[Federal Register Volume 83, Number 106 (Friday, June 1, 2018)]
[Proposed Rules]
[Pages 25536-25543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11643]



[[Page 25535]]

Vol. 83

Friday,

No. 106

June 1, 2018

Part III





Department of Labor





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Occupational Safety and Health Administration





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29 CFR Part 1910





Limited Extension of Select Compliance Dates for Occupational Exposure 
to Beryllium in General Industry; Proposed Rules

Federal Register / Vol. 83 , No. 106 / Friday, June 1, 2018 / 
Proposed Rules

[[Page 25536]]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket ID-OSHA-H005C-2006-0870]
RIN 1218-AB76


Limited Extension of Select Compliance Dates for Occupational 
Exposure to Beryllium in General Industry

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

ACTION: Proposed rule.

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SUMMARY: OSHA is proposing a nine-month extension of the compliance 
date for certain ancillary requirements of the general industry 
beryllium standard (from March 12, 2018 to December 12, 2018). This 
proposal would not extend the compliance date for the permissible 
exposure limits (PELs), exposure assessment, respiratory protection, 
medical surveillance, or medical removal protection provisions, or for 
any provisions for which the standard already establishes compliance 
dates in 2019 and 2020. OSHA has preliminarily determined that this 
proposal will maintain essential safety and health protections for 
workers while OSHA prepares an NPRM to clarify specific provisions of 
the beryllium standard that would both maintain the standard's worker 
safety and health protections and address employers' compliance 
burdens.

DATES: Submit comments to this proposed rule, hearing requests, and 
other information by July 2, 2018. All submissions must bear a postmark 
or provide other evidence of the submission date.

ADDRESSES: Submit comments, hearing requests, and other material, 
identified by Docket No. OSHA-H005C-2006-0870, using any of the 
following methods:
    Electronically: Submit comments and attachments, as well as hearing 
requests and other information, electronically at https://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-H005C-
2006-0870), 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 https://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-H005C-2006-0870, Room N-3653, 
Occupational Safety and Health Administration, U.S. Department of 
Labor, 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-H005C-2006-0870) 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-H005C-2006-0870, Room N-3653, 
Occupational Safety and Health Administration, U.S. Department of 
Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone: 
(202) 693-2350 (TTY (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 (Limited Extension of Select Compliance Dates 
for Occupational Exposure to Beryllium in General Industry), and the 
docket number (OSHA-H005C-2006-0870). 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 https://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.
    In this preamble, OSHA cites to documents in Docket No. OSHA-H005C-
2006-0870, the docket for this rulemaking. To simplify these document 
cites, OSHA uses ``Document ID'' followed by the last four digits of 
the full docket identification number. For example, if a document's 
full docket identification number is ID-OSHA-H005C-2006-0870-1234, the 
citation used in this preamble would be Document ID 1234. The docket is 
available at https://www.regulations.gov, the Federal eRulemaking 
Portal.
    Docket: To read or download comments or other material in the 
docket, go to https://www.regulations.gov or to the OSHA Docket Office 
at the above address. The electronic docket for this proposed rule 
established at https://www.regulations.gov contains most of the 
documents in the docket. However, some information (e.g., copyrighted 
material) is not available publicly to read or download through this 
website. All submissions, including copyrighted material, are available 
for inspection at the OSHA Docket Office. Contact the OSHA Docket 
Office for assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT:
    Press inquiries: Mr. Frank Meilinger, OSHA Office of 
Communications; telephone: (202) 693-1999; email: 
[email protected].
    General information and technical inquiries: William Perry or 
Maureen Ruskin, Directorate of Standards and Guidance; telephone (202) 
693-1950; email: [email protected].
    Copies of this Federal Register document and news releases: 
Electronic copies of these documents are available at OSHA's web page 
at https://www.osha.gov.

SUPPLEMENTARY INFORMATION:

I. Explanation of Regulatory Action

A. Introduction

    OSHA is publishing this Notice of Proposed Rulemaking (NPRM) to 
propose a nine-month extension of the compliance date for certain 
requirements of the general industry beryllium standard (29 CFR 
1910.1024), which was promulgated on January 9, 2017 (82 FR 2470). The 
standard provides that the compliance date for the affected 
requirements is March 12, 2018, but on March 2, 2018, OSHA issued a 
memorandum stating that no provisions of the standard would be enforced 
until May 11, 2018. Then, on

[[Page 25537]]

