Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, 29182-29224 [2017-12871]

Download as PDF 29182 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Parts 1915 and 1926 [Docket No. OSHA–H005C–2006–0870] RIN 1218–AB76 Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors Occupational Safety and Health Administration (OSHA), Department of Labor. ACTION: Proposed rule; request for comments. AGENCY: The Occupational Safety and Health Administration (OSHA) proposes to revoke the ancillary provisions for the construction and the shipyard sectors that OSHA adopted on January 9, 2017 but retain the new lower permissible exposure limit (PEL) of 0.2 mg/m3 and the short term exposure limit (STEL) of 2.0 mg/m3 for each sector. OSHA will not enforce the January 9, 2017 shipyard and construction standards without further notice while this new rulemaking is underway. This proposal does not affect the general industry beryllium standard published on January 9, 2017. DATES: Written comments. Written comments, including comments on the information collection determination described in Section VII of the preamble (OMB Review under the Paperwork Reduction Act of 1995), must be submitted (postmarked, sent, or received) by August 28, 2017. Informal public hearings. The Agency will schedule an informal public hearing on the proposed rule if requested during the comment period. The location and date of the hearing, procedures for interested parties to notify the Agency of their intention to participate, and procedures for participants to submit their testimony and documentary evidence will be announced in the Federal Register if a hearing is requested. ADDRESSES: Written comments. You may submit comments, identified by Docket No. OSHA–H005C–2006–0870, by any of the following methods: Electronically: You may submit comments and attachments electronically at http:// www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow the instructions on-line for making electronic submissions. When uploading multiple attachments into Regulations.gov, please number all of mstockstill on DSK30JT082PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 your attachments because www.Regulations.gov will not automatically number the attachments. This will be very useful in identifying all attachments in the beryllium rule. For example, Attachment 1—title of your document, Attachment 2—title of your document, Attachment 3—title of your document, etc. Specific instructions for uploading documents are found in the Frequently Asked Questions portion and the commenter check list on Regulations.gov. Fax: If your submissions, including attachments, are not longer than 10 pages, you may fax them to the OSHA Docket Office at (202) 693–1648. Mail, hand delivery, express mail, messenger, or courier service: You may submit your comments to the OSHA Docket Office, Docket No. OSHA– H005C–2006–0870, Room N–3653, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, telephone (202) 693–2350 (OSHA’s TTY number is (877) 889–5627). OSHA’s Docket Office accepts deliveries (hand deliveries, express mail, and messenger/ courier service) from 10 a.m. to 3 p.m. e.t., weekdays. Instructions: All submissions must include the Agency name and the docket number for this rulemaking (Docket No. OSHA–H005C–2006–0870). All comments, including any personal information you provide, are placed in the public docket without change and may be made available online at http:// www.regulations.gov. Therefore, OSHA cautions you about submitting personal information such as Social Security numbers and birthdates. Docket: To read or download comments and materials submitted in response to this Federal Register notice, go to Docket No. OSHA–H005C–2006– 0870 at http://www.regulations.gov, or to the OSHA Docket Office at the address above. All comments and submissions are listed in the http:// www.regulations.gov index; however, some information (e.g., copyrighted material) is not publicly available to read or download through that Web site. All comments and submissions are available for inspection at the OSHA Docket Office. Electronic copies of this Federal Register document are available at http://www.regulations.gov. Copies also are available from the OSHA Office of Publications, Room N–3101, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–1888. This document, as well as news releases and other relevant information, is also available at OSHA’s Web site at http:// www.osha.gov. PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 For general information and press inquiries, contact Frank Meilinger, Director, Office of Communications, Room N–3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693–1999; email: meilinger.francis2@dol.gov. For technical inquiries, contact: William Perry or Maureen Ruskin, Directorate of Standards and Guidance, Room N–3718, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–1955 or fax (202) 693–1678; email: ruskin.maureen@dol.gov. SUPPLEMENTARY INFORMATION: The preamble to this proposed rule on occupational exposure to beryllium and beryllium compounds follows this outline: FOR FURTHER INFORMATION CONTACT: I. Executive Summary and Regulatory Issues II. Pertinent Legal Authority III. Events Leading to the Proposal IV. Technological Feasibility Summary V. Preliminary Economic Analysis VI. Economic Feasibility and Regulatory Flexibility Certification VII. OMB Review Under the Paperwork Reduction Act of 1995 VIII. Federalism IX. State-Plan States X. Unfunded Mandates Reform Act XI. Protecting Children From Environmental Health and Safety Risks XII. Environmental Impacts XIII. Consultation and Coordination With Indian Tribal Governments XIV. Public Participation XV. Summary and Explanation of the Proposal Authority and Signature Amendments to Standards I. Executive Summary and Regulatory Issues 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 timeweighted average (TWA) PEL of 0.2 mg/ m3 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—for general industry, for shipyards, and for construction. In addition to the revised PEL, the final rule established a new short-term exposure limit (STEL) of 2.0 mg/m3 over a 15-minute sampling period and an action level of 0.1 mg/m3 as an E:\FR\FM\27JNP2.SGM 27JNP2 mstockstill on DSK30JT082PROD with PROPOSALS2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules 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. On March 21, 2017 OSHA published a delay of the effective date for the final beryllium rule to May 20, 2017 in the Federal Register (82 FR 14439). This action was based on comments received on OSHA’s proposed delay of effective date for the final rule in the Federal Register (82 FR 12318). OSHA proposed this delay in accordance with the January 20, 2017 Presidential directive from the Assistant to the President and Chief of Staff, entitled ‘‘Regulatory Freeze Pending Review’’ (82 FR 8346 (1/24/17)) that directed agencies to consider further delaying the effective date for regulations beyond the initial 60-day period. After a further review of the comments received on the proposed extension, as well as a review of the applicability of existing OSHA standards, OSHA is proposing to revoke the ancillary provisions applicable to the construction and shipyard sectors, but to retain the new lower PEL of 0.2 mg/m3 and the STEL of 2.0 mg/m3 for those sectors. In the final rule, OSHA reviewed the exposure data for abrasive blasting in construction and shipyards and welding in shipyards and determined that there is a significant risk of chronic beryllium disease (CBD) and lung cancer to workers in construction and shipyards based on the exposure levels observed. Because OSHA determined that there is significant risk of material impairment of health at the new lower PEL of 0.2 mg/ m3, the Agency continues to believe that it is necessary to protect workers exposed at this level. However, OSHA is now reconsidering the need for ancillary provisions in the construction and shipyards sectors. OSHA has evidence that beryllium exposure in these sectors is limited to the following operations: Abrasive blasting in construction, abrasive blasting in shipyards, and welding in shipyards. OSHA has a number of standards already applicable to these operations, including ventilation (29 CFR 1926.57) and mechanical paint removers (29 CFR 1915.34). In addition, this proposal provides stakeholders with an additional opportunity to offer VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 comments on the protections needed for workers exposed to beryllium in the construction and shipyard sectors, including the need for the ancillary provisions in the January 9, 2017 construction and shipyard beryllium standards. This will give OSHA additional information as it further considers the January 9, 2017 final rule’s provisions for these sectors. While the new beryllium rule went into effect on May 20, 2017, compliance obligations do not begin until March 12, 2018. Moreover, OSHA will not enforce the January 9, 2017 shipyard and construction standards without further notice while this new rulemaking is underway. OSHA requests feedback on issues associated with the proposed regulatory action and requests information that would help the Agency craft the final rule. The Agency welcomes comments concerning all aspects of this proposal. However, OSHA is especially interested in responses, supported by evidence and reasons, to the following questions: 1. OSHA has proposed revoking the ancillary provisions for the construction and shipyard sectors while retaining the new (lower) PEL of 0.2 mg/m3 and STEL of 2.0 mg/m3 for those sectors. Does this provide adequate protection to the workers in construction and shipyard sectors considering the other standards that apply? Should OSHA keep any or all of the ancillary provisions of the January 9, 2017 final rule for construction and shipyards? If so, which ones? 2. In particular, what is the incremental benefit if OSHA keeps the medical surveillance requirements for construction and shipyards described in the January 9, 2017 final rule, but revokes the other ancillary provisions? Alternatively, should OSHA keep some of the medical surveillance requirements for construction and shipyards but not others? Which medical surveillance requirements are most appropriate for beryllium-exposed workers in these sectors, if any? For more information, see Regulatory Alternative #21a, PELs plus medical surveillance (lowering the PEL and requiring medical surveillance when exposed above the PEL for operations outside the scope of the proposed rule), in the 2015 NPRM (80 FR 47565 (8/7/ 15)). OSHA’s estimates of the medical surveillance costs changed between the NPRM and final rule because of a change of the medical surveillance trigger from the action level to the PEL; updated exposure data and hire rates; and revised unit costs in response to PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 29183 comments and conversion from 2010 to 2015 dollars. 3. In addition to the proposal in this notice, OSHA is considering extending the compliance dates in the January 9, 2017 final rule by a year for the construction and shipyard standards. This would give affected employers additional time to come into compliance with its requirements, which could be warranted by the uncertainty created by this proposal. In the January 9, 2017 final rule, OSHA analyzed the technological and economic feasibility of complying with the rule for the construction and shipyard sectors and found that the rule was technologically and economically feasible for these sectors. Since the changes we propose today will retain the new PELs and eliminate the ancillary provisions, these changes will not affect the feasibility findings. The technological and economic feasibility of the January 9, 2017 final rule is established in the FEA, which is summarized in Sections IV and VI of this preamble. Table I–1, which is based on the material presented in the 2016 FEA with updated assumptions, provides OSHA’s best estimate of the cost savings to shipyard and construction establishments in all affected application groups as a result of this proposal to remove all of the ancillary provision requirements in those sectors. OSHA is proposing to remove the following ancillary provisions: Exposure monitoring, regulated areas (and competent person in construction), a written exposure control plan, protective equipment and work clothing, hygiene areas and practices, housekeeping, medical surveillance, medical removal, and worker training. Note that, because OSHA is not proposing to change the January 9, 2017 PELs and STELs in this proposal, OSHA has not estimated any cost savings related to engineering controls or respirators. Note also that, although not a requirement in the January 9, 2017 beryllium standards, OSHA estimated costs there for rule familiarization. Since some employers may have already incurred familiarization costs in reviewing those published standards, OSHA views them as sunk costs and has not included them in the estimated cost savings. Furthermore, OSHA has added some modest costs in this proposal to reflect the fact that construction and shipyard employers would be expected to devote some time becoming familiar with the revocation of the January 9, 2017 ancillary provisions. E:\FR\FM\27JNP2.SGM 27JNP2 29184 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules TABLE I–1—TOTAL ANNUALIZED COST SAVINGS, BY SECTOR AND SIX-DIGIT NAICS INDUSTRY, FOR ENTITIES AFFECTED BY THE BERYLLIUM PROPOSAL; RESULTS SHOWN BY SIZE CATEGORY [3 percent discount rate, 2016 dollars] Application group/NAICS Industry All establishments Small entities (SBA-defined) Very small entities (<20 Employees) Abrasive Blasting—Construction 238320 ............................ 238990 ............................ Painting and Wall Covering Contractors ................ All Other Specialty Trade Contractors ................... $4,087,412 3,787,418 $3,445,984 2,916,925 $2,420,659 1,998,054 3,081,907 990,140 524,187 34,217 11,283 6,421 Abrasive Blasting—Shipyards 336611a .......................... Ship Building and Repairing .................................. Welding in Shipyards 336611b .......................... Ship Building and Repairing .................................. Total Construction Subtotal ...... Maritime Subtotal ............ ................................................................................. ................................................................................. 7,874,830 3,116,125 6,362,909 1,001,423 4,418,712 530,608 Total, All Industries ......... ................................................................................. 10,990,954 7,364,331 4,949,321 Notes: Figures in rows may not add to totals due to rounding. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. mstockstill on DSK30JT082PROD with PROPOSALS2 The remainder of this preamble presents the legal requirements of the Occupational Safety and Health Act (OSH Act) (Section II, Pertinent Legal Authority); a summary of the events leading to the proposal (Section III); the technological feasibility summary (Section IV); the preliminary economic analysis for the proposal (Section V); the preliminary economic feasibility findings and the regulatory flexibility certification for the proposal (Section VI); a summary of the analysis of this proposal under the Paperwork Reduction Act of 1995 (Section VII); analyses under various executive orders and a description of the implications for State-Plan States (Sections VIII–XIII); instructions for public participation (Section XIV); and the summary and explanation of OSHA’s proposal to maintain the TWA PEL of 0.2 mg/m3 and STEL of 2 mg/m3 for operations in construction and shipyards while revoking the January 9, 2017 ancillary provisions for these sectors (Section XV). II. Pertinent Legal Authority The purpose of the Occupational Safety and Health Act of 1970 (‘‘the OSH Act’’ or ‘‘the Act’’), 29 U.S.C. 651 et al., is ‘‘to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.’’ 29 U.S.C. 651(b). To achieve VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 this goal, Congress authorized the Secretary of Labor to promulgate occupational safety and health standards pursuant to notice and comment. See 29 U.S.C. 655(b). An occupational safety or health standard is a standard ‘‘which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.’’ 