[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)]
[Proposed Rules]
[Pages 19989-20001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09307]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

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


Revising the Beryllium Standard for General Industry

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

ACTION: Proposed rule.

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

DATES: Comments to this proposal, hearing requests, and other 
information must be submitted (transmitted, postmarked, or delivered) 
by June 6, 2018. All submissions must bear a postmark or provide other 
evidence of the submission date.

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

[[Page 19990]]

the documents in the docket. However, some information (e.g., 
copyrighted material) is not available publicly to read or download 
through this website. All submissions, including copyrighted material, 
are available for inspection at the OSHA Docket Office. Contact the 
OSHA Docket Office for assistance in locating docket submissions.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

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

I. Background

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

II. Consideration of Comments

    OSHA requests comment on all issues related to this proposed rule. 
As discussed more fully below, this proposed rule is the companion 
document to a direct final rule published in the ``Rules'' section of 
this issue of the Federal Register. If OSHA receives no significant 
adverse comment on the proposal or direct final rule, OSHA will publish 
a Federal Register document confirming the effective date of the direct 
final rule and withdrawing this companion Notice of Proposed Rulemaking 
(NPRM). Such confirmation may include minor stylistic or technical 
changes to the direct final rule. For the purpose of judicial review, 
OSHA views the date of confirmation of the effective date of the direct 
final rule as the date of promulgation. If, however, OSHA receives a 
significant adverse comment on the direct final rule or proposal, the 
Agency will publish a timely withdrawal of the direct final rule and 
proceed with the proposed rule, which addresses the same revisions to 
the beryllium standard for general industry.

III. Direct Final Rulemaking

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

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significant adverse comment on either the DFR or this NPRM, it will 
withdraw the companion DFR and proceed with the NPRM. In the event OSHA 
withdraws the DFR because of significant adverse comment, OSHA will 
consider all timely comments received in response to the DFR when it 
continues with the NPRM. After carefully considering all comments to 
the DFR and the NPRM, OSHA will decide whether to publish a new final 
rule.
    OSHA determined that the subject of this rulemaking is suitable for 
direct final rulemaking. This proposed amendment to the standard is 
clarifying in nature and does not adversely impact the safety or health 
of employees. The amended standard would clarify OSHA's intent 
regarding certain terms in the standard, including the definition of 
Beryllium Work Area (BWA), the definition of emergency, and the meaning 
of the terms dermal contact and beryllium contamination. It also would 
clarify OSHA's intent with respect to provisions for disposal and 
recycling and with respect to provisions that the Agency intends to 
apply only where skin can be exposed to materials containing at least 
0.1% beryllium by weight. The revisions would not impose any new costs 
or duties. For these reasons, OSHA does not anticipate objections from 
the public to this rulemaking action.

IV. Discussion of Proposed Changes

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

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

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

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

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

V. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970) 
(``OSH Act''; 29 U.S.C. 651 et seq.) is ``to assure so far as possible 
every working man and woman in the Nation safe and healthful working 
conditions and to preserve our human resources.'' 29 U.S.C. 651(b). To 
achieve this goal, Congress authorized the Secretary of Labor to 
promulgate and enforce occupational safety and health standards. 29 
U.S.C. 655(b), 658. A safety or health standard is a standard that 
``requires conditions, or the

[[Page 19994]]

adoption or use of one or more practices, means, methods, operations, 
or processes, reasonably necessary or appropriate to provide safe or 
healthful employment and places of employment.'' 29 U.S.C. 652(8). A 
standard is reasonably necessary or appropriate when a significant risk 
of material harm exists in the workplace and the standard would 
substantially reduce or eliminate that workplace risk. See Industrial 
Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-42 
(1980) (plurality opinion).
    OSHA need not make additional findings on risk for this proposal. 
As discussed above, this proposal would not diminish the employee 
protections put into place by the standard being amended. And because 
OSHA previously determined that the beryllium standard substantially 
reduces a significant risk (82 FR 2545-52), it is unnecessary for the 
Agency to make additional findings on risk for the minor changes and 
clarifications proposed by this rulemaking. See, e.g., Public Citizen 
Health Research Group v. Tyson, 796 F.2d 1479, 1502 n.16 (DC Cir. 1986) 
(rejecting the argument that OSHA must ``find that each and every 
aspect of its standard eliminates a significant risk.'').
    OSHA has determined that these minor changes and clarifications are 
technologically and economically feasible. All OSHA standards must be 
both technologically and economically feasible. See United Steelworkers 
v. Marshall, 647 F.2d 1189, 1264 (DC Cir. 1980) (``Lead I''). The 
Supreme Court has defined feasibility as ``capable of being done.'' Am. 
Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509-10 (1981) (``Cotton 
Dust''). Courts have further clarified that a standard is 
technologically feasible if OSHA proves a reasonable possibility, 
``within the limits of the best available evidence . . . that the 
typical firm will be able to develop and install engineering and work 
practice controls that can meet the PEL in most of its operations.'' 
Lead I, 647 F.2d at 1272. With respect to economic feasibility, courts 
have held that ``a standard is feasible if it does not threaten massive 
dislocation to or imperil the existence of the industry.'' Id. at 1265 
(internal quotation marks and citations omitted). In the final economic 
analysis (FEA) for the 2017 beryllium rule, OSHA concluded that the 
rule was economically and technologically feasible. OSHA has 
preliminarily determined that this proposal is also economically and 
technologically feasible, because it does not impose any new 
requirements or costs.