May 9, 2018, OSHA issued an enforcement memorandum stating that the 
ancillary requirements that are affected by the planned NPRM will not 
be enforced until June 25, 2018. Neither memorandum was published in 
the Federal Register.
    This proposed action would revise the standard to extend the 
compliance date for the affected provisions until December 12, 2018. 
OSHA is proposing to extend the compliance date for select ancillary 
requirements of the general industry standard, but this proposal would 
not extend the compliance date for PELs, exposure assessment, 
respiratory protection, medical surveillance, or medical removal 
protection provisions, or for any provisions for which the standard 
already establishes compliance dates in 2019 and 2020. It also would 
not affect the applicability of the scope and application paragraph or 
the definitions, except to allow employers to comply with the 
definitions of ``CBD diagnostic center,'' ``chronic beryllium 
disease,'' and ``confirmed positive'' that will be proposed in the 
later substantive rulemaking NPRM (Document ID 2156).\1\ As explained 
in more detail in the following sections, OSHA believes the proposed 
action is necessary to provide sufficient time for preparation and 
publication of a planned NPRM that will affect the provisions of the 
rule covered by this proposed extension.
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    \1\ CBD is the acronym for chronic beryllium disease.
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    As described in Section I.D, Explanation of Proposed Action and 
Request for Comment, OSHA is planning to propose revisions to the 
beryllium standard in accordance with a settlement agreement entered 
into with stakeholders on April 24, 2018 (Document ID 2156). The 
upcoming rulemaking will affect select ancillary provisions in the 
standard. OSHA is concerned that beginning enforcement of those 
provisions before publication of the substantive proposal may result in 
employer confusion or improper implementation of the relevant 
provisions of the rule.

B. Summary of Economic Impact

    This proposed rule is not economically significant. OSHA is 
revising 29 CFR 1910.1024(o)(2) to extend the deadline for compliance 
with certain provisions of the beryllium rule for nine months. 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 in the ``Agency Determinations'' section of this preamble. 
OSHA has estimated that, at a 3 percent discount rate over 10 years, 
there are net annual cost savings of $0.76 million per year for this 
proposed rule; at a discount rate of 7 percent there are net annual 
cost savings of $1.73 million per year. When the Department uses a 
perpetual time horizon, the annualized cost savings of the proposed 
rule is $1.65 million with 7 percent discounting.

C. Regulatory Background

    OSHA published an NPRM for occupational exposure to beryllium in 
the Federal Register on August 7, 2015 (80 FR 47566). In the NPRM, the 
Agency made a preliminary determination that employees exposed to 
beryllium and beryllium compounds at the previous PEL faced a 
significant risk to their health and that promulgating the proposed 
standard would substantially reduce that risk. The NPRM invited 
interested stakeholders to submit comments on a variety of issues.
    OSHA held a public hearing in Washington, DC, on March 21 and 22, 
2016. The Agency heard testimony from several organizations, including 
public health groups, industry representatives, and labor unions. 
Following the hearing, participants had an opportunity to submit 
additional evidence and data, as well as final briefs, arguments, and 
summations (Document ID 1756, Tr. 326).
    On January 9, 2017, after considering the entire record, OSHA 
issued a final rule with three separate standards for general industry, 
shipyards, and construction, in order to tailor requirements to the 
circumstances found in these sectors. See 82 FR 2470 (January 9, 2017). 
The final beryllium standards established new PELs of 0.2 [mu]g/m\3\ as 
an 8-hour time-weighted average (TWA) and 2.0 [mu]g/m\3\ as a short-
term exposure limit (STEL) determined over a sampling period of 15 
minutes. The standards also established other provisions to protect 
employees, such as requirements for exposure assessment, methods for 
controlling exposure, respiratory protection, personal protective 
clothing and equipment, housekeeping, medical surveillance, medical 
removal, hazard communication, and recordkeeping. The general industry 
standard established a compliance date (when obligations of the 
standard commence and become enforceable) of March 12, 2018, for all 
obligations except change rooms and showers required by paragraph (i) 
(compliance date of March 11, 2019) and engineering controls required 
by paragraph (f) (compliance date of March 10, 2020). See 29 CFR 
1910.1024(o)(2).
    Following promulgation of the final standard, representatives of 
general industry employers, including Materion Corporation, along with 
representatives of the coal-fired power industry and the aluminum 
production industry, challenged the rule in federal court and 
approached OSHA with questions and concerns about some of the 
provisions in the final rule.
    In response to the stakeholder feedback, and to resolve the pending 
litigation, OSHA is planning to propose revisions to certain provisions 
in the general industry standard and rely on its de minimis policy 
while the rulemaking is pending so that employers may comply with the 
proposed provisions without risk of a citation.\2\ The revisions OSHA 
plans to propose are generally designed to clarify the standard in 
response to stakeholder questions or to simplify compliance, while in 
all cases maintaining a high degree of protection from the adverse 
health effects of beryllium exposure (Document ID 2156). For example, 
the proposed changes include modifying certain definitions to clarify 
the meaning of the terms, including a list of operations that trigger 
the requirement for beryllium work areas so that employers understand 
when they must set up a beryllium work area, and modifying the disposal 
and recycling provisions to clarify that items designated for disposal 
must be in containers that prevent the release of beryllium under 
ordinary conditions rather than sealed, impermeable containers. The 
proposed compliance date extension will give OSHA time to prepare and 
publish the planned NPRM to amend the standard before employers must 
comply with the affected provisions of the rule so that, until any such 
changes are finalized, employers may comply with the proposed 
provisions without risk of a citation.
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    \2\ The OSH Act allows the Secretary of Labor to prescribe 
procedures to issue notices instead of citations for ``de minimis 
violations'' that have no direct or immediate relationship to safety 
or health. 29 U.S.C. 658(a). The Secretary's de minimis policy is 
set forth in its Field Operations Manual (FOM), available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-160.pdf. Under the de 
minimis policy, compliance ``with a proposed OSHA standard or 
amendment or a consensus standard rather than with the standard in 
effect at the time of the inspection and the employer's action 
clearly provides equal or greater employee protection'' is a de 
minimis condition. De minimis conditions result in no citation or 
penalties. See 29 CFR 1903.15 (``Penalties shall not be proposed for 
de minimis violations which have no direct or immediate relationship 
to safety or health.''); https://www.osha.gov/Publications/osha3000.pdf.

