).
    In the 2017 NPRM, OSHA identified several OSHA standards that 
require employees engaged in abrasive blasting operations (in 
construction and shipyards) and welding operations (in shipyards) to 
use PPE during their work (82 FR at 29197). OSHA stated that, in 
construction, 29 CFR 1926.57(f)(5)(v) requires abrasive blasting 
operators to wear full PPE, including respirators, gloves, safety 
shoes, and eye protection. Similarly, 29 CFR 1915.34(c)(3) requires 
full PPE for abrasive blaster operators performing mechanical paint 
removal in shipyards (82 FR at 29197). In addition, OSHA noted that 
gloves are required by 29 CFR 1915.57(a) to protect welders in 
shipyards, and that ``relevant PPE is required by the existing personal 
protective equipment standard (1926.95) and the existing hand and body 
protection standard (1915.157) to protect blasting helpers in 
construction and shipyards, respectively, from dermal exposure to 
beryllium dust'' (82 FR at 29197). Given the other standards' PPE 
requirements, OSHA preliminarily estimated that affected employees are 
required to be equipped with PPE 100 percent of the time when exposed 
to beryllium (82 FR at 29197).
    In response to the 2017 proposal, NELP stated that the requirements 
in paragraph (h), which state ``clearly and specifically when and what 
type of PPE is required,'' do not exist in other OSHA standards and 
that, without paragraph (h) of the beryllium standards, ``employees 
will clearly not receive these protections'' (Document ID 2106, p. 6). 
Other commenters criticized OSHA's estimates regarding the existing use 
of PPE in the affected construction and shipyard operations. NABTU 
strongly disagreed with OSHA's statement in the 2017 NPRM that 
``[b]aseline usage of . . . PPE is far higher in construction and 
shipyards (82 FR at 29216)'' (Document ID 2129, p. 7). Members of 
Congress commented that OSHA's preliminary estimate that there is 
already a high level of compliance with other OSHA standards did ``not 
appear to be supported by testimony from the hearing'' (Document ID 
2135, p. 7). The hearing testimony ``suggests that while the abrasive 
blasters may have protections, there is limited or no protection for 
many other workers, including bystanders, who are exposed to beryllium-
containing dust under the pre-existing standards'' (Document ID 2135, 
p. 7). The Beryllium Health and Safety Committee Task Group also 
expressed concern about OSHA's assumption that affected workers are 
required to be equipped with PPE 100 percent of the time, stating that 
the agency ``does not have supporting evidence of consistent and 
standard use across pot tenders and cleanup activities supporting 
abrasive blasting'' (Document ID 2118, p. 5).
    After reviewing the comments, OSHA is persuaded that other OSHA 
standards only partially overlap with the requirements of paragraph 
(h). Some workers exposed to beryllium in construction and shipyards, 
such as abrasive blasting helpers, would not be fully protected if OSHA 
revoked the requirements for PPE in their entirety. In addition, the 
overlapping PPE standards that OSHA cited in the NPRM do not contain 
any removal, storage, cleaning, and replacement requirements that would 
minimize cross-contamination and migration of beryllium dust. These 
provisions are necessary to protect workers who are wearing the PPE 
from additional inhalation exposure that could come from improper 
removal of the PPE.
    Therefore, other standards do not completely overlap with or 
duplicate the standards' PPE requirements. This conclusion supports 
OSHA's determination not to revoke the standards' ancillary provisions 
in this final rule.
Hygiene Areas and Practices, Paragraph (i)
    Paragraph (i) contains requirements for hygiene areas and 
practices. Paragraph (i) requires employers to: (1) Provide readily 
accessible washing facilities to remove beryllium from the hands, face, 
and neck (paragraph (i)(1)(i)); (2) ensure that employees who have 
dermal contact with beryllium wash any exposed skin (paragraph 
(i)(1)(ii)); (3) provide change rooms if employees are required to use 
personal protective clothing and are required to remove their personal 
clothing (paragraph (i)(2)); (4) ensure that employees take certain 
steps to minimize exposure in eating and drinking areas (paragraph 
(i)(3)); and (5) ensure that employees do not eat, drink, smoke, chew 
tobacco or gum, or apply cosmetics in areas where there is a reasonable 
expectation of exposure above the TWA PEL or STEL (paragraph (i)(4)).
    While emphasizing the importance of hygiene areas and practices in 
the final rule, OSHA also acknowledged that the sanitation standards in 
construction (29 CFR 1926.51) and shipyards (29 CFR 1915.88) include 
provisions similar to some of those in the beryllium standards. For 
example, the sanitation standards include hygiene provisions requiring 
the employer to provide change rooms with separate storage facilities 
for protective clothing whenever employees are required by an OSHA 
standard to wear protective clothing. The sanitation standards also 
require employers to provide wash