VI. Preliminary Economic Analysis and Regulatory Flexibility Act 
Certification

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

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

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

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

2. Discussion of Overhead Costs

    As in the 2017 FEA, OSHA has not accounted for overhead labor costs 
in its analysis of the cost savings for this proposal due to concerns 
about consistency. There are several ways to look at the cost elements 
that fit the definition of overhead, and there is a range of overhead 
estimates currently used within the federal government--for example, 
the Environmental Protection Agency has used 17 percent,\3\ and 
government contractors have been reported to use an average of 77 
percent.\4\ Some overhead costs, such as

[[Page 19995]]

advertising and marketing, may be more closely correlated with output 
than with labor. Other overhead costs vary with the number of new 
employees. For example, rent or payroll processing costs may change 
little with the addition of 1 employee in a 500-employee firm, but may 
change substantially with the addition of 100 employees. If an employer 
is able to rearrange current employees' duties to implement a rule, 
then the marginal share of overhead costs, such as rent, insurance, and 
major office equipment (e.g., computers, printers, copiers) would be 
very difficult to measure with accuracy.
---------------------------------------------------------------------------

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

    If OSHA had included an overhead rate when estimating the marginal 
cost of labor, without further analyzing an appropriate quantitative 
adjustment, and adopted for these purposes an overhead rate of 17 
percent on base wages, the cost savings of this proposal would increase 
to approximately $0.39 million per year, at discount rates of either 3 
percent or 7 percent.\5\ The addition of 17 percent overhead on base 
wages would therefore increase cost savings by approximately 7 percent 
above the primary estimate at either discount rate.
---------------------------------------------------------------------------

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

3. Cost Impact of the Changes to the Standard

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

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

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

[[Page 19996]]

a 3 or 7 percent discount rate. Annualized costs by provision and 
discount rate can be seen below in Tables 2 and 3.
    c. Hygiene areas and practices. The proposed adoption of a 
definition for ``contaminated with beryllium'' would also reduce the 
costs of complying with the Hygiene Areas and Practices provision in 
primary aluminum production (the costs for coal-fired utilities would 
not be affected). The 2017 Final Beryllium Rule requires employers to 
provide showers where both of two conditions are met:

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

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

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

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

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

4. Economic and Technological Feasibility

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

5. Effects on Benefits

    This proposal would clarify aspects of the 2017 general industry 
beryllium standard to address unintended

[[Page 19997]]

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

6. Regulatory Flexibility Act Certification

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

    \9\ OSHA investigated whether the projected cost savings would 
exceed 1 percent of revenues or 5 percent of profits for small 
entities and very small entities for every industry. To 
preliminarily 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 proposal are such a small percentage of revenues and profits 
for every affected industry that OSHA's criteria would not be 
exceeded for any industry.

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


[[Page 19998]]


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


[[Page 19999]]


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


[[Page 20000]]

VII. OMB Review Under the Paperwork Reduction Act of 1995

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

VIII. Federalism

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

IX. State Plan States

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

X. Unfunded Mandates Reform Act

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

List of Subjects in 29 CFR Part 1910

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

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

Proposed Amendments to Standards

    For the reasons stated in the preamble, OSHA proposes to amend 29 
CFR part 1910 as follows:

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

Subpart Z--Toxic and Hazardous Substances

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

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


[[Page 20001]]


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

0
2. Amend Sec.  1910.1024 as follows:
0
a. Revise the definition of ``Beryllium work area'' in paragraph (b);
0
b. Add definitions for ``Contaminated with beryllium and beryllium-
contaminated'' and ``Dermal contact with beryllium'' in alphabetical 
order in paragraph (b);
0
c. Revise the definition of ``Emergency'' in paragraph (b);
0
d. Revise paragraph (f)(2);
0
e. Revise paragraph (h)(3)(ii);
0
f. Revise paragraphs (i)(3)(i)(B), (i)(3)(ii)(B), (i)(4)(i) and (ii); 
and
0
g. Revise paragraphs (j)(1)(i), (j)(2)(i) and (ii), and (j)(3).
    The revisions and additions read as follows:


Sec.  1910.1024  Beryllium.