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D. Explanation of Proposed Action and Request for Comment

    OSHA is proposing to revise the ``Dates'' provision of the 
beryllium standard (at 29 CFR 1910.1024(o)(2)) to extend the deadline 
for compliance with most of the ancillary requirements of the standard 
from March 12, 2018, to December 12, 2018. As previously discussed, 
this proposed action would provide time for preparation and publication 
of a planned NPRM that will impact the provisions covered by this 
extension so that employers may comply with the proposed provisions 
without risk of a citation (Document ID 2156).
    OSHA will be proposing modifications to ancillary provisions of the 
beryllium standard in response to stakeholder questions and concerns. 
These concerns were raised during lengthy settlement discussions among 
OSHA, the United Steelworkers of America (the union representing the 
largest proportion of beryllium-exposed workers), Materion Corporation 
(the leading producer of beryllium and beryllium products), some of 
Materion's customers, and the National Association of Manufacturers 
(Document ID 2156). In addition to agreeing on the proposed revisions, 
the parties agreed that if OSHA was not able to finalize the 
substantive NPRM before December 12, 2018, compliance with the 
beryllium standard as modified by the proposal would be accepted as 
compliance with the standard under OSHA's de minimis policy (Document 
ID 2156).
    The revisions OSHA plans to propose are primarily clarifying or 
simplifying in nature (Document ID 2156). They are designed to enhance 
worker protections by ensuring that the rule is well-understood and 
compliance is simple and straightforward. All of the provisions covered 
by this extension will be affected by the planned rulemaking.
    OSHA has preliminarily determined that it would be undesirable, for 
both the Agency and the regulated community, to begin enforcement of 
the ancillary provisions of the standard that will be affected by the 
upcoming rulemaking. Enforcing compliance with the relevant ancillary 
requirements, as currently written, before publishing the agreed-upon 
proposal, is likely to result in employers taking unnecessary measures 
to comply with provisions that OSHA intends to clarify. This proposed 
compliance date extension will give OSHA time to prepare and publish 
the planned substantive NPRM to amend the standard before employers 
must comply with the affected provisions of the rule, at which point 
OSHA may rely on its de minimis policy and employers may comply with 
the proposed provisions without risk of a citation.
    Therefore, OSHA is proposing this short extension of the compliance 
date for the following provisions: Beryllium work areas and regulated 
areas (paragraph (e)), written exposure control plans (paragraph 
(f)(1)), personal protective clothing and equipment (paragraph (h)), 
hygiene areas and practices (paragraph (i) except for change rooms and 
showers; see below), housekeeping (paragraph (j)), communication of 
hazards (paragraph (m)), and recordkeeping (paragraph (n)).
    Not every provision in the standard will be covered by the proposed 
extension. First, the proposal will not affect the compliance date for 
the updated TWA PEL and STEL (paragraph (c)), exposure assessment 
(paragraph (d)), or respiratory protection (paragraph (g)). These 
paragraphs are not affected by the regulatory revisions OSHA plans to 
propose, and are essential to ensure employers are controlling worker 
exposures to beryllium while OSHA works on the rulemaking to amend 
other aspects of the standard. The compliance dates for paragraphs (c), 
(d), and (g) are unaffected by this proposal.
    Second, the proposal will not affect the compliance date for 
medical surveillance (paragraph (k)) or medical removal protection 
(paragraph (l)). Although OSHA plans to propose clarifications to 
certain definitions pertaining to paragraph (k) (Medical Surveillance), 
OSHA has preliminarily determined that the proposed clarifications 
would not substantially affect the actions that employers must take to 
comply with the medical surveillance provisions of the beryllium 
standard (Document ID 2156).\3\ OSHA has also preliminarily determined 
that access to medical surveillance should not be delayed because, as 