[[Page 51395]]

facilities and prohibits storage or consumption of food or beverages in 
any area where employees are exposed to a toxic material (82 FR at 
2684). OSHA pointed out this potential overlap in the NPRM (82 FR at 
29205).
    In response to the NPRM, OSHA received only two comments that 
specifically addressed paragraph (i). One comment, from NABTU, 
expressed the need for hygiene requirements such as washing facilities, 
change rooms, and eating and drinking areas to prevent the spread of 
beryllium, noting that ``[w]hen beryllium-exposed workers are afforded 
washing and clean-up areas, all construction workers on the site are 
protected from exposure'' (Document ID 2129, p. 7). On the other hand, 
ABMA identified a number of existing standards, including the 
sanitation standards, applicable to employees in construction and 
shipyards, and argued that these provisions provide adequate protection 
from exposure to beryllium (Document ID 2142, pp. 9-10). ABMA also 
indicated that hygiene practices are utilized during abrasive blasting 
regardless of the beryllium standard due to other substance-specific 
standards such as lead, hexavalent chromium, cadmium, and arsenic, 
which require employees who are exposed to these materials through 
abrasive blasting to wash their hands and face (Document ID 2142, 
Attachment 1, p. 6).
    After considering the comments, OSHA concludes that there is 
overlap between the sanitation standards for construction and shipyards 
and paragraph (i) of the beryllium rules for construction and 
shipyards. However, this overlap is not complete. For example, the 
sanitation standard for the construction industry prohibits 
``consum[ing] food or beverages in . . . any area exposed to a toxic 
material,'' 29 CFR 1926.51(g), and the sanitation standard for 
shipyards similarly prohibits the consumption or storage of ``food, 
beverages, and tobacco products . . . in any area where employees may 
be exposed to hazardous or toxic substances,'' 29 CFR 1915.88(h). The 
beryllium standards, on the other hand, contain more exacting 
requirements that do not overlap with these requirements--specifically, 
requirements that employers keep ``surfaces in eating and drinking 
areas . . . as free as practicable of beryllium,'' 29 CFR 
1915.1024(i)(3)(i) and 1926.1124(i)(3)(ii), and prohibit ``employees 
[from] enter[ing] any eating or drinking area with 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,'' 29 CFR 
1915.1024(i)(3)(ii) and 1926.1124(i)(3)(iii).
    Thus, other standards do not completely overlap the standards' 
hygiene area and practices requirements.
Housekeeping, Paragraph (j)
    Paragraph (j) requires employers in both construction and shipyards 
to follow the cleaning procedures in their written exposure control 
plan, clean up spills and emergency releases promptly, use appropriate 
cleaning methods, and provide recipients of beryllium containing 
materials for disposal with a copy of the warnings described in 
paragraph (m) (82 FR at 2688). In the preamble to the 2017 final rule, 
OSHA indicated that these provisions are important because they 
minimize sources of exposure to beryllium that engineering controls do 
not completely eliminate (82 FR at 2689).
    In the NPRM, OSHA identified other OSHA standards that might 
duplicate some provisions of paragraph (j) (82 FR at 29197). These 
included the construction ventilation standard, 29 CFR 1926.57(f)(7), 
which requires that dust not be allowed to accumulate outside abrasive 
blasting enclosures and that spills be cleaned up promptly. Other 
standards applicable to abrasive blasting operations in construction, 
29 CFR 1926.57(f)(3) and (f)(4), also require exhaust ventilation and 
dust collection and removal systems. Likewise, certain provisions of 
OSHA's general ventilation standard for abrasive blasting, 29 CFR 
1910.94(a), apply to shipyards. For example, 29 CFR 1910.94(a)(7)) 
requires that ``[d]ust shall not be permitted to accumulate on the 
floor or on ledges outside of an abrasive-blasting enclosure, and dust 
spills shall be cleaned up promptly . . .'' (82 FR at 29197). OSHA 
stated that compliance with these provisions ``already ensures that 
employers take some steps during the blasting operations to prevent 
accumulations of dust sufficient to create exposures exceeding the PEL 
in clean-up after blasting operations are completed'' (82 FR at 29197).
    Some commenters supported revocation of paragraph (j) on the basis 
of overlapping and duplicative provisions (e.g., Document ID 2142, 
Attachment 1, p. 7 (citing 29 CFR 1926.57(f)(7)). However, other 
commenters argued that at least some of the beryllium standards' 
housekeeping provisions are not duplicated by other OSHA standards. For 
example, NABTU indicated that the ventilation standard does not 
prohibit dry sweeping and brushing, which are prohibited by the 
beryllium standards except in limited circumstances (Document ID 2129, 
p. 9; see also 2140, p. 8). Similarly, the AFL-CIO pointed out that 
abrasive blasting cleanup workers who clean and recycle spent abrasive 
would not be protected by other OSHA standards when performing these 
tasks (Document ID 2140, p. 8).
    After reviewing the comments, OSHA is persuaded that other OSHA 
standards do not completely overlap with, or duplicate the protections 
of, the construction and shipyards standards' housekeeping 
requirements. Some workers exposed to beryllium, such as abrasive 
blasting cleanup workers, would not be adequately protected if OSHA 
revoked paragraph (j) in its entirety. In addition, the provisions 
prohibiting dry sweeping, dry brushing, and the use of compressed air 
except under certain circumstances are not contained in other OSHA 
standards. OSHA's determination that other standards do not completely 
overlap with the beryllium standards' housekeeping requirements 
supports the agency's decision not to revoke the standards' ancillary 
provisions in this final rule.
Medical Surveillance, Paragraph (k)
    Paragraph (k) includes provisions for medical surveillance in 
connection with occupational exposure to beryllium. It requires 
employers in both construction and shipyards to offer eligible 
employees, at no cost to the employee, participation in the medical 
surveillance program. Paragraph (k) specifies requirements of the 
medical surveillance program, such as which employees are eligible for 
medical surveillance, as well as the frequency and content of medical 
examinations.
    As explained in the 2017 final rule, the purposes of medical 
surveillance for beryllium are: (1) To identify beryllium-related 
adverse health effects so that appropriate intervention measures can be 
taken; (2) to determine if an employee has any condition that might 
make him or her more sensitive to beryllium exposure; and (3) to 
determine the employee's fitness to use personal protective equipment 
such as respirators (82 FR at 2696). The inclusion of medical 
surveillance in the beryllium standards for construction and shipyards 
is consistent with section 6(b)(7) of the OSH Act (29 U.S.C. 
655(b)(7)), which requires that, where appropriate, medical 
surveillance programs be included in OSHA health standards to aid in 
determining whether the health of employees is adversely