29 U.S.C. 652(8). The Act provides that in promulgating health standards dealing with toxic materials or harmful physical agents, such as the January 9, 2017 final rule regulating occupational exposure to beryllium, [t]he Secretary . . . shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. 29 U.S.C. 655(b)(5). The Supreme Court has held that before the Secretary can promulgate any permanent health or safety standard, he must make a threshold finding that significant risk is present and that such risk can be eliminated or lessened by a change in practices. See Industrial Union Dept., AFL–CIO v. Am. Petroleum Inst., 448 U.S. 607, 641–42 (1980) (plurality opinion) (‘‘Benzene’’). Thus, section PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 6(b)(5) of the Act requires health standards to reduce significant risk to the extent feasible. See id. The Court further observed that what constitutes ‘‘significant risk’’ is ‘‘not a mathematical straitjacket’’ and must be ‘‘based largely on policy considerations.’’ Id. at 655, 655 n.62. OSHA retains great discretion . . . under Section 3(8) [of the Act], especially in an area where scientific certainty is impossible. In the first instance, it is the agency itself that determines the existence of a ‘‘significant’’ risk . . . In making the difficult judgment as to what level of harm is unacceptable, the agency may rely on its own sound ‘‘considerations of policy’’ as well as hard factual data . . . United Steelworkers v. Marshall, 647 F.2d 1189, 1248 (D.C. Cir. 1980) (‘‘Lead I’’) (internal citations omitted). When evaluating such considerations, OSHA exercises its discretion and its ‘‘delegated power to make within certain limits decisions that Congress normally makes itself.’’ Industrial Union Dept., AFL–CIO v. Hodgson, 499 F.2d 467, 475 (D.C. Cir. 1974). Accordingly, OSHA’s discretionary authority under the Act is broad. See Lead I, 647 F.2d at 1230. Indeed, ‘‘[a] number of terms of the statute give OSHA almost unlimited discretion to devise means to achieve the congressionally mandated goal’’ of ensuring worker safety and health. Id. (citation omitted). Once OSHA makes its significant risk finding, the standard E:\FR\FM\27JNP2.SGM 27JNP2 mstockstill on DSK30JT082PROD with PROPOSALS2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules must be ‘‘reasonably necessary or appropriate’’ to reduce or eliminate that risk within the meaning of section 3(8) of the Act (29 U.S.C. 652(8)) and Benzene (448 U.S. at 642). See Bldg. and Constr. Trades Dep’t v. Brock, 838 F.2d 1258, 1269 (D.C. Cir. 1988) (‘‘Asbestos II’’). In choosing among regulatory alternatives, however, ‘‘[t]he determination that [one standard] is appropriate, as opposed to a marginally [more or less protective] standard, is a technical decision entrusted to the expertise of the agency.’’ Nat’l Mining Ass’n v. Mine Safety and Health Admin., 116 F.3d 520, 528 (D.C. Cir. 1997) (analyzing a Mine Safety and Health Administration standard under the Benzene significant risk standard). Where there is significant risk below the PEL, OSHA should use its regulatory authority to impose additional requirements on employers when those requirements will result in a greater than de minimis incremental benefit to workers’ health. See Asbestos II, 838 F.2d at 1274. The Act also authorizes the Secretary to ‘‘modify’’ or ‘‘revoke’’ any occupational safety or health standard. 29 U.S.C. 655(b). The Supreme Court has acknowledged that regulatory agencies do not establish rules of conduct to last forever, and agencies may revise their rules if supported by a reasoned analysis for the change. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). ‘‘While the removal of a regulation may not entail the monetary expenditures and other costs of enacting a new standard, and accordingly, it may be easier for an agency to justify a deregulatory action, the direction in which an agency chooses to move does not alter the standard of judicial review established by law.’’ Id. at 43. OSHA is required to set standards ‘‘on the basis of the best available evidence,’’ 29 U.S.C. 655(b)(5), and its determinations are ‘‘conclusive’’ if supported by ‘‘substantial evidence in the record considered as a whole,’’ 29 U.S.C. 655(f). As noted above, the Supreme Court, in Benzene, explained that OSHA must look to ‘‘a body of reputable scientific thought’’ in making its determinations, while noting that a reviewing court must ‘‘give OSHA some leeway where its findings must be made on the frontiers of scientific knowledge.’’ 448 U.S. at 656. When there is disputed scientific evidence in the record, OSHA must review the evidence on both sides and ‘‘reasonably resolve’’ the dispute. Pub. Citizen Health Research Grp. v. Tyson, 796 F.2d 1479, 1500 (D.C. Cir. 1986). As the D.C. Circuit has noted, where ‘‘OSHA has the VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 expertise we lack and it has exercised that expertise by carefully reviewing the scientific data,’’ a dispute within the scientific community is not occasion for the reviewing court to take sides about which view is correct. Id. OSHA standards must be both technologically and economically feasible. See Lead I, 647 F.2d at 1264. The Supreme Court has defined feasibility as ‘‘capable of being done.’’ Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509–10 (1981) (‘‘Cotton Dust’’). The courts have further clarified that a standard is technologically feasible if OSHA proves a reasonable possibility, ‘‘within the limits of the best available evidence, . . . that the typical firm will be able to develop and install engineering and work practice controls that can meet the PEL in most of its operations.’’ Lead I, 647 F.2d at 1272. With respect to economic feasibility, the courts have held that ‘‘a standard is feasible if it does not threaten massive dislocation to or imperil the existence of the industry.’’ Id. at 1265 (internal quotation marks and citations omitted). A court must examine the cost of compliance with an OSHA standard in relation to the financial health and profitability of the industry and the likely effect of such costs on unit consumer prices. . . . [T]he practical question is whether the standard threatens the competitive stability of an industry, . . . or whether any intraindustry or inter-industry discrimination in the standard might wreck such stability or lead to undue concentration. Id. (internal citations omitted). The courts have further observed that granting companies reasonable time to comply with new PELs may enhance economic feasibility. See id. Because section 6(b)(5) of the Act explicitly imposes the ‘‘to the extent feasible’’ limitation on the setting of health standards, OSHA is not permitted to use cost-benefit analysis to make its standards-setting decisions. 29 U.S.C. 655(b)(5). An OSHA standard must be cost effective, which means that the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection, but OSHA cannot choose an alternative that provides a lower level of protection because it is less costly. See Int’l Union, UAW v. OSHA, 37 F.3d 655, 668 (D.C. Cir. 1994); see also Cotton Dust, 452 U.S. at 514 n.32. Congress itself defined the basic relationship between costs and benefits, by placing the ‘‘benefit’’ of worker health above all other considerations save those making attainment of this ‘‘benefit’’ unachievable. Any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 29185 inconsistent with the command set forth in § 6(b)(5). Cotton Dust, 452 U.S. at 509. Thus, while OSHA estimates the costs and benefits of its proposed and final rules, in part to ensure compliance with requirements such as those in Executive Orders 12866 and 13771, these calculations do not form the basis for the Agency’s regulatory decisions. III. Events Leading to the Proposal The first occupational exposure limit for beryllium was set in 1949 by the Atomic Energy Commission (AEC), which required that beryllium exposure in the workplaces under its jurisdiction be limited to 2 mg/m3 as an 8-hour timeweighted average (TWA), and 25 mg/m3 as a peak exposure never to be exceeded (Document ID 1323). These exposure limits were adopted by all AEC installations handling beryllium, and were binding on all AEC contractors involved in the handling of beryllium. In 1956, the American Industrial Hygiene Association (AIHA) published a Hygienic Guide which supported the AEC exposure limits. In 1959, the American Conference of Governmental Industrial Hygienists (ACGIH®) also adopted a Threshold Limit Value (TLV®) of 2 mg/m3 as an 8-hour TWA (Document ID 0498). In 1970, the American National Standards Institute (ANSI) issued a national consensus standard for beryllium and beryllium compounds (ANSI Z37.29–1970). The standard set a permissible exposure limit (PEL) for beryllium and beryllium compounds at 2 mg/m3 as an 8-hour TWA; 5 mg/m3 as an acceptable ceiling concentration; and 25 mg/m3 as an acceptable maximum peak above the acceptable ceiling concentration for a maximum duration of 30 minutes in an 8-hour shift (Document ID 1303). In 1971, OSHA adopted, under Section 6(a) of the Occupational Safety and Health Act of 1970, and made applicable to general industry, the ANSI standard (Document ID 1303). Section 6(a) provided that in the first two years after the effective date of the Act, OSHA was to promulgate ‘‘start-up’’ standards, on an expedited basis and without public hearing or comment, based on national consensus or established Federal standards that improved employee safety or health. Pursuant to that authority, in 1971, OSHA promulgated approximately 425 PELs for air contaminants, including beryllium, derived principally from Federal standards applicable to government contractors under the Walsh-Healey Public Contracts Act, 41 U.S.C. 35, and the Contract Work Hours and Safety Standards Act (commonly E:\FR\FM\27JNP2.SGM 27JNP2 mstockstill on DSK30JT082PROD with PROPOSALS2 29186 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules known as the Construction Safety Act), 40 U.S.C. 333. The Walsh-Healey Act and Construction Safety Act standards, in turn, had been adopted primarily from ACGIH®’s TLV®s as well as several from United States of America Standards Institute (USASI) (later the American National Standards Institute (ANSI)). The National Institute for Occupational Safety and Health (NIOSH) issued a document entitled Criteria for a Recommended Standard: Occupational Exposure to Beryllium (Criteria Document) in June 1972 with Recommended Exposure Limits (RELs) of 2 mg/m3 as an 8-hour TWA and 25 mg/ m3 as an acceptable maximum peak above the acceptable ceiling concentration for a maximum duration of 30 minutes in an 8-hour shift (Document ID 1324). OSHA reviewed the findings and recommendations contained in the Criteria Document along with the AEC control requirements for beryllium exposure. OSHA also considered existing data from animal and epidemiological studies, and studies of industrial processes of beryllium extraction, refinement, fabrication, and machining. In 1975, OSHA asked NIOSH to update the evaluation of the existing data pertaining to the carcinogenic potential of beryllium. In response to OSHA’s request, the Director of NIOSH stated that, based on animal data and through all possible routes of exposure including inhalation, ‘‘beryllium in all likelihood represents a carcinogenic risk to man.’’ In October 1975, OSHA proposed a new beryllium standard for all industries based on information from studies finding that beryllium caused cancer in animals (40 FR 48814 (10/17/ 75)). Adoption of this proposal would have lowered the 8-hour TWA exposure limit from 2 mg/m3 to 1 mg/m3. In addition, the proposal included ancillary provisions for such topics as exposure monitoring, hygiene facilities, medical surveillance, and training related to the health hazards from beryllium exposure. The rulemaking was never completed. In 1977, NIOSH recommended an exposure limit of 0.5 mg/m3 and identified beryllium as a potential occupational carcinogen. In December 1998, ACGIH published a Notice of Intended Change for its beryllium exposure limit. The notice proposed a lower TLV of 0.2 mg/m3 over an 8-hour TWA based on evidence of CBD and sensitization in exposed workers. Then in 2009, ACGIH adopted a revised TLV for beryllium that lowered the 8-hour TWA to 0.05 mg/m3 (inhalable) (see Document ID 1755, Tr. 136). VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 In 1999, the Department of Energy (DOE) issued a Chronic Beryllium Disease Prevention Program (CBDPP) Final Rule for employees exposed to beryllium in its facilities (Document ID 1323). The DOE rule set an action level of 0.2 mg/m3, and adopted OSHA’s PEL of 2 mg/m3 or any more stringent PEL OSHA might adopt in the future (10 CFR 850.22; 64 FR 68873 and 68906, Dec. 8, 1999). Also in 1999, OSHA was petitioned by the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE) (Document ID 0069) and by Dr. Lee Newman and Ms. Margaret Mroz, from the National Jewish Health (NJH) (Document ID 0069), to promulgate an Emergency Temporary Standard (ETS) for beryllium in the workplace. In 2001, OSHA was petitioned for an ETS by Public Citizen Health Research Group and again by PACE (Document ID 0069). In order to promulgate an ETS, the Secretary of Labor must prove (1) that employees are exposed to grave danger from exposure to a hazard, and (2) that such an emergency standard is necessary to protect employees from such danger (29 U.S.C. 655(c) [section 6(c)]). The burden of proof is on the Department and because of the difficulty of meeting this burden, the Department usually proceeds when appropriate with ordinary notice and comment [section 6(b)] rulemaking rather than a section 6(c) ETS. Thus, instead of granting the ETS requests, OSHA instructed staff to further collect and analyze research regarding the harmful effects of beryllium in preparation for possible section 6(b) rulemaking. On November 26, 2002, OSHA published a Request for Information (RFI) for ‘‘Occupational Exposure to Beryllium’’ (Document ID 1242). The RFI contained questions on employee exposure, health effects, risk assessment, exposure assessment and monitoring methods, control measures and technological feasibility, training, medical surveillance, and impact on small business entities. In the RFI, OSHA expressed concerns about health effects such as chronic beryllium disease (CBD), lung cancer, and beryllium sensitization. OSHA pointed to studies indicating that even shortterm exposures below OSHA’s PEL of 2 mg/m3 could lead to CBD. The RFI also cited studies describing the relationship between beryllium sensitization and CBD (67 FR at 70708). In addition, OSHA stated that beryllium had been identified as a carcinogen by organizations such as NIOSH, the International Agency for Research on Cancer (IARC), and the Environmental PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 Protection Agency (EPA); and cancer had been evidenced in animal studies (67 FR at 70709). On November 15, 2007, OSHA convened a Small Business Advocacy Review Panel to review a draft proposed standard for occupational exposure to beryllium. OSHA convened this panel under Section 609(b) of the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 601 et seq.). The Panel included representatives from OSHA, the Solicitor’s Office of the Department of Labor, the Office of Advocacy within the Small Business Administration, and the Office of Information and Regulatory Affairs of the Office of Management and Budget. Small Entity Representatives (SERs) made oral and written comments on the draft rule and submitted them to the panel. The SBREFA Panel issued a report on January 15, 2008 which included the SERs’ comments. SERs expressed concerns about the impact of the ancillary requirements such as exposure monitoring and medical surveillance. Their comments addressed potential costs associated with compliance with the draft standard, and possible impacts of the standard on market conditions, among other issues. In addition, many SERs sought clarification of some of the ancillary requirements such as the meaning of ‘‘routine’’ contact or ‘‘contaminated surfaces.’’ OSHA then developed a draft preliminary beryllium health effects evaluation (Document ID 1271) and a draft preliminary beryllium risk assessment (Document ID 1272), and in 2010, OSHA hired a contractor to oversee an independent scientific peer review of these documents. The contractor identified experts familiar with beryllium health effects research and ensured that these experts had no conflict of interest or apparent bias in performing the review. The contractor selected five experts with expertise in such areas as pulmonary and occupational medicine, CBD, beryllium sensitization, the Beryllium Lymphocyte Proliferation Test (BeLPT), beryllium toxicity and carcinogenicity, and medical surveillance. Other areas of expertise included animal modeling, occupational epidemiology, biostatistics, risk and exposure assessment, exposure-response modeling, beryllium exposure assessment, industrial hygiene, and occupational/environmental health engineering. Regarding the preliminary health effects evaluation, the peer reviewers E:\FR\FM\27JNP2.SGM 27JNP2 mstockstill on DSK30JT082PROD with PROPOSALS2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules concluded that the health effect studies were described accurately and in sufficient detail, and OSHA’s conclusions based on the studies were reasonable (Document ID 1210). The reviewers agreed that the OSHA document covered the significant health endpoints related to occupational beryllium exposure. Peer reviewers considered the preliminary conclusions regarding beryllium sensitization and CBD to be reasonable and well presented in the draft health evaluation section. All reviewers agreed that the scientific evidence supports sensitization as a necessary condition in the development of CBD. In response to reviewers’ comments, OSHA made revisions to more clearly describe certain sections of the health effects evaluation. In addition, OSHA expanded its discussion regarding the BeLPT. Regarding the preliminary risk assessment, the peer reviewers were highly supportive of OSHA’s approach and major conclusions (Document ID 1210). The peer reviewers stated that the key studies were appropriate and their selection clearly explained in the document. They regarded the preliminary analysis of these studies to be reasonable and scientifically sound. The reviewers supported OSHA’s conclusion that substantial risk of sensitization and CBD were observed in facilities where the highest exposuregenerating processes had median fullshift exposures around 0.2 mg/m3 or higher, and that the greatest reduction in risk was achieved when exposures for all processes were lowered to 0.1 mg/m3 or below. In February 2012, OSHA received for consideration a draft recommended standard for beryllium (Materion and USW, 2012, Document ID 0754). This draft standard was the product of a joint effort between two stakeholders: Materion Corporation, a leading producer of beryllium and beryllium products in the United States, and the United Steelworkers, an international labor union representing workers who manufacture beryllium alloys and beryllium-containing products in a number of industries. They sought to craft an OSHA-like model beryllium standard that would have support from both labor and industry. OSHA considered this draft standard along with other information submitted during the development of the Notice of Proposed Rulemaking (NPRM) for beryllium published in 2015. As described in greater detail in the Introduction to the Summary and Explanation of the final rule, there was substantial agreement between the VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 submitted joint draft standard and the OSHA proposed standard. On August 7, 2015, OSHA published its NPRM in the Federal Register (80 FR 47565 (8/7/15)). In the NPRM, OSHA made a preliminary determination that employees exposed to beryllium and beryllium compounds at the preceding PEL face a significant risk to their health and that promulgating the proposed standard would substantially reduce that risk. The NPRM (Section XVIII) also responded to the SBREFA Panel recommendations, which OSHA carefully considered, and clarified the requirements about which SERs expressed confusion. OSHA also discussed the regulatory alternatives recommended by the SBREFA Panel in NPRM, Section XVIII, and in the PEA (Document ID 0426). The NPRM invited interested stakeholders to submit comments on a variety of issues and indicated that OSHA would schedule a public hearing upon request. Commenters submitted information and suggestions on a variety of topics. In addition, in response to a request from the Non-Ferrous Founders’ Society, OSHA scheduled an informal public hearing on the proposed rule. OSHA invited interested persons to participate by providing oral testimony and documentary evidence at the hearing. OSHA also welcomed presentation of data and documentary evidence that would provide the Agency with evidence to use in determining whether to develop a final rule. The public hearing was held in Washington, DC on March 21 and 22, 2016. Administrative Law Judge William Colwell presided over the hearing. OSHA heard testimony from several organizations, such as public health groups, the Non-Ferrous Founders’ Society, other industry representatives, and labor unions. Following the hearing, participants who had filed notices of intent to appear were allowed 30 days—until April 21, 2016—to submit additional evidence and data, and an additional 15 days— until May 6, 2016—to submit final briefs, arguments, and summations (Document ID 1756, Tr. 326). In all, the OSHA rulemaking record contained over 1,900 documents, including all the studies OSHA relied on in its preliminary health effects and risk assessment analyses, the hearing transcript and submitted testimonies, the joint Materion-USW draft proposed standard, and the pre- and post-hearing comments and briefs. In 2016, in an action parallel to OSHA’s rulemaking, DOE proposed to update its action level to 0.05 mg/m3 (81 FR 36704–36759, June 7, 2016). The PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 29187 DOE action level triggers workplace precautions and control measures such as periodic monitoring, exposure reduction or minimization, regulated areas, hygiene facilities and practices, respiratory protection, protective clothing and equipment, and warning signs (Document ID 1323; 10 CFR 850.23(b)). Unlike OSHA’s PEL, however, DOE’s selection of an action level is not required to meet statutory requirements of technological and economic feasibility. On January 9, 2017, OSHA published its final rule Occupational Exposure to Beryllium and Beryllium Compounds in the Federal Register (82:2470–2757 (1/ 9/17)). Based on the entire rulemaking record, OSHA concluded that employees exposed to beryllium and beryllium compounds at the preceding PELs were at significant risk of material impairment of health, specifically chronic beryllium disease and lung cancer. OSHA concluded that the new PEL of 0.2 mg/m3 reduced this significant risk to the maximum extent that is technologically and economically feasible. The final rule also included ancillary provisions to protect 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. In a change from the NPRM, OSHA included the construction and shipyard industries in the beryllium final rule. OSHA’s decision was based on supportive testimony and comments from stakeholders along with exposure data in the record indicating the potential for exposures above the action level for abrasive blasting using coal and copper slags (Document ID 1756; 1782; 1790). OSHA issued three separate standards for general industry, construction, and shipyards in an attempt to tailor requirements to each sector. The final rule also included other changes from the NPRM that were based on OSHA’s analysis of the record. These included changes in the scope of the standards, exposure assessment requirements, beryllium work areas, personal protective clothing and equipment, medical surveillance requirements, and compliance dates. On February 1, 2017, OSHA published a delay of the effective date for the final rule in the Federal Register (82:8901 (2/1/17)). OSHA implemented this action based on the Presidential directive as expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled ‘‘Regulatory Freeze E:\FR\FM\27JNP2.SGM 27JNP2 29188 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Pending Review’’ (82 FR 8346 (January 24, 2017)). That memorandum directed the heads of Executive Departments and Agencies to temporarily postpone for 60 days from the date of the memorandum the effective dates of all regulations that had been published in the Federal Register but had not yet taken effect. OSHA therefore delayed the effective date for the final rule Occupational Exposure to Beryllium and Beryllium Compounds to March 21, 2017. On March 2, 2017, OSHA published a proposed delay of effective date for the final rule in the Federal Register (82 FR 12318 (3/2/17)). OSHA proposed this further delay in accordance with the January 20, 2017 Presidential directive from the Assistant to the President and Chief of Staff, entitled ‘‘Regulatory Freeze Pending Review’’ (82 FR 8346 (January 24, 2017)) that directed agencies to consider further delaying the effective date for regulations beyond the initial 60-day period. OSHA preliminarily determined that it would be appropriate to further delay the effective date of the final rule to give the new administration time to review questions of fact, law, and policy raised therein. OSHA therefore proposed extending the effective date to May 20, 2017 and sought comment on its proposal to extend the effective date by an additional 60 days. OSHA received twenty-five unique comments on this proposal with many of the commenters supporting the delay considering the ongoing transition to a new administration. Some of these commenters also requested that OSHA further review the impact of the rule on entities that would be affected by changes from the proposed beryllium rule. Several commenters opposed the proposed delay of the effective date. On March 21, 2017, after considering all the comments received, OSHA finalized the delay of the effective date for the final beryllium rule in the Federal Register (82 FR 14439 (2/21/ 17)). This action extended the effective date to May 20, 2017 and provided OSHA with additional time to conduct a further review of the final rule, including consideration of concerns raised by interested parties. After careful consideration, and for reasons explained fully in the Summary and Explanation of this preamble, OSHA is proposing to revoke the ancillary provisions for both construction and shipyards adopted in the January 9, 2017 final rule and retain the new lower PEL of 0.2 mg/m3 and STEL of 2.0 mg/ m3 for those sectors (see Section XV, Summary and Explanation of the Proposal). IV. Technological Feasibility Summary Exposure Profile This section summarizes the basis for OSHA’s technological feasibility findings made in the 2016 Final Economic Analysis (FEA) for the January 9, 2017 beryllium final rule (see Docket ID 2042, FEA Chapter IV— Technological Feasibility). It is presented here for informational purposes only. The information in this section is drawn entirely from the 2016 FEA and contains no new information or assessment. Abrasive Blasting in Construction and Shipyards The primary abrasive blasting job categories include the abrasive blasting operator (blaster) and pot tender (blaster’s helper or assistant) during open blasting projects. Support personnel such as pot tenders or abrasive media cleanup workers might also be employed to clean up (e.g., by vacuuming or sweeping) and recycle spent abrasive and to set up, dismantle, and move containment systems and supplies (NIOSH, 1976, Document ID 0779; NIOSH, 1993, 0777; NIOSH, 1995, 0773; NIOSH, 2007, 0770; Flynn and Susi, 2004, 1608; Meeker et al., 2005, 0699). Section 15 of Chapter IV of the 2016 Final Economic Analysis (FEA) for the January 9, 2017 final beryllium rule included a detailed discussion of exposure data and analysis for the development of the exposure profile for workers in abrasive blasting operations. Because OSHA addressed general industry abrasive blasting operations in other general industry sections where appropriate, such as in the nonferrous foundries industry, the exposure profile in Section 15 addressed only exposure data from construction and shipyard tasks. The exposure profile for abrasive blasters, pot tenders/helpers, and abrasive media cleanup workers was based on two National Institute for Occupational Safety and Health (NIOSH) evaluations of beryllium exposure from abrasive blasting with coal slag, unpublished sampling results for abrasive blasting operations from four U.S. shipyards, and data submitted by the U.S. Navy (NIOSH, 1983, Document ID 0696; NIOSH, 2007, 0770; OSHA, 2005, 1166; U.S. Navy, 2003, 0145). TABLE IV.1—EXPOSURE PROFILE FOR ABRASIVE BLASTING WORKERS Number of full-shift PBZ sample results in range (μg/m3) <0.1 Abrasive Blasters ......... Pot Tender ................... Cleanup ........................ mstockstill on DSK30JT082PROD with PROPOSALS2 Totals .................... ≥0.1 to ≤0.2 >0.2 to ≤0.5 >0.5 to ≤1.0 >1.0 to ≤2.0 Total number of samples >2.0 45 30.4% 9 56.2% 20 66.6% 38 25.7% 7 43.8% 8 26.7% 22 14.8% 0 0% 0 0% 7 4.7% 0 0% 0 0% 8 5.4% 0 0% 1 3.3% 28 18.9% 0 0% 1 3.3% 148 100% 16 100% 30 100% 74 38.1% 53 27.3% 22 11.2% 7 3.6% 9 4.6% 29 15% 194 100% Sources: Document ID 0145; OSHA 2005, Document ID 1166; NIOSH 1983, 0696; NIOSH 2007. 0770. Notes: Sample results are expressed as eight-hour time-weighted averages and include sampling durations of 240 minutes or longer. Non-detected shipyard results are incorporated into the exposure profile by assigning the detection limit value to each result reported as less than the sample limit of detection. Excludes four results where garnet was used as the abrasive due to high nondetectable reporting limits. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\27JNP2.SGM 27JNP2 29189 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Welding in Shipyards Similar to the profile for abrasive blasting activities, OSHA used exposure data from the 2016 FEA to develop the exposure profile for welding in shipyards. OSHA used the exposure data from Chapter IV–10 Appendices 2 and 3 and combined the aluminum base metal and non-aluminum or unknown base material data. OSHA removed shorter duration samples that appeared in Appendix 3 of FEA Chapter IV–10. Seven maritime welding samples from Appendix 3, Table IV–10.6 with sampling durations of 240 minutes or greater were used in this profile to represent the 8-hour TWA samples. IV.2—WELDING IN SHIPYARDS—BERYLLIUM 8-HOUR TWA EXPOSURE PROFILE Number of beryllium samples in range (μg/m3) and percent of total in range Range >0.1 to ≤0.2 <0.1 Aluminum Base Material Percent .. Base Material Not Aluminum or Unknown Percent ....................... Totals ...................................... >0.2 to ≤0.5 >0.5 to ≤1.0 >1.0 to ≤2.0 >2.0 Total 4 57% 0 0% 0 0% 2 28.6% 1 14.3% 0 0% 7 100% 123 96.9% 2 21.6% 0 0% 2 1.6% 0 0% 0 0% 127 100% 127 94.8% 2 1.5% 0 0% 4 3.0% 1 0.7% 0 0% 134 100% Sources: OSHA Shipyards, 2005, Document ID 1166; U.S. Navy, 2003, Document ID 0145. Beryllium samples below the limit of detection are recast as 0 μg/m3 to reflect likely absence of beryllium in the work materials. Data includes samples collected over periods of 240 minutes or longer, to avoid samples with elevated limits of detection that cannot be meaningfully interpreted. Technological Feasibility Determination Overall, based on the information discussed in Chapter IV of Final Economic Analysis of the January 9, 2017 final beryllium rule, OSHA determined that the majority of the exposures in construction and shipyards are either already at or below the new final PEL, or can be adequately controlled to levels below the final PEL through the implementation of additional engineering and work practice controls for most operations most of the time. The one exception is that OSHA determined that workers who perform open-air abrasive blasting using mineral grit (i.e., coal slag) will routinely be exposed to levels above the final PEL even after the installation of feasible engineering and work practice controls, and therefore, these workers will also be required to wear respiratory protection. Therefore, OSHA concluded in the January 9, 2017 final rule that the final PEL of 0.2 mg/m3 is technologically feasible in abrasive blasting in construction and shipyards and in welding in shipyards. V. Preliminary Economic Analysis mstockstill on DSK30JT082PROD with PROPOSALS2 A. Introduction This Preliminary Economic Analysis (PEA) addresses issues related to the profile of affected application groups, establishments, and employees, the cost savings, and the health effects of OSHA’s proposal to revoke both the construction and shipyard ancillary provisions and make no changes to the January 9, 2017 final rule’s PEL and STEL for the shipyard and construction industries. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 The proposed actions are not ‘‘economically significant regulatory actions’’ under Executive Order 12866 or UMRA, nor are they ‘‘major rules’’ under the Congressional Review Act (5 U.S.C. 801 et seq.). Neither the benefits nor the costs of these proposed actions exceed $100 million. In addition, they do not meet any of the other criteria specified by UMRA for a significant regulatory action or the Congressional Review Act for a major rule. However, these actions have been determined to be ‘‘significant’’ under Executive Order 12866. Under this proposal, employers in shipyards and construction would no longer be required to implement the ancillary provisions adopted by the January 9, 2017 final rule. The nine ancillary provisions being removed by this proposal are: (1) Assess employees’ exposure to airborne beryllium, (2) establish regulated areas or a competent person, (3) develop a written exposure control plan, (4) provide personal protective work clothing and equipment, (5) establish hygiene areas and practices, (6) implement housekeeping measures, (7) provide medical surveillance, (8) provide medical removal for employees who have developed CBD or been confirmed positive for beryllium sensitization, and (9) provide appropriate training. OSHA assumes that these employers have already incurred the costs of familiarizing themselves with the ancillary provisions in the final rule. In addition, the proposal would retain the new PEL and STEL through revisions of the Z Table in 29 CFR 1915.1000 in shipyards and Appendix A to 29 CFR PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 1926.55 in construction. The changes to these tables are a technical correction, given the proposed changes, and will not affect the PEL and STEL requirements of the final rule. While OSHA still welcomes comment on the applicability of existing standards to the operations covered by this proposal, this PEA provides OSHA’s preliminary assessment of how those standards impact the costs, benefits, and baseline compliance associated with the beryllium rule. This Introduction to the PEA is followed by: • Section B: Profile of Affected Application Groups, Establishments, and Employees • Section C: Cost Savings • Section D: Health Benefits B. Profile of Affected Application Groups, Establishments, and Employees Introduction In this section, OSHA presents the preliminary profile of industries affected by this proposal to revoke the ancillary provisions for the shipyard and construction sectors (82 FR 2470– 2757, 1/9/2017) while retaining the revised PEL and STEL for those sectors. The profile data in this section are drawn from the industry profiles in Chapter III and exposure profiles and data in Chapter IV of the Final Economic Analysis supporting the new beryllium standards (‘‘2016 FEA’’; Document ID 2042). As a first step, OSHA identifies the North American Industrial Classification System (NAICS) industries, both in the shipyard and construction sectors, with potential E:\FR\FM\27JNP2.SGM 27JNP2 29190 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules mstockstill on DSK30JT082PROD with PROPOSALS2 worker exposure to beryllium. Next, OSHA provides statistical information on the affected industries, including the number of affected entities and establishments, the number of workers whose exposure to beryllium could result in disease or death (‘‘at-risk workers’’), and the average revenue and profits for affected entities and establishments by six-digit NAICS industry.1 This information is provided for each affected industry as a whole, as well as for small entities, as defined by the Small Business Administration (SBA), and for ‘‘very small’’ entities, defined by OSHA as those with fewer than 20 employees, in each affected industry (U.S. Census Bureau, 2014). For each industry sector identified, the Agency describes the uses of beryllium and estimates the number of establishments and employees that may be affected by this rulemaking. Employee exposure to beryllium can also occur as a result of certain processes (such as welding) that are found in many industries. This analysis will use the term ‘‘application group’’ to refer to a cross-industry group with a common process. Beryllium is rarely used by all establishments in any particular industry because of its unique properties and relatively high cost. In Chapter III of the 2016 FEA, OSHA described each application group; identified the processes and occupations with beryllium exposure, including available sampling exposure measurements; and explained how OSHA estimated the number of establishments working with beryllium and the number of employees exposed to beryllium. Those estimates and the new exposure profile for abrasive blasting in construction and shipyards and welding in shipyards are presented in this preamble, along with a brief description of the application groups and an explanation of the derivation of the new exposure profiles. For additional information about these data and the application groups, please see 1 The Census Bureau defines an establishment as a single physical location at which business is conducted or services or industrial operations are performed. The Census Bureau defines a business firm or entity as a business organization consisting of one or more domestic establishments in the same state and industry that are specified under common ownership or control. The firm and the establishment are the same for single-establishment firms. For each multi-establishment firm, establishments in the same industry within a state will be counted as one firm; the firm employment and annual payroll are summed from the associated establishments. (U.S. Census Bureau, Statistics of U.S. Businesses, Glossary, 2017, https:// www.census.gov/programs-surveys/susb/about/ glossary.html (Accessed March 3, 2017). VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 Chapter III of the 2016 FEA.2 Finally, the Agency discusses wage data, the hire rate, and current industry practices. All costs are estimated in 2016 dollars. Costs reported in 2016 dollars were applied directly in this PEA; wage data were updated to 2016 dollars using BLS data; all other costs reported for years earlier than 2016 were updated to 2016 dollars using the GDP implicit price deflator (OSHA, 2017). Affected Application Groups OSHA’s 2016 FEA identified one affected application group in the construction sector and two application groups in the shipyard sector. Both the shipyard and construction sectors have employees in the abrasive blasting application group, and the shipyard sector has employees in the welding application group. In the following sections, OSHA describes the application groups in construction and shipyards that will be affected by this proposal. Abrasive Blasting Abrasive blasting involves the use of hand-held or automatic equipment to direct a stream of abrasive material at high speed against a surface to clean, abrade, etch, or otherwise change the original appearance or condition of the surface (WorkSafe, 2000, Document ID 0692). Surfaces commonly treated by abrasive blasting techniques include iron, steel, aluminum, brass, copper, glass, masonry (brick, concrete, stone, etc.), sand castings, plastic, and wood (NIOSH, 1976, Document ID 0779). In construction and shipyards, abrasive blasting is primarily used for two purposes: • Cleaning surfaces by removing unwanted paint, rust, scale, dirt, salts, grease, and flux in preparation for painting, anodizing, welding, or other processes requiring a clean surface. • Producing a desired matte or decorative finish. Abrasive blasting systems generally include an abrasive container or blasting pot, a propelling device, and an abrasive blasting nozzle. The three main propelling methods are air pressure, water pressure, and centrifugal force provided by the use of wheels. Air blasting systems use compressed air to propel the abrasive (dry blasting), water blasting systems use either compressed air (wet blasting) or high pressure water (hydroblasting), and centrifugal wheel systems use centrifugal and inertial forces (EPA, 1997, Document ID 0784). 2 OSHA contractor Eastern Research Group (ERG) provided support for the 2016 FEA. References to ERG’s analytical work appear throughout this PEA. PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 Abrasive blasting can generate large quantities of dust that contains a variety of metals and toxic air contaminants. Workers can have exposures to multiple air contaminants from both the abrasive and the surface being blasted. The source of the air contaminants includes the base material being blasted, the surface coating(s) being removed, the abrasive being used, and any abrasive contamination from previous blasting operations (Burgess 1991, Document ID 0907). Potential air contaminants that might be associated with abrasive blasting and their sources are listed in Table IV.65 in Chapter IV of the FEA in support of the new beryllium standards. Abrasives A number of different types of abrasives containing beryllium in trace amounts can be used for blasting media depending on the application. The most commonly used abrasives in the construction industry (e.g., to etch the surfaces of outdoor structures, such as bridges, prior to painting) include coal slag and steel grit (Meeker et al., 2006, Document ID 0698). Copper slag produced as by-product at copper smelters can also be used as an abrasive. Shipyards are large users of mineral slag abrasives. In a survey of 26 U.S. shipyards and boatyards about abrasive media usage conducted for the Navy, the use of coal slag abrasives accounted for 68 percent and copper slag accounted for 20 percent (NSRP, 1999, Document ID 0767). Workers who perform abrasive blasting using either coal or copper slag abrasives are potentially exposed to beryllium (Greskevitch, 2000, Document ID 0701). OSHA requests updates on this assessment of commonly used abrasive blasting media in construction and shipyards. Affected Job Categories Abrasive blasting is mainly used in construction and shipyard operations by painting contractors and welders. (NIOSH, 1976, Document ID 0779). The primary abrasive blasting job categories in construction and shipyards include the abrasive blasting operator (blaster) and the pot tender. Support personnel (cleanup helper) might also be employed to clean up (e.g., by vacuuming or sweeping) and recycle spent abrasive, and to set up, dismantle, and move containment systems and supplies (NIOSH, 1995, Document ID 0773). As explained in its 2016 FEA, OSHA estimated that 80 percent of all shipyard blasting operations and 75 percent of construction blasting operations generate potential beryllium exposures. E:\FR\FM\27JNP2.SGM 27JNP2 29191 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules OSHA has maintained the same assumption here and invites comment on these estimates. As was estimated in OSHA’s industry profile for the 2016 FEA, for this PEA OSHA estimated there was one pot tender for each at-risk abrasive blaster and one abrasive media cleanup worker for every two abrasive blasters. The Agency invites comment on these estimates. Final Estimate of Populations at Risk in Abrasive Blasting In the 2016 FEA, OSHA developed final estimates of the numbers of workers who perform abrasive blasting. These at-risk populations include workers in the construction sector engaged in blasting building exteriors or blasting ancillary to painting of bridges, tunnels, and related highways; ships; and other non-building construction. Shipyard workers might perform blasting as part of ship surface cleaning and preparation prior to painting or other surface coating. In the 2016 FEA, based on the BLS description of broad occupational classifications, OSHA’s estimates grouped these workers in the categories ‘‘painters, construction, and maintenance’’ or ‘‘painters, transportation equipment.’’ 3 The same grouping is applied in this PEA. Below in Tables V–1 and V–2, OSHA presents its estimate of affected blasters and blasting support personnel in construction and shipyards; this estimate, reported in the 2016 FEA, is now the Agency’s preliminary estimate for this NPRM. OSHA requests public comment on the estimate as well as the methodology, described in Chapter III of the 2016 FEA, for estimating affected abrasive blasters and abrasive blasting support personnel in construction and shipyards. TABLE V–1—PRELIMINARY PROFILE OF ESTABLISHMENTS AND EMPLOYEES IN ABRASIVE BLASTING-CONSTRUCTION AFFECTED BY OSHA’S PROPOSED DEREGULATORY ACTION ON BERYLLIUM NAICS Industry/job category Establishments Employees Affected establishments 238320 .............. Painting and Wall Covering Contractors ...................... Abrasive Blaster ............................................................ Pot Tender .................................................................... Cleanup ......................................................................... All Other Specialty Trade Contractors .......................... Abrasive Blaster ............................................................ Pot Tender .................................................................... Cleanup ......................................................................... 31,376 .......................... .......................... .......................... 29,072 .......................... .......................... .......................... 163,073 ........................ ........................ ........................ 193,631 ........................ ........................ ........................ 1,090 .......................... .......................... .......................... 1,010 .......................... .......................... .......................... 4,360 1,744 1,744 872 4,040 1,616 1,616 808 ....................................................................................... 60,448 356,704 2,100 8,400 238990 .............. Total .......... Affected employees Note: Data in columns may not sum to totals due to rounding. Sources: U.S. Census Bureau, 2014; US DOL, Directorate of Standards and Guidance, Office of Regulatory Analysis (2017). TABLE V–2—PRELIMINARY PROFILE OF ESTABLISHMENTS AND EMPLOYEES IN ABRASIVE BLASTING-SHIPYARDS AFFECTED BY OSHA’S PROPOSED DEREGULATORY ACTION ON BERYLLIUM NAICS Industry Establishments Employees Affected establishments Affected employees 336611a ............ Ship Building and Repairing ......................................... Abrasive Blaster ............................................................ Pot Tender .................................................................... Cleanup ......................................................................... 689 .......................... .......................... .......................... 108,311 ........................ ........................ ........................ 689 .......................... .......................... .......................... 3,060 1,224 1,224 612 Total .......... ....................................................................................... 