* * * * *
    (b) * * *
    Beryllium work area means any work area:
    (i) Containing a process or operation that can release beryllium 
and that involves material that contains at least 0.1 percent beryllium 
by weight; and
    (ii) Where employees are, or can reasonably be expected to be, 
exposed to airborne beryllium at any level or where there is the 
potential for dermal contact with beryllium.
* * * * *
    Contaminated with beryllium and beryllium-contaminated mean 
contaminated with dust, fumes, mists, or solutions containing beryllium 
in concentrations greater than or equal to 0.1 percent by weight.
    Dermal contact with beryllium means skin exposure to:
    (i) Soluble beryllium compounds containing beryllium in 
concentrations greater than or equal to 0.1 percent by weight;
    (ii) Solutions containing beryllium in concentrations greater than 
or equal to 0.1 percent by weight; or
    (iii) Dust, fumes, or mists containing beryllium in concentrations 
greater than or equal to 0.1 percent by weight.
* * * * *
    Emergency means any occurrence such as, but not limited to, 
equipment failure, rupture of containers, or failure of control 
equipment, which may or does result in an uncontrolled and unintended 
release of airborne beryllium that presents a significant hazard.
* * * * *
    (f) * * *
    (2) Engineering and work practice controls. (i) The employer must 
use engineering and work practice controls to reduce and maintain 
employee airborne exposure to beryllium to or below the PEL and STEL, 
unless the employer can demonstrate that such controls are not 
feasible. Wherever the employer demonstrates that it is not feasible to 
reduce airborne exposure to or below the PELs with engineering and work 
practice controls, the employer must implement and maintain engineering 
and work practice controls to reduce airborne exposure to the lowest 
levels feasible and supplement these controls using respiratory 
protection in accordance with paragraph (g) of this standard.
    (ii) For each operation in a beryllium work area that releases 
airborne beryllium, the employer must ensure that at least one of the 
following is in place to reduce airborne exposure:
    (A) Material and/or process substitution;
    (B) Isolation, such as ventilated partial or full enclosures;
    (C) Local exhaust ventilation, such as at the points of operation, 
material handling, and transfer; or
    (D) Process control, such as wet methods and automation.
    (iii) An employer is exempt from using the controls listed in 
paragraph (f)(2)(ii) of this standard to the extent that:
    (A) The employer can establish that such controls are not feasible; 
or
    (B) The employer can demonstrate that airborne exposure is below 
the action level, using no fewer than two representative personal 
breathing zone samples taken at least 7 days apart, for each affected 
operation.
* * * * *
    (h) * * *
    (3) * * *
    (ii) The employer must ensure that beryllium is not removed from 
beryllium-contaminated personal protective clothing and equipment by 
blowing, shaking, or any other means that disperses beryllium into the 
air.
* * * * *
    (i) * * *
    (3) * * *
    (i) * * *
    (B) Employee's hair or body parts other than hands, face, and neck 
can reasonably be expected to become contaminated with beryllium.
    (ii) * * *
    (B) The employee's hair or body parts other than hands, face, and 
neck could reasonably have become contaminated with beryllium.
    (4) * * *
    (i) Beryllium-contaminated surfaces in eating and drinking areas 
are as free as practicable of beryllium;
    (ii) No employees enter any eating or drinking area with beryllium-
contaminated personal protective clothing or equipment unless, prior to 
entry, surface beryllium has been removed from the clothing or 
equipment by methods that do not disperse beryllium into the air or 
onto an employee's body; and
* * * * *
    (j) * * *
    (1) * * *
    (i) The employer must maintain all surfaces in beryllium work areas 
and regulated areas as free as practicable of beryllium and in 
accordance with the written exposure control plan required under 
paragraph (f)(1) and the cleaning methods required under paragraph 
(j)(2) of this standard; and
* * * * *
    (2) * * *
    (i) The employer must ensure that surfaces in beryllium work areas 
and regulated areas are cleaned by HEPA-filtered vacuuming or other 
methods that minimize the likelihood and level of airborne exposure.
    (ii) The employer must not allow dry sweeping or brushing for 
cleaning surfaces in beryllium work areas or regulated areas unless 
HEPA-filtered vacuuming or other methods that minimize the likelihood 
and level of airborne exposure are not safe or effective.
* * * * *
    (3) Disposal and recycling. For materials that contain beryllium in 
concentrations of 0.1 percent by weight or more or are contaminated 
with beryllium, the employer must ensure that:
    (i) Materials designated for disposal are disposed of in sealed, 
impermeable enclosures, such as bags or containers, that are labeled in 
accordance with paragraph (m)(3) of this standard; and
    (ii) Materials designated for recycling are cleaned to be as free 
as practicable of surface beryllium contamination and labeled in 
accordance with paragraph (m)(3) of this standard, or place in sealed, 
impermeable enclosures, such as bags or containers, that are labeled in 
accordance with paragraph (m)(3) of this standard.
* * * * *
[FR Doc. 2018-09307 Filed 5-4-18; 8:45 am]
 BILLING CODE 4510-26-P