[[Page 51396]]

affected by exposure to the hazards addressed by the standard.
    In the NPRM, OSHA asked several specific questions regarding 
whether it should keep all or some of the standard's medical 
surveillance requirements (82 FR at 29183). While some comments that 
OSHA received in response to these questions supported revocation (see 
e.g., Document ID 2142, pp. 3, 16-19), most of the stakeholders that 
responded to OSHA's request for comment on issues related to medical 
surveillance argued that the agency should retain the medical 
surveillance provisions in the construction and shipyards standards 
(see, Document ID 2117, pp. 1-2; 2140, pp. 5, 8-9; 2130, pp. 1-2; 2132, 
pp. 1-2; 2118, pp.1-3; 2121, p. 3; 2119, p. 2; 2133, pp. 1-3; 2106, pp. 
3, 4, 6, 7; 2129, pp. 1, 3-5, 7-8, 10; 2123, pp. 1-3; 2134, p. 2; 2131, 
pp. 1-2; 2124, pp. 6, 12; 2136, pp. 1-3; 2135, pp. 2-4).
    Of significance to this final rule, several stakeholders noted that 
no other standards require medical surveillance for beryllium-exposed 
workers in the shipyard or construction sectors (see, e.g., Document ID 
2106, p. 6; 2133, p. 1; 2140, p. 5). OSHA agrees with these comments. 
OSHA therefore concludes that the beryllium standards' medical 
surveillance provisions do not overlap with any other OSHA standard. 
This conclusion supports OSHA's determination not to revoke the 
standard's ancillary provisions in this final rule.
Medical Removal Protection, Paragraph (l)
    Paragraph (l) of the standards establishes requirements for medical 
removal, which apply only to a limited category of workers who are 
suffering health effects related to their exposure to beryllium. 
Medical removal benefits include, at the employee's choice, either 
remaining in a job with exposures above the action level while using 
respiratory protection or being transferred to a job with exposures 
below the action level, along with maintenance of earnings and other 
benefits for six months. OSHA determined in the 2017 final rule that 
medical removal provisions provide workers with incentives to 
participate in the medical surveillance program, and that they also 
give workers with sensitization or CBD the opportunity and means to 
minimize further exposure to beryllium (82 FR at 2724). Although OSHA 
considered in the 2017 NPRM whether other OSHA standards might provide 
equivalent protections to affected workers, the agency's review of 
existing standards found that no other standards duplicate the 
requirements of paragraph (l). Similarly, several commenters stated 
that there are no overlapping or duplicative OSHA requirements for 
medical removal related to beryllium exposure (see, e.g., Document ID 
2106, p. 6; 2134, p. 2), and no commenters pointed to other OSHA 
standards that provide overlapping protections. OSHA's conclusion that 
there is no overlap supports its determination not to revoke the 
standard's ancillary provisions in this final rule.
Communication of Hazards, Paragraph (m)
    Paragraph (m) sets forth the employer's obligations to comply with 
OSHA's hazard communication standard (HCS) (29 CFR 1910.1200) relative 
to beryllium, and to provide warnings and training to employees about 
the hazards of beryllium.
    In the 2017 final rule, OSHA discussed the importance of the 
communication of hazards provision (see 82 FR at 2724-29). The agency 
pointed out the need for employees to understand the hazards of 
beryllium exposure, the protective measures necessary to minimize 
potential health hazards, and the rights afforded them under these 
standards. OSHA also noted that the training requirements serve to 
explain and reinforce the information available on labels and Safety 
Data Sheets (SDSs), which are most effective when employees understand 
the information (82 FR at 2724). Because beryllium is a hazardous 
chemical with serious and debilitating health effects, it is imperative 
that employers ensure that employees can demonstrate that they 
understand the training materials and have knowledge of the topics 
covered during the training sessions.
    In the NPRM, OSHA stated that 29 CFR 1926.21 requires construction 
employers to train their employees in the recognition and avoidance of 
unsafe conditions, and that, in particular, Sec.  1926.21(b)(3) 
requires that employers instruct employees on the safe handling and use 
of harmful substances, and make employees aware of the potential 
hazards, personal hygiene, and personal protective measures required 
(82 FR at 29221). OSHA further stated that the HCS, which applies to 
the construction and shipyard industries (29 CFR 1915.1200, 1926.59), 
requires training, including training on the hazards of the chemicals 
in the work area and the appropriate work practices, emergency 
procedures, and personal protective equipment to be used (29 CFR 
1910.1200(h)(3)) (Id. at 29221-29222).
    Some commenters stated either generally that the ancillary 
provisions of the construction and shipyards rules were duplicative of 
other OSHA standards, or specifically that adequate hazard 
communication protections were already contained in the HCS and OSHA's 
abrasive blasting guidance (see, e.g., Document ID 2120, p. 6; 2122, p. 
2; 2142 Attachment 1, p. 6). Other commenters stated that, if OSHA 
rescinded the standards' ancillary provisions, employers in the 
construction and shipyards industry would not be required to conduct 
the beryllium-specific training required by the rules (see, e.g., 
Document ID 2121, p. 3; 2129, pp. 4, 10; 2133, p. 2; 2134, p. 2).
    After considering the comments, OSHA concludes that there is some, 
but not complete, overlap between other OSHA standards and paragraph 
(m) of the beryllium standards for construction and shipyards. As OSHA 
stated in the 2017 final rule, the beryllium standards' hazard 
communication requirements were intended to be ``substantively as 
consistent as possible with the HCS,'' but also included ``additional 
specific requirements needed to protect employees exposed to 
beryllium'' (82 FR at 2724).
    First, paragraph (m) of the beryllium standards goes beyond the 
requirements of the HCS. For example, paragraph (m)(3)(ii) of the 
beryllium standards requires specific training on the signs and 
symptoms of CBD, the employer's written exposure control plan, specific 
operations that can lead to employee exposure to beryllium, measures 
that employees can take to protect themselves from exposure, and the 
purpose and description of the medical surveillance and medical removal 
protection requirements of the standards. These topics would not 
necessarily be covered by training that is required by the hazard 
communication standard.
    Moreover, the beryllium standards require employers to provide 
employees with training on the specific hazards associated with 
beryllium exposure; as OSHA stated in the 2017 final rule, ``[w]hile 
OSHA agrees that the HCS is designed to cover all chemical hazards in 
the workplace[,] . . . OSHA finds that employees need to be trained on 
the hazards specifically associated with beryllium, in addition to the 
training they receive under the HCS'' (82 FR at 2726). Finally, the 
beryllium-specific training required by the construction and shipyards 
standards must be provided more often than what the HCS alone would 
require; after receiving initial training (as required by paragraph 
(h)(1) of the HCS), the beryllium standards require that employees

[[Page 51397]]