689 108,311 689 3,060 Note: Data in columns may not sum to totals due to rounding. Sources: U.S. Census Bureau, 2014; US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (2017). mstockstill on DSK30JT082PROD with PROPOSALS2 Welding Beryllium exposures can occur in arc and gas welding operations when welding on base materials containing beryllium and when using equipment with electrodes that include beryllium (hereafter generally referred to simply as ‘‘welding’’). Note that ‘‘gas welding’’ in this context also involves use of electrodes; the gas used is to protect the weld from the atmosphere. 3 In the Bureau of Labor Statistics’ Occupational Outlook Handbook (BLS, 2017b), the description of the duties of construction and maintenance painters includes the following: A few painters—mainly industrial—use special safety equipment. For example, painting in confined spaces, such as the VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 Beryllium exposures during welding are not common and, when observed, are low (see Chapter IV: Section 10 of the 2016 FEA in support of the new beryllium standards for an extended discussion of welding). For this preliminary profile, only arc and gas welding would be affected by the proposed deregulatory action.4 The principal area of welding exposures is among workers welding beryllium or beryllium-alloy products (see Chapter IV: Section 10 of the FEA in support of the new beryllium standards). inside of a large storage tank, requires workers to wear self-contained suits to avoid inhaling toxic fumes. On some projects they may operate abrasive blasters to remove old coatings, which may require the use of additional clothing and protective eyewear. (See https://www.bls.gov/ooh/ construction-and-extraction/painters-constructionand-maintenance.htm#tab-2, accessed April 5, 2017.) 4 The other common type of welding, resistance welding, does not typically generate beryllium exposure. PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 Welding in Shipyards In its 2016 FEA, OSHA included NAICS 336611: Ship Building and Repairing, in the set of industries in the Welding application group affected by the final rule. The number of establishments and employees in this shipyard industry affected by the final E:\FR\FM\27JNP2.SGM 27JNP2 29192 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Building and Repairing conduct arc and gas welding. Based on analysis by ERG of customer summary data submitted in a comment by Materion, OSHA further estimates that 3.4 percent of these establishments weld beryllium or rule, and therefore affected by this proposal, is displayed in Table V–3. As shown in the table, based on 2015 BLS Occupational Employment Statistics data, OSHA estimates that 28 percent of establishments in NAICS 336611: Ship beryllium alloy products (ERG, 2015, Document ID 0385, Workbook #8; Kolanz, 2001, Document ID 0091). OSHA requests public comment on the estimates shown in Table V–3. TABLE V–3—PRELIMINARY PROFILE OF ESTABLISHMENTS AND EMPLOYEES IN SHIPYARDS (SHIP BUILDING AND REPAIRING) AFFECTED BY OSHA’S PROPOSED DEREGULATORY ACTION ON BERYLLIUM NAICS code Industry a Total establishments b Total employees b Percent of establishments conducting arc and gas welding c Welding establishments All employees in welding establishments d Number of welding establishments using beryllium e Welders working on beryllium alloys f 336611b ......... Ship Building and Repairing. 689.0 108,311.0 28% 192.9 30,327.1 6.6 26.4 Sources: U.S. Census Bureau, 2014; BLS, 2016; US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (2017). a Based on industries with the largest number of positive beryllium samples for welders in the IMIS database (OSHA, 2004). These industries account for over 60 percent of the positive general industry samples for welders. b U.S. Census Bureau, 2014. c BLS, 2016. d Based on average industry size. e Estimated as the total number of establishments in the industry (689), multiplied by the percentage of establishments employing welders (28%), and further multiplied by the percentage of establishments welding on beryllium alloys (3.4 percent). (Kolanz, 2001, Document ID 0091). f Based on an ERG estimate of 500 establishments with an average of 4 workers that perform welding on beryllium alloys, or 2.4 percent of establishments with welding. The ERG estimate was derived from Brush Wellman Inc. data reporting approximately 2,000 welders performing welding on beryllium alloys (Kolanz, 2001, Document ID 0091). Summary of Affected Establishments and Employers As shown in Table V–4, OSHA estimates that a total of 11,486 workers in 2,796 establishments will be affected by this proposal. Also shown are the estimated annual revenues for these entities. Table V–5 presents the Agency’s preliminary estimate of affected entities defined as small by the Small Business Administration (SBA); Table V–6 presents OSHA’s preliminary estimate of affected establishments and employees by NAICS industries for the subset of small entities with fewer than 20 employees.5 For the tables showing the characteristics of small and very small entities, OSHA generally assumed that beryllium-using small entities and very small entities would be the same proportion of overall small and very small entities as the proportion of beryllium-using entities to all entities as a whole in a NAICS industry. OSHA requests public comment on the profile data presented in Tables V– 4, V–5, and V–6. TABLE V–4—CHARACTERISTICS OF INDUSTRIES AFFECTED BY OSHA’S PROPOSED DEREGULATORY ACTION FOR BERYLLIUM—ALL ENTITIES Application group NAICS Industry Total entities a Total establishments a Total employees a Affected entities b Affected establishments b Total revenues ($1,000) a Affected employees b Revenues/ entity Revenues/ establishment Abrasive Blasting—Construction Abrasive Blasting— Construction. 238320 ... Abrasive Blasting— Construction. 238990 ... Painting and Wall Covering Contractors. All Other Specialty Trade Contractors. 31,317.0 31,376.0 163,073.0 1,088.0 1,090.0 4,360.0 $19,595,278 $625,707 $624,531 28,734.0 29,072.0 193,631.0 998.3 1,010.0 4,040.0 39,396,242 1,371,067 1,355,127 689.0 3,060.0 26,136,187 43,271,832 37,933,508 6.6 26.4 26,136,187 43,271,832 37,933,508 Abrasive Blasting—Shipyards * Abrasive Blasting— Shipyards. 336611a Ship Building and Repairing. 604.0 689.0 108,311.0 604.0 Welding in Shipyards ** mstockstill on DSK30JT082PROD with PROPOSALS2 Welding in Shipyards. 336611b Ship Building and Repairing. 604.0 5 Tables V–5 and V–6 indicate that small entities affected by the proposed rule contain 2,714 affected establishments affiliated with entities that are small by SBA standards and 2,365 affected establishments affiliated with entities that employ fewer than 20 employees. However, the small and very small entity figures in Tables V–5 and V–6 were not used to prepare the cost savings estimates in Section D of this PEA. For costing purposes in Section D, OSHA included small establishments owned by larger entities in the figures in Tables V–5 and V–6 because such establishments do not qualify as ‘‘small entities’’ for the purposes of a Regulatory Flexibility Analysis. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 689.0 108,311.0 5.8 To see the difference in the number of affected establishments by size for costing purpose, consider the example of a ‘‘large entity’’ with 500 employees, consisting of 50 ten-employee establishments. In Section B., each of these 50 establishments would be excluded from Tables V–5 and V–6 because they are part of a ‘‘large entity’’; in Section D., where all establishments are included because there is no filter for entity size, each would be considered a small establishment. Thus, for purposes of Section D., there are 2,399 affected establishments with fewer than 20 employees, 369 affected establishments with between 20 and 499 employees, and 28 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 establishments with more than 500 employees; these estimates were derived in the cost spreadsheet by NAICS industry and in total (see, for example, Columns TK through TM in the ‘‘Rule’’ tab as developed for familiarization cost savings; the totals are in cells TK5 through TM5) (OSHA, 2017). While not shown in the tables or used in the analysis, Census (2015) Statistics of US Businesses data suggest there are also a total of 3,464 establishments affiliated with entities in construction and shipyards employing between 20 and 499 employees, of which approximately 157 would be affected by the rule. E:\FR\FM\27JNP2.SGM 27JNP2 29193 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules TABLE V–4—CHARACTERISTICS OF INDUSTRIES AFFECTED BY OSHA’S PROPOSED DEREGULATORY ACTION FOR BERYLLIUM—ALL ENTITIES—Continued Application group NAICS Industry Total entities a Total establishments a Total employees a Affected entities b Affected establishments b Total revenues ($1,000) a Affected employees b Revenues/ entity Revenues/ establishment Total Construction Subtotal. Shipyard Subtotal .. ................. ............................... 60,051.0 60,448.0 356,704.0 2,086.2 2,100.0 8,400.0 58,991,519 982,357 975,905 ................. ............................... 1,208.0 1,378.0 216,622.0 609.8 695.6 3,086.4 52,272,373 43,271,832 37,933,508 Total, All Industries ................. ............................... 61,259.0 61,826.0 573,326.0 2,696.0 2,795.6 11,486.4 111,263,893 1,816,286 1,799,629 a U.S. mstockstill on DSK30JT082PROD with PROPOSALS2 Census Bureau, Statistics of U.S. Businesses: 2012, Document ID 2034. b OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the number of affected employees. Within each NAICS industry, the number of affected entities was calculated as the product of total number of entities for that industry and the ratio of the number of affected establishments to the number of total establishments. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\27JNP2.SGM 27JNP2 VerDate Sep<11>2014 238320 ..... NAICS 19:38 Jun 26, 2017 Jkt 241001 336611b ... Abrasive Blasting—Shipyards .......... Welding in Shipyards ....................... PO 00000 .................. .......................................................... .......................................................... .......................................................... Ship Building and Repairing ............ Ship Building and Repairing ............ Painting and Wall Covering Contractors. All Other Specialty Trade Contractors. Industry ...................... ...................... ...................... 1,250 1,250 100 100 SBA small business classification (employees) a Establishments for small entities b 31,243.0 28,605.0 629.0 60,928.0 59,758.0 1,170.0 585.0 Total 61,106.0 59,848.0 1,258.0 629.0 Welding in Shipyards ** 585.0 Abrasive Blasting—Shipyards * 28,537.0 31,221.0 331,316.0 276,976.0 54,340.0 27,170.0 27,170.0 143,112.0 133,864.0 Small entity employees b Abrasive Blasting—Construction Small business entities b 2,666.6 2,076.0 590.6 5.6 585.0 991.4 1,084.6 Affected small business entities c 2,714.2 2,079.2 635.0 6.0 629.0 993.8 1,085.4 Affected small establishments c 7,339.2 6,565.0 774.2 6.6 960 2,985.9 3,579.1 Affected employees for small entities c 58,429,529 46,341,743 12,087,785 6,043,893 6,043,893 29,789,492 $16,552,251 Total revenues for small entities ($1,000) b 958,993 775,490 10,331,440 10,331,440 10,331,440 1,043,890 $530,164 Revenues per small entity 956,200 774,324 9,608,732 9,608,732 9,608,732 1,041,409 $529,791 Revenues per small business establishment Data may not sum to totals due to rounding. a SBA Size Standards, 2016 (Document ID 2026). Data were not available specifically for small entities with more than 500 employees. For SBA small business classifications specifying 750 or more employees, OSHA used data for all entities in the industry. b U.S. Census Bureau, Statistics of US Businesses: 2012 (Document ID 2034). c OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the number of affected employees. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. Total, All Industries .......................... .................. .................. 336611a ... Abrasive Blasting—Construction ...... Construction Subtotal ....................... Shipyard Subtotal ............................. 238990 ..... Abrasive Blasting—Construction ...... Application group TABLE V–5—CHARACTERISTICS OF INDUSTRIES AFFECTED BY OSHA’S FINAL STANDARD FOR BERYLLIUM—SMALL ENTITIES mstockstill on DSK30JT082PROD with PROPOSALS2 29194 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\27JNP2.SGM 27JNP2 29195 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules TABLE V–6—CHARACTERISTICS OF INDUSTRIES AFFECTED BY OSHA’S FINAL STANDARD FOR BERYLLIUM—ENTITIES WITH FEWER THAN 20 EMPLOYEES Application group NAICS Establishments for entities with <20 employees a Entities with <20 employees a Industry Employees for entities with <20 employees a Affected entities with <20 employees b Affected establishments for entities with <20 employees b Affected employees for entities with <20 employees b Total revenues for entities with <20 employees ($1,000) a Revenues per entity with <20 employees Revenue per estab. for entities with <20 employees Abrasive Blasting—Construction Abrasive Blasting— Construction. 238320 ..... Abrasive Blasting— Construction. 238990 ..... Abrasive Blasting— Shipyards. 336611a ... Painting and Wall Covering Contractors. All Other Specialty Trade Contractors. 29,953.0 29,957.0 87,984.0 1,040.6 1,040.7 2,352.4 $10,632,006 $354,956 $354,909 27,026.0 27,041.0 90,822.0 938.9 939.4 1,894.9 19,232,052 711,613 711,218 380.0 381.0 381.0 547,749 1,441,445 1,437,661 3.6 3.6 3.6 547,749 1,441,445 1,437,661 1,979.5 1,980.1 4,247.3 29,864,058 524,124 523,949 Abrasive Blasting—Shipyards * Ship Building and Repairing. 380.0 381.0 2,215.0 Welding in Shipyards ** Welding in Shipyards. 336611b ... Ship Building and Repairing. 380.0 381.0 2,215.0 Construction Subtotal. Shipyard Subtotal ... .................. ................................ 56,979.0 56,998.0 178,806.0 .................. ................................ 760.0 762.0 4,430.0 383.6 384.6 384.6 1,095,498 1,441,445 1,437,661 Total, All Industries .................. ................................ 57,739.0 57,760.0 183,236.0 2,363.1 2,364.8 4,632.0 30,959,556 536,198 536,003 Total Data may not sum to totals due to rounding. a U.S. Census Bureau, Statistics of US Businesses: 2012 (Document ID 2034). b OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the number of affected employees. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. Beryllium Exposure Profile of At-Risk Workers The exposure profiles for abrasive blasting presented here were taken directly from Chapter IV of the 2016 FEA, and are more fully summarized in Section IV of this preamble. The exposure profile for welding in shipyards, however, is based on data presented in appendices 2 and 3 of Section 10.6 of Chapter IV, and again is more fully summarized in Section IV. Those data measure exposures of shipyard based welders, and OSHA has preliminarily determined that it is a more suitable data set on which to base the exposure profile of welders in shipyards than the data used in the 2016 FEA, which were based on general industry welding exposures.6 Exposure profiles, by job category, were developed from individual exposure measurements that were judged to be substantial and to contain sufficient accompanying description to allow interpretation of the circumstances of each measurement. The resulting exposure profiles show the job categories with current exposures to beryllium above the new PEL and, thus, the workers for whom beryllium controls would be implemented under the final beryllium standard. Tables V–7 and V–8 summarize, from the exposure profiles, the number of workers at risk of beryllium exposure and the distribution of 8-hour TWA beryllium exposures by affected application group and job category. Exposures are grouped into ranges (e.g., >0.05 mg/m3 and <0.1 mg/m3) that represent the percentages of employees in each job category and sector currently exposed at levels within the indicated range. Table V–9 presents data by NAICS code on the estimated number of workers currently at risk of beryllium exposure for each of the same exposure ranges. As shown, an estimated 2,167 (after rounding) workers currently have beryllium exposures above the final PEL of 0.2 mg/m3. OSHA requests public comment on the exposure profile shown in Tables V–7, V–8, and V–9. TABLE V–7—DISTRIBUTION OF BERYLLIUM EXPOSURES BY APPLICATION GROUP AND JOB CATEGORY OR ACTIVITY Exposure range (μg/m3) Job category/activity 0 to ≤0.0.5 a (%) >0.05 to ≤0.1 a (%) >0.1 to ≤0.2 (%) >0.2 to ≤0.25 (%) >0.25 to ≤0.5 (%) >0.5 to ≤1.0 (%) >1.0 to ≤2.0 (%) >2.0 (%) Total (%) mstockstill on DSK30JT082PROD with PROPOSALS2 Abrasive Blasting—Construction & Shipyards * Abrasive Blaster ........................................ Pot Tender ................................................ Cleanup ..................................................... 15.2 28.1 33.3 15.2 28.1 33.3 Welder ....................................................... 47.4 47.4 25.7 43.8 26.7 2.5 0.0 0.0 12.4 0.0 0.0 4.7 0.0 0.0 5.4 0.0 3.3 18.9 0.0 3.3 100.0 100.0 100.0 0.0 3.0 0.7 0.0 100.0 Welding—Shipyards ** 1.5 0.0 Note: Data may not sum to totals due to rounding. 6 The use of the general industry exposure profile for shipyard welders was inadvertent, and the differences between the exposure monitoring data from the general industry and these welding data VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 are not significantly different (e.g., the exposure data for the shipyard welders show 94.8 percent of the exposures occurring below 0.1 ug/m3, while the general industry estimates show 56.8 percent of the PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 exposures occurring below 0.1 ug/m3) and do not materially change the exposure assessment assumptions. E:\FR\FM\27JNP2.SGM 27JNP2 29196 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules a The lowest exposure range in OSHA’s technological feasibility analysis is ≤0.1 μg/m3 (see Chapter IV–02, Limits of Detection for Beryllium Data, in the FEA (Document ID 2042) in support of the new beryllium standards). Because OSHA lacked information on the distribution of worker exposures in this range, the Agency evenly divided the workforce exposed at or below 0.1 μg/m3 into the two categories shown in this table and in the columns with identical headers in Tables V–8 and V–9. OSHA recognizes that this simplifying assumption may overestimate exposure in these lower exposure ranges; the Agency requests comment as to whether members of the public share this observation. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility. TABLE V–8—NUMBER OF WORKERS EXPOSED TO BERYLLIUM BY AFFECTED APPLICATION GROUP, JOB CATEGORY, AND EXPOSURE RANGE [μg/m3] Exposure level (μg/m3) Application group/job category 0 to ≤0.05 >0.05 to ≤0.1 >0.1 to ≤0.2 >0.2 to ≤0.25 >0.25 to ≤0.5 >0.5 to ≤1.0 >1.0 to ≤2.0 >2.0 Total Abrasive Blasting—Construction Abrasive Blaster .................................. Pot Tender .......................................... Cleanup ............................................... 510.8 945.0 560.0 510.8 945.0 560.0 862.7 1,470.0 448.0 83.2 0.0 0.0 416.2 0.0 0.0 158.9 0.0 0.0 181.6 0.0 56.0 635.7 0.0 56.0 3,360.0 3,360.0 1,680.0 151.6 0.0 0.0 57.9 0.0 0.0 66.2 0.0 20.4 231.6 0.0 20.4 1,224.0 1,224.0 612.0 0.0 0.0 0.8 0.2 0.0 26.4 Abrasive Blasting—Shipyards * Abrasive Blaster .................................. Pot Tender .......................................... Cleanup ............................................... 186.1 344.3 204.0 186.1 344.3 204.0 314.3 535.5 163.2 30.3 0.0 0.0 Welding—Shipyards ** Welder ................................................. 12.5 12.5 0.4 Total Construction Subtotal .......................... Shipyard Subtotal ................................ 2,015.8 746.8 2,015.8 746.8 2,780.7 1,013.4 83.2 30.3 416.2 151.6 158.9 58.7 237.6 86.8 691.7 252.0 8,400.0 3,086.4 Total, All Industries ............................. 2,762.7 2,762.7 3,794.1 113.6 567.8 217.6 324.4 943.6 11,486.4 Note: Data may not sum to totals due to rounding. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Sources: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility and Office of Regulatory Analysis-Health. TABLE V–9—NUMBER OF WORKERS EXPOSED TO BERYLLIUM BY AFFECTED INDUSTRY AND EXPOSURE RANGE [μg/m3] Application group/ NAICS Exposure level (μg/m3) Industry 0 to ≤0.05 >0.05 to ≤0.1 >0.1 to ≤0.2 >0.2 to ≤0.25 >0.25 to ≤0.5 >0.5 to ≤1.0 >1.0 to ≤2.0 >2.0 Total Abrasive Blasting—Construction 238320 ....................... 238990 ....................... Painting and Wall Covering Contractors. All Other Specialty Trade Contractors. 1,046.3 1,046.3 1,443.3 43.2 216.0 82.5 123.3 359.0 4,360.0 969.5 969.5 1,337.4 40.0 200.2 76.4 114.3 332.7 4,040.0 30.3 151.6 57.9 86.6 252.0 3,060.0 0.0 0.0 0.8 0.2 0.0 26.4 Abrasive Blasting—Shipyards * 336611a ..................... Ship Building and Repairing. 734.3 734.3 336611b ..................... Ship Building and Repairing. 12.5 1,013.0 12.5 Welding in Shipyards ** 0.4 Total Construction Subtotal Shipyard Subtotal ...... ................................... ................................... 2,015.8 746.8 2,015.8 746.8 2,780.7 1,013.4 83.2 30.3 416.2 151.6 158.9 58.7 237.6 86.8 691.7 252.0 8,400.0 3,086.4 Total, All Industries .... ................................... 2,762.7 2,762.7 3,794.1 113.6 567.8 217.6 324.4 943.6 11,486.4 Note: Data may not sum to totals due to rounding. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Sources: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility and Office of Regulatory Analysis-Health. mstockstill on DSK30JT082PROD with PROPOSALS2 Loaded Wages and New Hire Rate For this PEA, OSHA updated the 2016 FEA wage estimates from 2015 to 2016 levels using data for base wages by Standard Occupational Classification (SOC) from the March 2017 Occupational Employment Statistics survey of the Bureau of Labor Statistics. OSHA applied a fringe markup (loading VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 factor) of 46.0 percent of base wages (BLS, 2016c, Document ID 1980); 7 7 A fringe markup (loading factor) of 46.0 percent was calculated in the following way. Employer costs for employee compensation for civilian workers averaged $33.94 per hour worked in March 2016. Wages and salaries averaged $23.25 per hour worked and accounted for 68.5 percent of these costs, while benefits averaged $10.70 and accounted for the remaining 31.5 percent. Therefore, the fringe PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 loaded hourly wages by application group and SOC are shown in Table V– 10. OSHA also updated the new hire rate for manufacturing from its 2016 FEA markup (loading factor) is $10.70/$23.25, or 45.6 percent. Total employer compensation costs for private industry workers averaged $32.06 per hour worked in March 2016 (BLS, 2016c, Document ID 1980). E:\FR\FM\27JNP2.SGM 27JNP2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules estimate of 27.2 percent to a final estimate of 23.9 percent (BLS, 2016b, Document ID 1977). The Agency applied the updated rate (23.9 percent) in this preliminary profile and requests public comment on the preliminary wage and hire rates shown in Table V– 10. Baseline Industry Practices and Existing Regulatory Requirements (‘‘Current Compliance’’) On Hazard Controls and Ancillary Provisions mstockstill on DSK30JT082PROD with PROPOSALS2 Table V–11 reflects OSHA’s estimate of current industry compliance rates, by application group and job category, for each of the ancillary provisions that, under the January 9, 2017 final rule, would affect the establishments that are subject to this preliminary deregulatory action. See Chapter III of the 2016 FEA for additional discussion of the current baseline compliance rates for each provision, which were estimated based on site visits, industry contacts, published literature, and the Final Report of the Small Business Advocacy Review (SBAR) Panel (SBAR, 2008, Document ID 0345). Note that the compliance rate is typically the same for all jobs in a given sector, except for administrative workers, who generally have zero percent compliance with hygiene requirements and 100 percent compliance with PPE (because they are not expected to need PPE during work assignments). In the 2016 FEA, OSHA estimated that abrasive blasters in construction and shipyards had a 75 percent compliance rate with the PPE requirements in the beryllium standards. However, upon further review of existing OSHA standards, OSHA is revising that estimate to 100 percent compliance for the purpose of this preliminary economic analysis. In construction, OSHA standard 29 CFR 1926.57(f)(5)(v) requires abrasive blasting operators to wear full PPE, including respirators, gloves, safety shoes, and eye protection. Similarly, 29 CFR 1915.34(c)(3) requires full PPE for abrasive blaster operators performing mechanical paint removal in shipyards. Because it would not be appropriate to claim cost savings for withdrawing a rule when existing rules already have the same requirements, for the purpose VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 of calculating cost savings and foregone benefits in this proposal, OSHA preliminarily estimates that withdrawing the beryllium rule’s PPE requirements for abrasive blaster operators in construction and shipyards would have no effect on PPE compliance because those workers are already required to wear full PPE. In addition, OSHA also found, after a review of shipyard personal protective equipment requirements, that gloves are required under 1915.157(a) to protect workers from hazards faced by welders, such as thermal burns.8 Therefore, for the purpose of calculating cost savings and foregone benefits in this proposal, the Agency now preliminarily estimates that abrasive blasting operators in shipyards and construction and welders in shipyards are already equipped with full personal protective equipment 100 percent of the time when exposed to beryllium. Additionally, upon review, OSHA has preliminarily determined that relevant PPE is required by the existing Personal Protective Equipment standard (1926.95) and the existing Hand and Body Protection standard (1915.157) to protect blasting helpers in construction and shipyards, respectively, from dermal exposure to beryllium dust. Therefore, the Agency now preliminarily estimates that all affected employees are already required to be equipped with PPE 100 percent of the time when exposed to beryllium, and uses this preliminary determination in calculating proposed cost savings and foregone benefits. OSHA requests public comment on this revised approach and on the other preliminary baseline compliance estimates shown in Table V–11, as well as the methodology behind them as set forth in Chapter III of the 2016 FEA. OSHA also reviewed existing housekeeping requirements and found that some housekeeping is also already required for abrasive blasting operations in construction and shipyards. CFR 1926.57(f)(7) requires that dust not be 8 In fact, the 0 percent baseline compliance rate for PPE in shipyard welding in the 2016 FEA was simply a mistake insofar as baseline compliance rate for PPE in general industry was 100 percent in the same document. For a discussion of existing welding requirements, see the discussion in Section V.C, Costs, in this preamble. PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 29197 allowed to accumulate and that spills be cleaned up promptly. The general industry Ventilation standard requires the same in abrasive blasting in shipyards (see 29 CFR 1910.94(a)(7), 1910.5(c)). 29 CFR 1926.57(f)(3) and (f)(4) also require exhaust ventilation and dust collection and removal systems in abrasive blasting operations in construction. Therefore, compliance with 1926.57(f) and 1910.94(a)(7) already ensures that employers take some steps during the blasting operations to prevent accumulations of dust sufficient to create exposures exceeding the PEL in clean-up after blasting operations are completed.9 For these reasons, in this proposal, OSHA is only taking a cost savings for housekeeping in abrasive blasting operations in construction and shipyards for the cost of HEPA-filtered vacuums and similar equipment. In Table V–11, where current labor compliance rates are 100 percent, OSHA indicates that removal of the ancillary provision in question would have no effect on labor compliance rates. OSHA welcomes comments on the baseline compliance estimates shown in Table V–11, particularly with respect to PPE and housekeeping. As a final point on baseline industry practices, OSHA acknowledges the possibility of a future decline in the use of coal slag abrasive materials and welcomes comment and information on this issue. To the extent that coal slag abrasives are replaced by other blasting materials which do not have the potential for beryllium exposures of concern, the costs and benefits of the PELs for abrasive blasting operations would also decrease. 9 As explained in the Abrasive Blasting section of the Technological Feasibility chapter of the FEA, abrasive blasting cleanup workers are those who are ‘‘responsible for cleaning up spent abrasive (e.g., by vacuuming or sweeping) at the end of the day’s blasting.’’ Of the 30 cleanup workers in the exposure profile of the FEA, two had exposures over the new PEL of 0.2 mg/m3. One cleanup worker had an 8-hour TWA sample result of 1.1 mg/m3, but blasting took place in the area during this worker’s cleanup task and it is likely that the nearby abrasive blasting contributed to the sample result. The other cleanup worker had a sample result of 7.4 mg/m3, but that worker’s exposure appears to be associated with the use of compressed air for cleaning in conjunction with nearby abrasive blasting. E:\FR\FM\27JNP2.SGM 27JNP2 29198 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules TABLE V–10—LOADED HOURLY WAGES AND HIRE RATE FOR OCCUPATIONS (JOBS) EXPOSED TO BERYLLIUM AND AFFECTED BY OSHA’S PROPOSED ACTION SOC a Loaded hourly (or daily d) wage Monitoring c .......................... Industrial Hygienist Consultant. IH Technician—Initial .......... IH Technician—Additional and Periodic. Production Worker .............. N/A N/A N/A ...................................... N/A N/A $164.81 .................... .................... .................... .................... ............................................. ............................................. .................... .................... ...................... ...................... d 2,642.59 31–33 51–0000 Production Occupations ...... $16.55 46 24.16 Human Resources Manager 31–33 11–3121 49.61 46 72.42 Clerical ................................ 31–33 43–4071 Human Resources Managers. File Clerks ........................... 15.43 46 22.53 Training Instructor ............... 31–33 13–1151 28.32 46 41.34 Physician (Employers’ Physician). First Line Supervisor ........... 31–33 29–1062 90.96 46 132.79 Various 51–1011 28.14 46 41.08 Regulated Area/Job Briefing e. Medical Surveillance e .......... Exposure Control Plan, Medical Surveillance, and Medical Removal e. Training e .............................. Medical Surveillance e .......... Multiple Provisions f ............. Occupation Fringe markup percentage, total b Job Monitoring d .......................... NAICS Median hourly wage Provision in the standard Training and Development Specialists. Family and General Practitioners. First-Line Supervisors of Production and Operating Workers. d 1,321.30 mstockstill on DSK30JT082PROD with PROPOSALS2 Sources: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance. a 2010 Standard Occupational Classification System. Bureau of Labor Statistics. http://www.bls.gov/soc/classification.htm. b BLS, 2016c, Document ID 1980. c ERG estimates based on discussions with affected industries, and inflated to 2016 dollars (BEA, 2017). d Wages used in the economic analysis for the Silica final rule, inflated to 2016 dollars. Wage rates shown are estimated daily remuneration for industrial hygiene services. e BLS, 2017a. f BLS, 2017a; Weighted average for SOC 51–1011 in NAICS 313000, 314000, 315000, 316000, 321000, 322000, 323000, 324000, 325000, 326000, 327000, 335000, 336000, 337000, and 339000. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\27JNP2.SGM 27JNP2 VerDate Sep<11>2014 19:38 Jun 26, 2017 .................... Exposure monitoring (%) 0 0 0 .................... 0 0 0 .................... 0 All ................................. Job Abrasive Blaster ........... Pot Tender ................... Cleanup ........................ All ................................. Abrasive Blaster ........... Pot Tender ................... Cleanup ........................ All ................................. Welder .......................... 75 75 75 .................... 75 75 75 .................... 0 .................... Beryllium work areas (%) 75 75 75 .................... 75 75 75 .................... 0 .................... Regulated areas (%) 75 75 75 .................... 75 75 75 .................... 0 .................... Medical surveillance a (%) 0 0 0 .................... 0 0 0 .................... 0 .................... Medical removal (%) 75 75 75 .................... 75 75 75 .................... 0 .................... Exposure control plan (%) 100% No Effect ............ 100% No Effect ............ 100% No Effect ............ ...................................... 100% No Effect ............ 100% No Effect ............ 100% No Effect ............ ...................................... 100% No Effect ............ ...................................... PPE 75 75 75 .................... 75 75 75 .................... 0 .................... Employee (%) 75 75 75 .................... 75 75 75 .................... 0 .................... Establishment (%) Hygiene 75 75 75 .................... 75 75 75 .................... 0 .................... Training (%) 100% No Effect ............ 100% No Effect ............ 100% No Effect ............ ...................................... 100% No Effect ............ 100% No Effect ............ 100% No Effect ............ ...................................... 0% ................................ ...................................... Housekeeping labor Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2016). a Estimated compliance rates for medical surveillance do not include medical referrals. OSHA estimates that baseline compliance rates for medical referrals are zero percent for all application groups shown in the table. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Abrasive Blasting Construction. Blasting Construction ... Blasting Construction ... Blasting Construction ... Blasting Shipyards * ..... Blasting Shipyards ....... Blasting Shipyards ....... Blasting Shipyards ....... Welding Shipyard ** ...... Welding Shipyard ......... Application group 0 0 0 .................... 0 0 0 .................... 0 .................... Vacuum, bags, labels (%) TABLE V–11—ESTIMATED CURRENT COMPLIANCE RATES FOR INDUSTRY SECTORS AFFECTED BY OSHA’S PROPOSED DEREGULATORY ACTION ON BERYLLIUM mstockstill on DSK30JT082PROD with PROPOSALS2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Jkt 241001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\27JNP2.SGM 27JNP2 29199 29200 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules mstockstill on DSK30JT082PROD with PROPOSALS2 References Brush Wellman, 2004. Individual full-shift personal breathing zone (lapel-type) exposure levels collected by Brush Wellman in 1999 at their Elmore, Ohio facility were provided to ERG in August 2004. Brush Wellman, Inc., Cleveland, Ohio. Document ID 0578. Bureau of Economic Analysis, 2017 (BEA, 2017). Table 1.1.9. Implicit price deflators for Gross Domestic Product. February 28, 2017. Available at: https:// www.bea.gov/iTable/iTable.cfm?ReqID= 9&step=1#reqid=9&step=3& isuri=1&904=1929&903=13&906= a&905=2016&910=x&911=0 (Accessed March 2, 2017). Bureau of Labor Statistics, 2010 (BLS, 2011). Occupational Employment Statistics Survey—May 2010. Bureau of Labor Statistics, 2011 (BLS, 2012). Occupational Employment Statistics Survey—May 2011. Bureau of Labor Statistics, 2015 (BLS, 2016a). Occupational Employment Statistics Survey—May 2015. (Released March 30, 2016). Available at: http://www.bls.gov/ oes/tables.htm (Accessed February 25, 2017). Bureau of Labor Statistics, 2015 (BLS, 2016b). Job Openings and Labor Turnover Survey (JOLTS): 2015. Available at: http://www.bls.gov/jlt/data.htm (Accessed April 25, 2016). Bureau of Labor Statistics, 2015 (BLS, 2016c). Employer Costs for Employee Compensation—March 2016. News Release, June 9, 2016. https:// www.bls.gov/news.release/archives/ ecec_06092016.htm (Accessed March 6, 2017). Bureau of Labor Statistics, 2016 (BLS, 2017a). Occupational Employment Statistics Survey—May 2016. (Released March 31, 2017). Available at http://www.bls.gov/ oes/tables.htm (Accessed March 31, 2017). Bureau of Labor Statistics, 2015 (BLS, 2017b). Occupational Outlook Handbook. Painters, Construction and Maintenance. https://www.bls.gov/ooh/constructionand-extraction/painters-constructionand-maintenance.htm#tab-2. December 17, 2015. Accessed April 5, 2017. ERG, 2014. ‘‘Summary of ERG Interviews on Abrasive Blasters’ Use of Beryllium Blast Media,’’ Memo from Eastern Research Group, October 6. Document ID 0516. Greskevitch, M., 2000. Personal email communication between Mark Greskevitch of the U.S. National Institute for Occupational Safety and Health (NIOSH) and Eastern Research Group, Inc., February 17, 2000. Document ID 0701. Kolanz, M., 2001. Brush Wellman Customer Data Summary. OSHA Presentation, July 2, 2001. Washington, DC. Document ID 0091. Meeker, J.D., P. Susi, and A. Pellegrino, 2006. Case Study: Comparison of Occupational Exposures Among Painters Using Three Alternative Blasting Abrasives. Journal of Occupational and Environmental Hygiene 3(9): D80–D84. Document IDs 0698; 1606; and 1815, Attachment 93. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 NIOSH, 1976. National Institute for Occupational Safety and Health, 1976. Abrasive Blasting Operations: Engineering Control and Work Practices Manual. NIOSH Publication No. 76–179. March 1976. Document ID 0779. NIOSH/KTA-Tator, 1998a. Evaluation of Substitute Materials for Silica Sand in Abrasive Blasting. KTA-Tator, Inc. Prepared for Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health. Contract No. 200–95–2946. September 1998. Document ID 1090; 1815, Attachment 85. NIOSH/KTA-Tator, 1998b. Evaluation of Substitute Materials for Silica Sand in Abrasive Blasting. Prepared for Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health. Prepared by KTATator, Inc., Pittsburgh, Pennsylvania. Phase 2 (Field Investigations), December 1998. Document ID 0769; 1815, Attachment 86. The National Shipbuilding Research Program, 1999. (NSRP, 1999) Feasibility and Economics Study of the Treatment, Recycling and Disposal of Spent Abrasives. NSRP, U.S. Department of the Navy, Carderock Division, Naval Surface Warfare Center in cooperation with National Steel and Shipbuilding Company, San Diego, California. NSRP 0529, N1–93–1. April 9. Document ID 0767. The National Shipbuilding Research Program, 2000. Cost-Effective Clean Up of Spent Grit. NSRP, U.S. Department of the Navy, Carderock Division, Naval Surface Warfare Center in cooperation with National Steel and Shipbuilding Company, San Diego, California. NSRP 0570, N1–95–4. December 15. Document ID 0766. OSHA. (OSHA, 2004). OSHA Integrated Management Information System. Beryllium data provided by OSHA covering the period 1978 to 2003. Document ID 0340, Attachment 6. OSHA. (OSHA, 2005). Beryllium Exposure Data for Hot Work and Abrasive Blasting Operations from Four U.S. Shipyards (Sample Years 1995 to 2004). Data provided to Eastern Research Group (ERG), Inc. by the U.S. Department of Labor, Occupational Safety and Health Administration. March 2005. [Unpublished]. Document ID 1166. Accessed March 10, 2017. OSHA. (OSHA, 2009). Integrated Management Information System (IMIS). Beryllium exposure data, updated April 21, 2009. Data provided to Eastern Research Group, Inc. by the U.S. Department of Labor, Occupational Safety and Health Administration, Washington, DC [Unpublished, electronic files]. Document ID 1165. OSHA. (OSHA, 2016). Technical and Analytical Support for OSHA’s Final Economic Analysis for the Final PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 Standard on Beryllium and Beryllium Compounds: Excel Spreadsheets Supporting the FEA. OSHA, Directorate of Standards, Office of Regulatory Analysis. December 2016. Document ID OSHA–H005C–2006–0870–2044. OSHA. (OSHA, 2017). Excel Spreadsheets of Economic Costs, Impacts, and Benefits in Support of OSHA’s Preliminary Economic Analysis (PEA) for the Proposed Deregulatory Action of Removing the Ancillary Revisions for the Maritime Sector and the Construction Sector from the Scope of the New Beryllium Standards: May 2017. Queensland Government, 1999. Abrasive Blasting Industry Code of Practice. Department of Employment, Training and Industrial Relations, Division of Workplace Health and Safety, Queensland Government, Australia. June 22, 1999. Document ID 0694. Small Business Advocacy Review, 2008 (SBAR, 2008). SBAR Panel Final Report, OSHA. Document ID 0345. U.S. Census Bureau, 2009. County Business Patterns: 2007. Available at http:// www.census.gov/econ/cbp/index.html. U.S. Census Bureau, 2012. County Business Patterns: 2010. Available at http:// www.census.gov/econ/cbp/index.html. Document ID 0685. U.S. Census Bureau, 2014. County Business Patterns: 2012. Available at http:// www.census.gov/data/datasets/2012/ econ/cbp/2012-cbp.html. U.S. Census Bureau, 2015. Statistics of US Businesses: 2012. Available at: https:// www.census.gov/data/tables/2012/econ/ susb/2012-susb-annual.html. U.S. Environmental Protection Agency, 1997a. (EPA, 1997a) Emission Factor Documentation for AP–42, Section 13.2.6, Abrasive Blasting. Final Report. U.S. EPA, Office of Air Quality Planning and Standards, Emission Factor and Inventory Group, Research Triangle Park, North Carolina. September. Document ID 0784. U.S. Environmental Protection Agency, 1997b. (EPA, 1997b) EPA Office of Compliance Sector Notebook Project: Profile of the Shipbuilding and Repair Industry. U.S. EPA, Office of Compliance, Office of Enforcement and Compliance Assurance, Washington, DC Document No. EPA/310–R–97–008. November 1997. Document ID 0783. U.S. Navy, 2003. 6–19–2: Attachment (1). Navy Occupational Exposure Database (NOED) Query Report Personal Breathing Zone Air Sampling Results for Beryllium. Document ID 0145. Accessed March 10, 2017. WorkSafe, 2000. Code of Practice: Abrasive Blasting. WorkSafe Western Australia Commission. June. Document ID 0692. C. Costs of Compliance Introduction In this section, OSHA estimates the cost savings to shipyard and construction establishments in all affected application groups as a result of this proposal to revoke the ancillary E:\FR\FM\27JNP2.SGM 27JNP2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules mstockstill on DSK30JT082PROD with PROPOSALS2 provisions in the new shipyard and construction beryllium standards. These ancillary provisions to be revoked encompass the following: exposure assessment, beryllium regulated areas (and competent persons in construction), a written exposure control plan, protective work clothing, hygiene areas and practices, housekeeping, medical surveillance, medical removal, and worker training. However, affected employers are estimated to incur a small additional cost to familiarize themselves with the changes to the ancillary provisions in the final rule as a result of this proposal. These cost savings incorporate OSHA’s preliminary updated baseline compliance estimates described in section V.B, on which OSHA seeks comment. These estimates of cost savings are largely based on the cost estimates presented for Regulatory Alternative 2a in the preamble for the new beryllium standards (82 FR 2470, 2612–2615 (January 9, 2017)), which were in turn derived from the Costs of Compliance chapter (Chapter V) of the supporting Final Economic Analysis (‘‘2016 FEA’’; Document ID 2042). Note that, as OSHA has not proposed changing the permissible exposure limit (PEL) or short-term exposure limit (STEL) set forth in the new beryllium standards, OSHA has not estimated any cost savings related to engineering controls or respirators. OSHA retained the same calculation methodology from the 2016 FEA and has updated the wages and unit costs from 2015 to 2016 dollars. OSHA estimates that this proposal would yield a total annualized cost savings of $11.0 million using a 3 percent discount rate across the shipyard and construction sectors. All cost savings in this section are expressed in 2016 dollars and were annualized using discount rates of 3 percent and 7 percent, as required by OMB.10 Costs in the 2016 FEA were expressed in 2015 dollars. Cost savings for this proposal have been updated to 2016 dollars. Unit costs developed in 10 See OMB Memo M–17–21 (April 5, 2017). OSHA included the 3 percent rate in its primary analysis, but Appendix V–A of this PEA also presents costs by NAICS industry and establishment size categories using, as alternatives, a 7 percent discount rate—shown in Table V–22— and a 0 percent discount rate—shown in Table V– 23. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 this section were multiplied by the number of workers who would have to comply with the provisions, as identified in Section B of this PEA (Profile of Affected Application Groups, Establishments, and Employees). The estimated number of affected workers depends on what level of exposure triggers a particular provision and the percentage of those workers estimated to already be in compliance. In a few cases, costs were calculated based on the number of firms. The cost methodology is detailed in Chapter V of the 2016 FEA. A discussion of affected workers is presented in Section B of this PEA. Complete calculations are available in the OSHA spreadsheet in support of this PEA (OSHA, 2017). Annualization periods for expenditures on equipment are based on equipment life, and onetime costs are annualized over a 10-year period.11 Table V–12 shows, by affected application group and six-digit NAICS code, annualized compliance cost savings for all establishments, for all small entities (as defined by the Small Business Act and the Small Business Administration’s (SBA’s) implementing regulations; see 15 U.S.C. 632 and 13 CFR 121.201), and for all very small entities (defined by OSHA as those with fewer than 20 employees). The Agency notes that it did not include an overhead labor cost either in the FEA in support of the January 9, 2017 final standards or in the primary analysis of this PEA. It is important to note that there is not one broadly accepted overhead rate and that 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 costs of any specific regulation. There 11 Executive Order 13563 directs agencies ‘‘to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.’’ In addition, OMB Circular A–4 suggests that analysis should include all future costs and benefits using a ‘‘rule of reason’’ to consider for how long it can reasonably predict the future and limit its analysis to this time period. Annualization should not be confused with depreciation or amortization for tax purposes. Annualization spreads costs out evenly over the time period (similar to the payments on a mortgage) to facilitate comparison of costs and benefits across different years. In cases where costs occur on an annual basis, but do not change between years, annualization is not necessary, and OSHA may refer simply to ‘‘annual’’ costs. PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 29201 are several approaches to look at the cost elements that fit the definition of overhead and there are a range of overhead estimates currently used within the federal government—for example, the Environmental Protection Agency has used 17 percent,12 and government contractors have been reported to use an average of 77 percent.13,14 Some overhead costs, such as advertising and marketing, vary with output rather than with labor costs. 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 those costs 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 (e.g., computer use costs associated with 2 hours for rule familiarization by an existing employee). 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, as was done in a sensitivity analysis in the FEA in support of OSHA’s 2016 final rule on Occupational Exposure to Respirable Crystalline Silica, the base wages would increase cost savings by approximately $238,000 per year, or approximately 2.2 percent above the primary estimate of cost savings.15 12 Cody Rice, U.S. Environmental Protection Agency, ‘‘Wage Rates for Economic Analyses of the Toxics Release Inventory Program,’’ June 10, 2002. 