explained in the preamble to the 2017 beryllium rule, the early 
identification of beryllium-related health effects can contribute to 
effective management of early signs and symptoms (82 FR at 2546, 2720-
2721; Document ID 1756, Tr. 111, 132). Therefore, the compliance date 
for medical surveillance (paragraph (k)) is unaffected by this 
proposal. Until the substantive rulemaking is proposed, however, 
employers may comply with the medical surveillance provisions as 
clarified by the definitions of ``CBD diagnostic center,'' ``chronic 
beryllium disease,'' and ``confirmed positive'' that OSHA has agreed to 
propose in the substantive rulemaking NPRM, which are available in the 
docket (Document ID 2156) and in OSHA's interim enforcement guidance on 
the OSHA website (https://www.osha.gov/laws-regs/standardinterpretations/2018-05-09). OSHA has also determined, 
preliminarily, that this compliance date extension should have no 
effect on medical removal protection (paragraph (l)), because 
compliance with medical removal protection is not directly affected by 
the changes OSHA is planning to propose to the rule (Document ID 2156).
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    \3\ OSHA plans to propose revisions to the definition of ``CBD 
diagnostic center'' to prevent confusion about staffing requirements 
for CBD diagnostic centers. OSHA plans to propose a change to the 
definition of ``chronic beryllium disease'' to narrow the scope and 
avoid confusion with other lung diseases. OSHA also plans to propose 
a change to the definition of ``confirmed positive'' to clarify that 
the results must be obtained within the 30 day follow-up test period 
required after a first abnormal or borderline BeLPT test result 
(Document ID 2156).
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    Third, the proposal will not affect paragraph (a), Scope and 
application. It will also not affect paragraph (b), Definitions, except 
as described above to allow employers to comply with the definitions of 
``CBD diagnostic center,'' ``chronic beryllium disease,'' and 
``confirmed positive'' that are included in the settlement agreement 
and will be proposed in the substantive rulemaking NPRM (Document ID 
2156).
    Finally, the compliance date for change rooms and showers required 
by paragraph (i) of the standard will remain March 11, 2019 (29 CFR 
1910.1024(o)(2)(i)), and the compliance date to implement engineering 
controls required by paragraph (f) of the standard will remain March 
10, 2020 (29 CFR 1910.1024(o)(2)(ii)). OSHA expects to publish the 
planned NPRM well in advance of these compliance dates.
    Although OSHA is proposing to extend the compliance date for 
paragraph (m), Communication of Hazards--which includes specific 
labeling requirements--manufacturers, importers, and employers are 
still obligated to label hazardous chemicals containing beryllium, 
ensure that safety data sheets are readily available, and train workers 
on the hazards of beryllium in accordance with the Hazard Communication 
Standard (HCS), 29 CFR 1910.1200. OSHA encourages employers to review 
their hazard communication program, employee training, and other hazard 
communication practices (such as workplace labeling) to ensure 
continued compliance with the HCS. Also, while OSHA is proposing to 
extend the compliance date for the recordkeeping requirements of 
paragraph (n), OSHA expects employers to continue to comply with 29 CFR 
1910.1020 (Access

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to Employee Exposure and Medical Records).
    OSHA seeks comment on this proposal to revise paragraph (o) of the 
general industry beryllium standard to extend the compliance date for 
select ancillary provisions. OSHA welcomes comment on both the duration 
and scope of the proposed compliance date extension. OSHA encourages 
commenters to include a rationale for any concerns raised with this 
proposal, as well as for alternatives that they propose. OSHA also 
requests comment on the ``Agency Determinations'' section that follows, 
including the preliminary economic analysis and other regulatory 
impacts of this rule on the regulated community. Please note that 
comments on the changes OSHA plans to propose to the ancillary 
requirements of the general industry standard should be reserved for 
submission during the public comment period for that NPRM.