receive annual retraining on the beryllium hazards (29 CFR 
1915.1024(m)(4)(i)(C) and 1926.1124(m)(3)(i)(C)).
    Second, paragraph (m) of the beryllium standards goes beyond the 
requirements of 29 CFR 1926.21. Compliance with that standard would not 
require employers to meet the more exacting requirements of the 
beryllium standard, such as the annual retraining requirement.
    Therefore, other standards do not completely overlap the beryllium 
standards' communication of hazard requirements. This conclusion 
supports OSHA's determination not to revoke the standards' ancillary 
provisions in this final rule.
Recordkeeping, Paragraph (n)
    Paragraph (n) of the construction and shipyards standards for 
beryllium requires employers to make and maintain records of air 
monitoring data, objective data, medical surveillance, and training. 
Employers must maintain the records, and make them available to 
employees and their designated representatives, in accordance with 
OSHA's records access standard, 29 CFR 1910.1020. In the 2017 final 
rule, OSHA pointed out that the requirement to maintain records of 
exposure assessments is critical because the records enable employers 
to ensure compliance with the exposure assessment provisions, and 
ascertain which of the standards' provisions are triggered based on the 
assessments (82 FR at 2729-2730). OSHA described the medical 
surveillance records requirement as necessary for the protection of 
employee health and proper enforcement of the standards (82 FR at 
2732). Finally, according to OSHA, the creation and maintenance of 
training records under paragraph (n)(4) permits both OSHA and employers 
to ensure that the required training occurs on schedule (82 FR at 
2733).
    In the NPRM, OSHA proposed to remove all recordkeeping requirements 
for the construction and shipyards beryllium standards as part of the 
proposed removal of all of the standards' ancillary provisions (82 FR 
at 29183). Removal of paragraph (n) would have been consistent with the 
proposed removal of the other ancillary provisions because the 
recordkeeping provisions are dependent on those other provisions; for 
example, without the standards' medical surveillance requirements, 
there would be no medical surveillance records to create or maintain. 
The proposed removal of the ancillary provisions was based on OSHA's 
preliminary determination that a number of other OSHA standards apply 
to the primary operations involving beryllium exposure in construction 
and shipyards, resulting in duplicative protections (82 FR at 29183).
    OSHA did not receive any comments that were responsive to the issue 
of whether other OSHA standards impose recordkeeping requirements that 
overlap with or duplicate the requirements in paragraph (n). OSHA's own 
analysis, however, indicates that there is no overlap with other 
standards. OSHA's access to employee exposure and medical records 
standard, 29 CFR 1910.1020, governs the preservation and maintenance of 
employee exposure and medical records, as well as access to those 
records for employees and designated representatives. However, the 
records access standard does not require the creation of those records. 
Instead, paragraph (n) of the beryllium standards contains the 
requirements for employers to create records related to beryllium, 
including records of exposure assessment, medical surveillance, and 
training. It then refers to 29 CFR 1910.1020 for the requirements 
governing preservation and maintenance of, and access to, those records 
(e.g., paragraph (n)(1)(iii)). Paragraph (n) and 29 CFR 1910.1020 are, 
therefore, complementary, rather than overlapping or duplicative.
    OSHA has determined that no other OSHA standards contain 
recordkeeping requirements that are duplicative of the recordkeeping 
requirements in paragraph (n) of the beryllium standards for 
construction and shipyards. This conclusion supports OSHA's 
determination not to revoke the standard's ancillary provisions in this 
final rule.
Conclusion
    Based on the discussion above, the agency is not finalizing its 
proposed revocation of the ancillary provisions in the construction and 
shipyards standards. Instead, OSHA has decided to proceed with a new, 
more comprehensive proposal to amend the standards that accounts for 
the protections of other OSHA standards, where appropriate, and 
maintains a high level of worker protection. The new proposal will also 
ensure consistency with the general industry standard, both in terms of 
the changes made via the DFR in July 2016 (see 83 FR 31045) and the 
additional changes proposed by OSHA in December 2018 (see 83 FR 63746).

C. Changes to the Compliance Dates in Paragraph (o)

    Paragraph (o) of the standards for construction and shipyards sets 
forth the effective date of the standards as well as the dates for 
compliance with their requirements. The 2017 final rule set the 
compliance dates as follows: March 12, 2018, for all obligations of the 
standards, except for change rooms, which were required to be provided 
by March 11, 2019, and engineering controls, which had to be 
implemented by March 10, 2020 (29 CFR 1915.1024(o)(2); 29 CFR 
1926.1124(o)(2)). In the NPRM, which was published in June 2017, OSHA 
announced that it would not enforce the 2017 construction and shipyards 
standards ``without further notice while this new rulemaking is 
underway'' (82 FR at 29183). Subsequently, in March 2018, OSHA stated 
that it would begin enforcing the PEL and STEL on May 11, 2018 (see 
Memorandum for Regional Administrators, Delay of Enforcement of the 
Beryllium Standards under 29 CFR 1910.1024, 29 CFR 1915.1024, and 29 
CFR 1926.1124, Mar. 2, 2018, available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-03-02). OSHA also clarified in a May 
9, 2018, interim enforcement memorandum that it would begin enforcing 
the construction and shipyards beryllium standards' PEL and STEL on May 
11, 2018, but would not enforce any other provisions of those standards 
absent further notice (see Interim Enforcement Memorandum and Notice of 
Delay in Enforcement for Certain Provisions of the Beryllium Standards, 
May 9, 2018, available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-05-09). Since May 11, 2018, OSHA has been 
enforcing only the exposure limits, which are contained in paragraph 
(c) of both standards.
    In the NPRM, OSHA requested comment on whether the agency should 
delay the compliance dates of the construction and shipyards standards 
for an additional year (see 82 FR at 29183). This delay ``would give 
affected employers additional time to come into compliance with [the 
standards'] requirements, which could be warranted by the uncertainty 
created by this proposal'' (82 FR at 29183). After careful 
consideration of the information received in response to this request 
for comments, and for the reasons set out below, OSHA has determined 
that it is appropriate to extend the compliance dates for all ancillary 
provisions of the construction and shipyards standards for beryllium to 
September 30, 2020. This final rule has no effect on