II. Agency Determinations

A. Preliminary Economic Analysis and Regulatory Flexibility 
Certification

    Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 
U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 
1532(a)) require that OSHA estimate the benefits, costs, and net 
benefits of regulations, and analyze the impacts of certain rules that 
OSHA promulgates. Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility.
    This proposed rule is not an ``economically significant regulatory 
action'' under Executive Order 12866 or UMRA, or a ``major rule'' under 
the Congressional Review Act (5 U.S.C. 801 et seq.). Neither the 
benefits nor the costs of this proposal would exceed $100 million in 
any given year. This proposed rule to extend the compliance date for 
certain ancillary provisions in the beryllium standard would result in 
cost savings. Cost savings arise in this context because a delay in 
incurred costs for employers would allow them to invest the funds (and 
earn an expected return at the going interest rate) that would 
otherwise have been spent to comply with the beryllium standard.
    At a discount rate of 3 percent, this proposed compliance date 
extension would yield annualized cost savings of $0.76 million per year 
for 10 years. At a discount rate of 7 percent, this proposal would 
yield an annualized cost savings of $1.73 million per year for 10 
years. When the Department uses a perpetual time horizon to allow for 
cost comparisons under Executive Order 13771 (82 FR 9339, Jan. 30, 
2017), the annualized cost savings of this proposed compliance date 
extension is $1.65 million at a discount rate of 7 percent.
1. Changes to the Baseline: Updating to 2017 Dollars and Removing 
Ramiliarization Costs; Discussion of Overhead Costs
    More than one year has elapsed since promulgation of the beryllium 
standard on January 9, 2017, so OSHA has updated the projected costs 
for general industry contained in the final economic analysis (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. Additionally, although familiarization 
costs were included in the cost estimates developed in the beryllium 
FEA, OSHA expects that those costs have already been incurred by 
affected employers, and is excluding them from its analysis of the cost 
savings associated with the proposed extension of compliance dates. 
Thus, baseline costs for this preliminary economic analysis (PEA) are 
the projected costs from the 2017 FEA, updated to 2017 dollars, less 
familiarization costs.
    OSHA notes that it did not include an overhead labor cost in the 
2017 FEA, and has not accounted for such costs in this PEA. There is 
not one broadly accepted overhead rate, and the use of overhead to 
estimate the marginal costs of labor raises a number of issues that 
should be addressed before applying overhead costs to analyze the cost 
implications of any specific regulation. There are several ways to look 
at the cost elements that fit the definition of overhead, and there is 
a range of overhead estimates currently used within the federal 
government--for example, the Environmental Protection Agency has used 
17 percent,\4\ and government contractors have been reported to use an 
average of 77 percent.\5\ Some overhead costs, such as advertising and 
marketing, may be more closely correlated with output than with labor. 
Other overhead costs vary with the number of new employees. For 
example, rent or payroll processing costs may change little with the 
addition of 1 employee in a 500-employee firm, but may change 
substantially with the addition of 100 employees. If an employer is 
able to rearrange current employees' duties to implement a rule, then 
the marginal share of overhead costs, such as rent, insurance, and 
major office equipment (e.g., computers, printers, copiers), would be 
very difficult to measure with accuracy.
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    \4\ 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 (EPA), 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.
    \5\ 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.
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    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 $0.82 million per year, at a discount rate of 3 
percent, or to approximately $1.87 million per year, at a discount rate 
of 7 percent.\6\ The addition of 17 percent overhead on base wages 
would therefore increase cost savings by approximately 8 percent above 
the primary estimate at either discount rate.
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    \6\ OSHA used an overhead rate of 17 percent on base wages in a 
sensitivity analysis in the FEA (OSHA-2010-0034-4247, p. VII-65) in 
support of the March 25, 2016 final respirable crystalline silica 
standards (81 FR 16286) and in the PEA in support of the June 27, 
2017 beryllium proposal for the construction and shipyard sectors 
(82 FR 29201).
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2. Changes to the Standard: Nine-Month Extension of the Compliance Date 
for Some Ancillary Provisions
    The beryllium standard went into effect on May 20, 2017, with most 
compliance obligations beginning on March 12, 2018. OSHA is proposing 
to extend the compliance date for specific provisions until December 
12, 2018. The compliance dates for the updated PELs, exposure 
assessment, respiratory protection, medical surveillance, and medical 
removal protection requirements, and for some other provisions for 
which the standard already establishes compliance dates in 2019 and 
2020, would not change as a result of this proposal. The applicability 
of the scope and application paragraph and the definitions would also 
not change as a result of this proposal, except to allow employers to 
comply with the definitions of ``CBD diagnostic center,'' ``chronic 
beryllium disease,'' and ``confirmed positive'' that will be