[[Page 51398]]

compliance with the requirements of paragraph (c); compliance with the 
PEL and STEL has been enforced since May 2018.
    OSHA received comments both for and against the proposed delay of 
the compliance dates for the construction and shipyards standards. 
Employers and trade associations by and large supported delaying the 
compliance date by a year (e.g., Document ID 2125, p. 23; 2145, 
Comments, p. 36; 2141, Comments, pp. 1-2, 11). ABMA stated that, 
``[s]hould OSHA retain or promulgate any new beryllium standards for 
construction and shipyards,'' an additional year would be necessary to 
allow the industries ``sufficient time to prepare for and implement 
[the] standards'' (Document ID 2142, Comments, p. 4). Newport News 
Shipbuilding stated that additional time was particularly important in 
order for employers to figure out how to comply with the exposure 
assessment provisions of the standards for blasting operations 
(Document ID 2095, p. 1). The Beryllium Health and Safety Committee 
Task Group, which argued that all ancillary provisions should be 
retained, nevertheless urged OSHA to implement a one-year compliance 
deadline delay (see Document ID 2118, pp. 1-2). The Task Group noted 
that the ancillary provisions impose extensive compliance obligations, 
and that additional time would be necessary for employers to engage in 
research and collaboration on the exposure monitoring provisions and to 
incorporate the medical surveillance obligations into their policies 
and programs (see Document ID 2118, p. 2). Similarly, several public 
health and medical experts who strongly opposed revoking the ancillary 
provisions stated they had no objection to the proposal to extend the 
compliance dates (see Document ID 2123, p. 3).
    The West Virginia Oil and Natural Gas Association argued that the 
uncertainty over whether the ancillary provisions of the construction 
and shipyards standards would be eventually withdrawn by OSHA makes a 
delay of compliance obligations necessary (see Document ID 2122, p. 4; 
see also 2145, Comments, p. 36). CISC also cited ``the posture of this 
rulemaking and the uncertainty surrounding it'' as reasons that the 
regulated industries would need additional time to determine the impact 
of any future final rule (Document ID 2125, p. 23). Century Aluminum 
Company (Century Aluminum) indicated that a delay of the ``complex and 
burdensome'' compliance requirements was necessary so that ``employers 
do not spend immense amounts of time and money to comply with 
requirements that ultimately are amended or rescinded'' (Document ID 
2141, Comments, p. 11; see also 2141, Attachment 3, pp. 9-10 (``if 
appropriate revisions to the final Rule cannot be achieved within an 
adequate period of time, a stay of the compliance dates may become 
necessary to avoid unwarranted burdens'')).
    Other commenters, including labor organizations, public interest 
groups, and private citizens, firmly opposed OSHA's proposed extension 
of the compliance dates (e.g., Document ID 2140, p. 9; 2129, p. 11; 
2132, p. 2; 2133, p. 4; 2084). These commenters were primarily 
concerned that any further delay in implementing the standards would 
prolong workers' exposures to unsafe levels of beryllium, increasing 
their risk of beryllium-related health effects (e.g., Document ID 2140, 
p. 9). As Dr. Lee S. Newman stated, ``[k]nowing that construction and 
shipyard workers are at risk for developing incurable lung disease that 
can be prevented by compliance with this standard, it is morally and 
ethically indefensible to delay'' (Document ID 2136, p. 4). The Union 
of Concerned Scientists emphasized that, until compliance with the 
standards is required, ``workers will continue to be exposed to 