[[Page 25540]]

proposed in the later substantive rulemaking NPRM (Document ID 2156). 
As discussed previously, the purpose of this proposal is to provide 
time for OSHA to issue a planned NPRM that would affect the parts of 
the standard that are covered by this proposed compliance date 
extension before that compliance date is reached, so that OSHA may rely 
on its de minimis policy and employers may comply with the proposed 
provisions without risk of a citation.
    OSHA estimated cost savings of the proposed extension relative to 
baseline costs, where baseline costs reflect the costs of compliance 
without the proposed change to the compliance date provision. OSHA 
calculated the cost savings by lagging the first-year costs for the 
affected provisions by nine months and then calculating the present 
value of the delayed costs over the 10 years following the proposed 
compliance date. Annualizing the present value of cost savings over ten 
years, the result is an annualized cost savings of $0.76 million per 
year at a discount rate of 3 percent, or $1.73 million per year at a 
discount rate of 7 percent. When the Department uses a perpetual time 
horizon to allow for cost comparisons under Executive Order 13771, the 
annualized cost savings of this proposed compliance date extension is 
$1.65 million at a discount rate of 7 percent.
    The undiscounted cost savings by provision and year are presented 
below in Table 1. As shown in Table 1, and described elsewhere in this 
notice, the cost savings described in this PEA reflect savings only for 
provisions covered by the proposed compliance date extension. OSHA 
estimated no cost savings for the PELs, exposure assessment, 
respiratory protection, medical surveillance, or medical removal 
protection provisions (as they are not covered by the proposed 
extension), or for any provisions for which the rule already 
establishes compliance dates in 2019 (change rooms/showers) or 2020 
(engineering controls).\7\ The cost savings by year and discount rate 
are shown below in Table 2.
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    \7\ Note that the labor costs associated with time spent 
changing clothes are generally triggered by wearing personal 
protective equipment, as required by paragraph (h) of the beryllium 
standard. OSHA is proposing to extend the compliance date for 
paragraph (h). If the proposal is adopted, the rule would not 
require employers to incur the labor costs associated with changing 
time for personal protective equipment until December 12, 2018, so 
OSHA is generally accounting for those cost savings in this PEA. 
OSHA has not accounted for any cost savings related to the use of 
head covers, however. Head covers may be used to prevent 
contamination of employees' hair, potentially precluding the need 
for showers under paragraph (i)(3) of the standard. Because this 
proposal would not extend the compliance date for showers, OSHA has 
not accounted for head covers for purposes of estimating the cost 
savings associated with this proposal.
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3. Economic and Technological Feasibility
    In the FEA for the beryllium standard, OSHA concluded that the rule 
was technologically feasible. OSHA has preliminarily determined that 
this proposal is also technologically feasible because it does not 
change any of the rule's substantive requirements, and, if adopted, 
would simply give employers more time to comply with some of the rule's 
ancillary requirements. Furthermore, OSHA previously concluded that the 
beryllium standard was economically feasible. As this proposal does not 
impose any new substantive requirements, and results in cost savings, 
OSHA has preliminarily concluded that the proposal is also economically 
feasible.
4. Effects on Benefits
    The planned rulemaking to revise the general industry beryllium 
standard is intended to be responsive to questions and concerns 
expressed by stakeholders regarding ancillary provisions of the rule. 
Safety and health programs can be inefficacious if employers and other 
stakeholders are unclear about OSHA requirements. Hence, by addressing 
stakeholder questions and concerns, the planned rulemaking will make it 
more likely that the regulated community will realize the full benefits 
of the rule, as estimated in the 2017 beryllium FEA. Although it is not 
possible to quantify the effect of stakeholder uncertainty on the 
projected benefits of the rule, OSHA preliminarily believes that the 
short term loss of benefits associated with this proposed extension of 
initial compliance dates will be more than offset in the long term by 
the benefits that will be realized as a result of the Agency's effort 
to provide additional clarity in the rule. OSHA has preliminarily 
determined that this proposal will maintain essential safety and health 
protections for workers.
5. Certification of No Significant Impact on a Substantial Number of 
Small Entities
    This proposal will result in cost savings for affected employers, 
and those savings fall below levels that could be said to have a 
significant positive economic impact on a substantial number of small 
entities.\8\ Therefore, OSHA certifies that this proposed standard 
would not have a significant impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    \8\ OSHA investigated whether the projected cost savings would 
exceed 1 percent of revenues or 5 percent of profits for small 
entities and very small entities for every industry. To determine if 
this was the case, OSHA returned to its original regulatory 
flexibility analysis (in the 2017 FEA) for small entities and very 
small entities. OSHA found that the cost savings of this 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.
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                             Table 2--Cost Savings Due to Compliance Date Extension
----------------------------------------------------------------------------------------------------------------
                                                                   Undiscounted     Discounted      Discounted
                      Year                               t         costs by year     costs--3%       costs--7%
----------------------------------------------------------------------------------------------------------------
                                                    Baseline
----------------------------------------------------------------------------------------------------------------
1...............................................            1.00     $53,861,070     $52,292,301     $50,337,449
2...............................................            2.00      31,965,865      30,130,893      27,920,224
3...............................................            3.00      31,965,865      29,253,295      26,093,668
4...............................................            4.00      31,965,865      28,401,257      24,386,605
5...............................................            5.00      31,965,865      27,574,036      22,791,220
6...............................................            6.00      31,965,865      26,770,909      21,300,205
7...............................................            7.00      31,965,865      25,991,173      19,906,734
8...............................................            8.00      31,965,865      25,234,149      18,604,424
9...............................................            9.00      31,965,865      24,499,174      17,387,312
10..............................................           10.00      31,965,865      23,785,605      16,249,825
    Total.......................................  ..............  ..............     293,932,792     244,977,667
    Annualized--10 Years........................  ..............  ..............      34,457,890      34,879,308
----------------------------------------------------------------------------------------------------------------
                                              Discounting Option 1
----------------------------------------------------------------------------------------------------------------
1...............................................            1.75      53,861,070      51,145,783      47,846,852
2...............................................            2.75      31,965,865      29,470,268      26,538,787
3...............................................            3.75      31,965,865      28,611,911      24,802,605
4...............................................            4.75      31,965,865      27,778,554      23,180,004
5...............................................            5.75      31,965,865      26,969,470      21,663,556
6...............................................            6.75      31,965,865      26,183,952      20,246,314
7...............................................            7.75      31,965,865      25,421,312      18,921,788
8...............................................            8.75      31,965,865      24,680,886      17,683,914
9...............................................            9.75      31,965,865      23,962,025      16,527,023
10..............................................           10.75      31,965,865      23,264,102      15,445,816
    Total.......................................  ..............  ..............     287,488,264     232,856,658
    Annualized--10 Years........................  ..............  ..............      33,702,395      33,153,550
    Difference from Baseline....................  ..............  ..............        -755,495      -1,725,759
----------------------------------------------------------------------------------------------------------------