beryllium at levels clearly known to be unsafe'' (Document ID 2131, p. 
2; see also 2130, p. 2). NELP and National Jewish Health also pointed 
out that employers were given more than a year to comply with most 
provisions of the standards, and over three years for others, making 
additional time unnecessary and unwarranted (Document ID 2133, p. 4; 
2106, p. 7).
    Commenters, furthermore, pointed out that the uncertainty cited by 
OSHA as a reason for delaying the compliance deadlines was of OSHA's 
own making. As one private citizen stated, ``[t]he government should 
not first deliberately create uncertainty about a rule and then cite 
that uncertainty as a reason to weaken the rule and endanger workers'' 
(Document ID 2081; see also 2130, p. 2). Public Citizen noted that, if 
OSHA were to finalize the rule as proposed, rescinding the vast 
majority of the current standards, compliance with the new PEL- and 
STEL-only standards would be easier and there would be even less 
justification for the proposed delay (Document ID 2134, p. 4). 
Similarly, according to NABTU, because OSHA has ``not even suggested 
that it is infeasible for employers to comply with the standard, there 
is no basis for any further delay in the compliance date'' (Document ID 
2129, p. 11).
    After careful consideration of the comments, and in light of OSHA's 
intent to propose different amendments to the standards, OSHA has 
decided to finalize the proposed delay of the compliance deadlines for 
approximately one year in both the construction and shipyards 
standards. The effective date of the standards remains unchanged. 
Amended paragraph (o)(2)(i) states that employers' obligations under 
the exposure limit requirements in paragraph (c) commenced on March 12, 
2018. Thus, paragraph (o)(2)(i) reiterates that those obligations went 
into effect in conformance with paragraph (o)(2) of the 2017 final 
rule. Amended paragraph (o)(2)(ii) reflects the new, delayed compliance 
date of September 30, 2020 for all other obligations of the standards.
    OSHA's decision to delay compliance until September 30, 2020 
reflects the agency's determination that it would be unfair to the 
regulated community to expect compliance by the dates in the standards 
given the agency's decisions to retain all ancillary provisions in this 
final rule and propose different amendments to the standard in a 
forthcoming proposal. As argued by CISC, the high level of uncertainty 
inherent in this regulatory posture makes additional time essential 
(see Document ID 2125, p. 23). In fact, the regulated community is 
facing even more uncertainty now than it was in 2017 when the NPRM was 
published. Requiring compliance with the 2017 final rule, or even 
requiring employers to expend time and money determining how to comply 
with 2017 final rule, would make little sense when the standards, as 
noted by Century Aluminum and ABMA, may ultimately be amended (see 
Document ID 2141, Comments, p. 11; 2142, Comments, p. 4). In finalizing 
the proposed compliance date extension but not the proposed revocation 
of all ancillary provisions, OSHA concurs with commenters like the 
Beryllium Health and Safety Committee Task Group and several public 
health and medical experts, all of whom opposed revoking the ancillary 
provisions but did not object to a delay of the compliance dates (see 
Document ID 2118, pp. 1-2; 2123, p. 3).
    In finalizing the compliance delay, the agency is also being 
consistent with its 2018 delay of the compliance dates for many of the 
ancillary provisions in the beryllium standard for general industry 
(see 83 FR 25536 (June 1, 2018) (NPRM); 83 FR 39351 (Aug. 9, 2018) 
(final rule)). There, OSHA planned to propose modifications to those 
ancillary provisions; the agency reasoned that it would not make sense 
for either the

[[Page 51399]]

agency or the regulated community for OSHA to begin enforcement of 
requirements that would be affected by changes made in the upcoming 
rulemaking. Employers would likely have to take unnecessary measures to 
comply with provisions that could subsequently be modified, resulting 
in wasted resources. Furthermore, the compliance date extension for the 
beryllium general industry standard gave OSHA time to prepare and 
publish the planned substantive NPRM to amend the standard before 
employers were required to comply with the affected provisions of the 
rule (see 83 FR 25536). The reasons OSHA gave in 2018 for delaying 
compliance with the general industry provisions are applicable to the 
agency's current final action in delaying the compliance dates for the 
ancillary provisions of the construction and shipyards standards. 
Indeed, the rationale has particular force here. Unlike in general 
industry, where OSHA planned merely to revise existing requirements in 
the standard, OSHA here previously proposed to revoke the ancillary 
provisions of the construction and shipyards standards entirely. As 
such, employers in these industries likely have not prepared to comply 
with any portion of these provisions.
    In general industry, OSHA proposed to delay the compliance date for 
certain ancillary provisions to allow the agency time to issue a new 
proposal and expressed its intention to rely on its de minimis 
enforcement policy while the rulemaking was pending so that employers 
could comply with the proposed provisions without risk of a citation 
(83 FR at 25537). Such an approach was appropriate in the general 
industry context, where the agency planned to propose discrete changes 
to provisions that employers otherwise expected to go into full effect. 
Here, however, OSHA does not believe reliance on its de minimis policy 
is appropriate. If finalized as proposed, the 2017 NPRM would have 
eliminated any requirement for employers to comply with the ancillary 
provisions of the shipyard and construction standards. Given OSHA's 
decision not to revoke these provisions in this rulemaking and instead 
to propose revisions to the ancillary provisions in a forthcoming 
rulemaking action, OSHA believes that it is appropriate to apply a one-
year compliance extension to allow employers to prepare to comply. The 
proposed delay was supported by several commenters (Document ID 2125, 
p. 23; 2141, p. 11; 2142, p. 4). OSHA also notes that this is 
consistent with the agency's approach in the 2017 final rule, where the 
agency similarly gave all industries one year before any compliance 
obligations began.
    OSHA recognizes the comments highlighting the urgent need for these 
standards and the effect on workers' health that could occur in the 
period before compliance is achieved (e.g., Document ID 2136, p. 4; 
2130, p. 2). However, OSHA notes that the comments highlighting the 
high levels of exposure that workers would continue to experience 
during a compliance delay (e.g. Document ID 2140, p. 9; 2131, p. 2) 
were submitted in 2017, before OSHA began to enforce any aspects of the 
standards. Since May 2018, the agency has been enforcing the new, lower 
exposure limits, providing important protection for workers who were 
previously exposed above these limits (see Memorandum for Regional 
Administrators, Delay of Enforcement of the Beryllium Standards under 
29 CFR 1910.1024, 29 CFR 1915.1024, and 29 CFR 1926.1124, Mar. 2, 2018, 
available at: https://www.osha.gov/laws-regs/standardinterpretations/2018-03-02). OSHA reiterates that employers must continue to comply 
with paragraph (c) (the PEL and STEL) as subsequent rulemaking efforts 
proceeds (see 29 CFR 1915.1024(o)(2)(i) and 29 CFR 1926.1124(o)(2)(i), 
as amended).
    Similarly, OSHA acknowledges the comment, from NABTU, that OSHA has 
not determined compliance with the 2017 final rule to be infeasible for 
construction and shipyard employers, and the comment from Public 
Citizen that compliance with the proposed rule (rescinding all 
ancillary provisions but retaining the PELs) would have been much 
easier to achieve than compliance with the 2017 final rule (see 
Document ID 2129, p. 11; 2134, p. 4). OSHA still considers compliance 
with the 2017 final rule to be feasible; the agency has not stated 
otherwise. Regardless of feasibility, however, it would not make sense 
for OSHA to require employers to comply with, or prepare to comply 
with, ancillary provisions that are in a state of flux, especially 
given that OSHA is enforcing the lower PELs. As for Public Citizen's 
comment that compliance with a final rule revoking all ancillary 
provisions would have been simpler for employers to comply with (see 
Document ID, Attachment 2134, p. 4), OSHA agrees but, as discussed 
above, the agency is not finalizing that portion of the NPRM.
    Finally, OSHA recognizes the comments, from the American Thoracic 
Society and a private citizen, noting that the current regulatory 
uncertainty is of OSHA's own making (Document ID 2081; see also 
Document ID 2130, p. 2). However, as explained herein, OSHA has 
determined that it is more important to proceed apace with a new 
proposal than to require compliance with a standard that is subject to 
change in the near future. The new proposal will account for regulatory 
overlap, where it exists, be consistent with the general industry 
beryllium standard, where appropriate, and maintain crucial worker 
protections.