B. Paperwork Reduction Act

    This NPRM does not propose changes to the information collections 
already approved by Office of Management and Budget (OMB). OMB approved 
the information collection requirements for the general industry 
beryllium standard under OMB Control Number 1218-0267, with an 
expiration date of April 30, 2020.

C. Federalism

    OSHA reviewed this proposed rule in accordance with Executive Order 
13132 on Federalism (64 FR 43255, (Aug. 10, 1999)), which requires that 
Federal agencies, to the extent possible, refrain from limiting state 
policy options, consult with states prior to taking any actions that 
would restrict state policy options, and take such actions only when 
clear constitutional authority exists and the problem is national in 
scope. Executive Order 13132 provides for preemption of state law only 
with the expressed consent of Congress. Federal agencies must limit any 
such preemption to the extent possible.
    Under Section 18 of the Occupational Safety and Health Act of 1970 
(OSH Act; 29 U.S.C. 651 et seq.), Congress expressly provides that 
states and U.S. territories may adopt, with Federal approval, a plan 
for the development and enforcement of occupational safety and health 
standards. OSHA refers to such states and territories as ``State Plan 
States.'' Occupational safety and health standards developed by State 
Plan States must be at least as effective in providing safe and 
healthful employment and places of employment as the Federal standards. 
29 U.S.C. 667. Subject to these requirements, State Plan States are 
free to develop and enforce under state law their own requirements for 
safety and health standards.
    OSHA previously concluded from its analysis that promulgation of 
the beryllium standard complies with Executive Order 13132 (82 FR at 
2633). In states without an OSHA-approved State Plan, any standard 
developed from this proposed rule would limit state policy options in 
the same manner as every standard promulgated by OSHA. For State Plan 
States, Section 18 of the OSH Act, as noted in the previous paragraph, 
permits State Plan States to develop and enforce their own beryllium 
standards provided these requirements are at least as effective in 
providing safe and healthful employment and places of employment as the 
requirements specified in this proposal.