List of Subjects in 29 CFR Parts 1915 and 1926

    Beryllium, Cancer, Chemicals, Hazardous substances, Health, 
Occupational safety and health.

Authority and Signature

    This document was prepared under the direction of Loren Sweatt, 
Principal Deputy Assistant Secretary of Labor for Occupational Safety 
and Health, U.S. Department of Labor. The agency issues the sections 
under the following authorities: 29 U.S.C. 653, 655, 657; 40 U.S.C. 
3704; 33 U.S.C. 941; Secretary of Labor's Order 1-2012 (77 FR 3912 (1/
25/2012)); and 29 CFR part 1911.

    Signed at Washington, DC, on September 24, 2019.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety 
and Health.

Amendments to Standards

    For the reasons set forth in the preamble, chapter XVII of title 
29, parts 1915 and 1926, of the Code of Federal Regulations is amended 
as follows:

PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD 
EMPLOYMENT

0
1. The authority citation for part 1915 continues to read as follows:

    Authority: 33 U.S.C. 941; 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.


0
2. Amend Sec.  1915.1024 by revising paragraph (o)(2) to read as 
follows:


Sec.  1915.1024   Beryllium.

* * * * *
    (o) * * *
    (2) Compliance dates. (i) All obligations contained in paragraph 
(c) of this standard commence and become enforceable on March 12, 2018; 
and
    (ii) All other obligations of this standard commence and become 
enforceable on September 30, 2020.

[[Page 51400]]

PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

Subpart Z--Toxic and Hazardous Substances

0
3. The authority citation for subpart Z of part 1926 continues to read 
as follows:

    Authority: 40 U.S.C. 3704; 29 U.S.C. 653, 655, 657; and 
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) as applicable; and 29 CFR 
part 1911.
    Section 1926.1102 not issued under 29 U.S.C. 655 or 29 CFR part 
1911; also issued under 5 U.S.C. 553.


0
2. Amend Sec.  1926.1124 by revising paragraph (o)(2) to read as 
follows:


Sec.  1926.1124  Beryllium.

* * * * *
    (o) * * *
    (2) Compliance dates. (i) All obligations contained in paragraph 
(c) of this standard commence and become enforceable on March 12, 2018; 
and
    (ii) All other obligations of this standard commence and become 
enforceable on September 30, 2020.

[FR Doc. 2019-21037 Filed 9-27-19; 8:45 am]
 BILLING CODE 4510-26-P