D. State Plans

    When Federal OSHA promulgates a new standard or more stringent 
amendment to an existing standard, State Plans must amend their 
standards to reflect the new standard or amendment, or show OSHA why 
such action is unnecessary, e.g., because an existing state standard 
covering this area is ``at least as effective'' as the new Federal 
standard or amendment (29 CFR 1953.5(a)). The state standard must be at 
least as effective as the final Federal rule. State Plans must adopt 
the Federal standard or complete their own standard within six months 
of the promulgation date of the final Federal rule. When OSHA 
promulgates a new standard or amendment that does not impose additional 
or more stringent requirements than an existing standard, State Plans 
do not have to amend their standards, although OSHA may encourage them 
to do so. The 21 states and 1 U.S. territory with OSHA-approved 
occupational safety and health plans covering private sector and state 
and local government 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.

[[Page 25543]]

Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin 
Islands have OSHA-approved State Plans that apply to state and local 
government employees only.
    The proposed amendments to OSHA's beryllium standard would not 
impose any new requirements on employers. Accordingly, State Plans 
would not have to amend their standards to extend the compliance dates 
for their beryllium rules, but they may do so within the limits of any 
extension adopted by Federal OSHA.

E. Unfunded Mandates Reform Act

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

F. Consultation and Coordination With Indian Tribal Governments

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

G. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970 (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. 654(b), 655(b). A 
safety or health standard is a standard ``which requires conditions, or 
the adoption or use of one or more practices, means, methods, 
operations, or processes, reasonably necessary or appropriate to 
provide safe or healthful employment or places of employment.'' 29 
U.S.C. 652(8). A standard is reasonably necessary or appropriate within 
the meaning of Section 652(8) 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 Department, AFL-CIO 
v. American Petroleum Institute, 448 U.S. 607 (1980). In the beryllium 
rulemaking, OSHA made such a determination with respect to beryllium 
exposure in general industry (82 FR at 2479). This proposed rule does 
not impose any new requirements on employers. Therefore, this proposal 
does not require an additional significant risk finding. See Edison 
Electric Institute v. OSHA, 849 F.2d 611, 620 (D.C. Cir. 1988).
    In addition to materially reducing a significant risk, a health 
standard must be technologically and economically feasible. United 
Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1251 (D.C. 
Cir. 1980) (OSHA must reduce risk ``as far as it c[an] within the 
limits of [technological and economic] feasibility.'') A standard is 
technologically feasible when the protective measures it requires 
already exist, when available technology can bring the protective 
measures into existence, or when that technology is reasonably likely 
to develop. See American Textile Mfrs. Institute v. OSHA, 452 U.S. 490, 
513 (1981); American Iron and Steel Institute v. OSHA, 939 F.2d 975, 
980 (D.C. Cir. 1991). And a rule is economically feasible if it does 
not ``threaten massive dislocation to, or imperil the existence of, 
[an] industry.'' United Steelworkers, 647 F.2d at 1265 (internal 
citations and quotation marks omitted). In the 2017 FEA for the 
beryllium standard, OSHA found the standard to be technologically and 
economically feasible (82 FR at 2471). This proposed rule would be 
technologically and economically feasible as well because it would not 
require employers to implement any additional protective measures and 
would not impose any additional costs on employers.

List of Subjects in 29 CFR Part 1910

    Beryllium, Occupational safety and health.

    Signed at Washington, DC, on May 25, 2018.
Loren Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

    For the reasons stated in the preamble of this proposed rule, 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 citation for subpart Z of 29 CFR part 1910 is revised 
to read as follows:

    Authority:  29 U.S.C. 653, 655, 657; Secretary of Labor's Order 
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 
(55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 
65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 
3912); 29 CFR part 1911; and 5 U.S.C. 553, as applicable.
    Section 1910.1030 also issued under Public Law 106-430, 114 
Stat. 1901.
    Section 1910.1201 also issued under 40 U.S.C. 5101 et seq.

0
2. Amend Sec.  1910.1024 by revising paragraph (o)(2) to read as 
follows:


Sec.  1910.1024  Beryllium.

* * * * *
    (o) * * *
    (2) Compliance dates. (i) Obligations contained in paragraphs (c), 
(d), (g), (k), and (l) of this standard: March 12, 2018;
    (ii) Change rooms and showers required by paragraph (i) of this 
standard: March 11, 2019;
    (iii) Engineering controls required by paragraph (f) of this 
standard: March 10, 2020; and
    (iv) All other obligations of this standard: December 12, 2018.
* * * * *
[FR Doc. 2018-11643 Filed 5-31-18; 8:45 am]
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