13 Grant Thornton LLP, 2015 Government Contractor Survey. (https://www.grantthornton. com/∼/media/content-page-files/public-sector/pdfs/ surveys/2015/Gov-Contractor-Survey.ashx). 14 For a further example of overhead cost estimates, please see the Employee Benefits Security Administration’s guidance at https:// www.dol.gov/sites/default/files/ebsa/laws-andregulations/rules-and-regulations/technicalappendices/labor-cost-inputs-used-in-ebsa-opr-riaand-pra-burden-calculations-august-2016.pdf. 15 OSHA is reluctant to make changes to the primary estimates in this proposal that create cost savings greater than the original costs estimated for the beryllium final rule. E:\FR\FM\27JNP2.SGM 27JNP2 29202 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules V–12—TOTAL ANNUALIZED COST SAVINGS, BY SECTOR AND SIX-DIGIT NAICS INDUSTRY, FOR ENTITIES AFFECTED BY THE PROPOSED SHIPYARD AND CONSTRUCTION BERYLLIUM STANDARDS; RESULTS SHOWN BY SIZE CATEGORY (3 PERCENT DISCOUNT RATE, 2016 DOLLARS) Application group/NAICS Small entities (SBA-defined) Very small entities (<20 employees) $4,087,412 3,787,418 $3,445,984 2,916,925 $2,420,659 1,998,054 3,081,907 990,140 524,187 34,217 11,283 6,421 All establishments Industry Abrasive Blasting—Construction 238320 ................................ 238990 ................................ Painting and Wall Covering Contractors ............................ All Other Specialty Trade Contractors ................................ Abrasive Blasting—Shipyards * 336611a .............................. Ship Building and Repairing ............................................... Welding in Shipyards ** 336611b .............................. Ship Building and Repairing ............................................... Total Construction Subtotal ......... Shipyard Subtotal ............... ............................................................................................. ............................................................................................. 7,874,830 3,116,125 6,362,909 1,001,423 4,418,712 530,608 Total, All Industries ............. ............................................................................................. 10,990,954 7,364,331 4,949,321 mstockstill on DSK30JT082PROD with PROPOSALS2 Notes: Figures in rows may not add to totals due to rounding. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. Estimated baseline compliance rates were presented in Table V–11 in Section B of this preamble. The estimated costs for the new beryllium standards represented the additional costs necessary for employers to achieve full compliance. The cost of complying with the new beryllium standards’ program requirements therefore depended on the extent to which OSHA believed employers in affected application groups had already undertaken some of the required actions. For example, paragraph (e)(1) of the new beryllium standard for shipyards required employers to provide regulated areas if employee exposures cannot be reduced below the final PEL by using engineering and work practice controls. If all employers in an industry have already provided regulated areas, perhaps by physically isolating high exposure processes and restricting access, then the industry’s compliance rate for that requirement would be 100 percent, and that industry would incur no new costs for this provision under the new beryllium standard for shipyards. Similarly, if all employers in shipyards have already provided regulated areas, cost savings from removing this requirement would not include the avoidance of costs already incurred by employers in shipyards prior to enactment of the new beryllium standards. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 Throughout this section, OSHA presents cost-saving formulas in the text, usually in parentheses, to help explain the derivation of cost-saving estimates for the individual provisions. Because the values used in the formulas shown in the text are shown only to the second decimal place, while the spreadsheets supporting the text are not limited to two decimal places, the calculation using the presented formula will sometimes differ slightly from the totals presented in the tables. Program Cost Savings and Definitions of Affected Worker Populations This subsection presents OSHA’s estimated cost savings from this proposal due to revoking the ancillary provisions in the new beryllium standards for shipyards and construction. The ancillary provisions contained in the new beryllium standards encompass the following nine employer duties, whose removal would each provide potential cost savings: (1) Assess employees’ exposure to airborne beryllium, (2) establish beryllium regulated areas (and competent person in construction), (3) develop a written exposure control plan, (4) provide personal protective work clothing and equipment, (5) establish hygiene areas and practices, (6) implement housekeeping measures, (7) provide medical surveillance, (8) provide medical removal for employees who PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 have developed CBD or been confirmed positive for beryllium sensitization, and (9) provide appropriate training. In addition, OSHA has estimated that employers would incur a modest cost to familiarize themselves with the changes to the ancillary provisions in the final rule as a result of this proposal. The affected worker population varies by each program element, as discussed in each subsection below. For example, in the 2016 FEA the regulated area program requirements triggered by the final PEL of 0.2 mg/m3 would apply to a subset of shipyard workers: those for whom feasible engineering controls and work practices are not adequate. In this PEA, OSHA tracks the cost reductions in the same way and would remove those costs. Cost savings for each removed program requirement are aggregated by employment and by industry. For the most part, unit cost savings do not vary by industry, and any variations are specifically noted. Exposure Assessment Overview of Regulatory Requirements in the New Beryllium Standards Under the new beryllium standards, the employer must assess the exposure of each employee who is, or who may reasonably be expected to be, exposed to airborne beryllium under either a E:\FR\FM\27JNP2.SGM 27JNP2 29203 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules performance option or a scheduled monitoring option. The employer must reassess exposures whenever a change in the production, process, control equipment, personnel, or work practices may reasonably be expected to result in new or additional exposures at or above the action level, or when the employer has any reason to believe that new or additional exposures at or above the action level have occurred. Proposal Cost-Savings Estimates V–13 shows the unit cost savings for avoided initial monitoring and subsequent monitoring. These savings are identical to the unit costs identified in the 2016 FEA when adjusted to 2016 dollars. TABLE V–13—EXPOSURE MONITORING UNIT COST SAVINGS Initial monitoring Item Industrial hygienist daily rate ................................................................................................................................... Total samples collected per day 1 ........................................................................................................................... Industrial hygienist cost per sample ........................................................................................................................ Laboratory cost to process sample ......................................................................................................................... Total direct cost per time weighted average sample 2 ............................................................................................ Total direct cost for two STEL samples 3 ................................................................................................................ Worker productivity loss per sample 4 ..................................................................................................................... HR recordkeeping per sample (includes employee notification) 4 .......................................................................... Total cost savings per time weighted average sample ........................................................................................... Total cost savings for two STEL samples ............................................................................................................... $2,642.59 6 $440.43 $150.79 $591.22 $1,182.44 $4.03 $6.04 $601.28 $1,202.57 Subsequent monitoring $1,321.30 6 $220.22 $150.79 $371.01 $742.01 $4.03 $6.04 $381.07 $762.14 Notes: 1 Assumes two workers sampled per day and three samples (one TWA sample and two STEL samples) taken per worker. 2 Includes the cost for one TWA sample plus laboratory cost to process sample. 3 Includes the cost for two short-term samples plus laboratory costs to process samples. 4 Includes the prorated cost for a single sample from a combination of one TWA and two short-term samples. Sources: OSHA, 2016 (Document ID 2044); BEA, 2016 (Document ID 1970); OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. OSHA estimates that the total annualized exposure assessment cost savings would be $5,359,520 for all affected industries.16 These cost savings, along with the cost savings for each affected NAICS industry, are shown in Table V–18 at the end of this program cost-savings section. mstockstill on DSK30JT082PROD with PROPOSALS2 Beryllium Regulated Areas (and Competent Persons in Construction) Overview of Regulatory Requirements in the New Beryllium Standards The new beryllium standard for shipyards requires the employer to establish and maintain a regulated area wherever an employee’s airborne exposure exceeds, or can reasonably be expected to exceed, either the timeweighted average (TWA) permissible exposure limit (PEL) or short term exposure limit (STEL). A regulated area can include temporary work areas where maintenance or non-routine tasks are performed. There is no regulated area requirement for construction. Employers with employees in regulated areas must comply with specific provisions that both limit employee exposure within the boundaries of the regulated area and 16 The exposure monitoring cost savings are calculated in the cost spreadsheet in the ‘Rule’ tab in column BL through CY. Initial monitoring cost savings begin in column BT, additional monitoring cost savings begin in column CC, and periodic monitoring cost savings begin in column CI. The annualized cost savings are calculated at 7, 3 and 0 percent in columns CQ through CY. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 curb the migration of beryllium outside the area. The new beryllium standard for the construction industry requires that, wherever employees are, or can reasonably be expected to be, exposed to airborne beryllium at levels above the TWA PEL or STEL, the employer designate a competent person to make frequent and regular inspections of job sites, materials, and equipment to implement the written exposure control plan. OSHA assumed that, in restricting access in construction, employers would use the briefing option half of the time and direct access control the other half. Cost Savings Estimates Based on OSHA’s cost estimates in the 2016 FEA (adjusted to 2016 dollars), the cost savings involved in removing the requirements of setting up the regulated area in shipyards include initial set-up time by a supervisor ($329), tape to demarcate the regulated area ($29 annually), and the one-time cost of warning signs to mark the regulated area ($144). There is also the annual cost for daily use of disposable clothing and two disposable respirators by authorized persons who might need to enter the area in the course of their job duties ($6,900). The annual total regulated area cost savings in shipyards for the tape, clothing, and respirators is therefore $6,929, and annualized cost savings is $55 (including the annualized PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 value of the one-time labor and sign costs of $329 and $144). In the new beryllium construction standard, a competent person must implement the written exposure control plan to limit access to work areas and ensure that employees use respiratory protection and personal protective clothing and equipment. A competent person may implement the written exposure control plan either by using the briefing option or the direct access control option. As shown in Table V–14,17 the annual cost savings of the briefing option are $90.16 per at-risk worker. These costs savings are drawn directly from the costs in the 2016 FEA, beginning on page V–169, with the adjustments previously described in this document. The labor cost savings for the supervisor to plan and communicate the plan per job ($10.27 and $4.11, respectively), plus the labor cost savings per job for the production worker to be briefed ($9.66) provides a total job briefing cost savings per job of $24.04. Assuming an average of 15 jobs per year (= 150 working days ÷ 10 day average job length), this equates to a job briefing cost savings per year of ($360.63 = $24.04 cost savings per job briefing × 15 jobs per year). If the average number of workers per crew is 4 workers, then the annual cost savings per worker is 17 Note that numbers may not add due to rounding. E:\FR\FM\27JNP2.SGM 27JNP2 29204 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules ($90.16 = $360.63 cost savings per year ÷ 4 workers). As shown in Table V–14, the annualized cost savings of the direct access control option is $80.45 per atrisk crew member. This cost savings per at-risk crew member includes the avoided supervisor time to set up the area per job ($10.27) which, assuming 15 jobs per year, equals $154.05 per year. Dividing the annual cost savings ($154.05) by the average number of workers per crew (4) equals the per worker cost savings for the avoided supervisor time to set up the area ($38.51). The other unit cost savings are the annualized hazard tape cost savings per worker ($35.55 = $9.48 hazard tape cost savings per job × 15 jobs per year ÷ 4 workers per crew). The annualized warning sign cost savings per worker ($6.38 = $25.54 warning signs cost savings per year ÷ 4 workers per crew), which total an annualized materials cost savings per worker of $41.94. Adding the annualized cost savings per worker to identify and set up the controlled access area ($38.51) to the annualized materials cost savings per worker ($41.94) equals the total cost savings of the direct access control option per worker per year ($80.45). Consequently, as shown in Table V–14, the annualized cost savings of competent persons restricting access to work areas is $85.30 per at-risk crew member (average of $90.16 and $80.45). V–14—UNIT COST SAVINGS FOR NOT IMPLEMENTING WRITTEN EXPOSURE CONTROL PLAN IN CONSTRUCTION Item Value Job Frequency and Crew Size Assumptions Average crew size (workers) ........................................................................... Average job length (days) ............................................................................... Working days per year .................................................................................... Percentage choosing Option 1 ........................................................................ 4 10 150 50% Option 1: Job Briefing Item Hour burden Supervisor time to revise plan per job ............................................................. Supervisor and worker time for briefing per job .............................................. Total per job ..................................................................................................... Total cost savings per worker per year ........................................................... Labor cost Total unit cost $10.27 13.77 24.04 90.16 N/A N/A N/A N/A $10.27 13.77 24.04 90.16 10.27 38.51 N/A N/A N/A N/A N/A N/A 38.51 N/A N/A $9.48 35.55 72.23 25.54 6.38 41.94 41.94 10.27 38.51 9.48 35.55 72.23 25.54 6.38 41.94 80.45 N/A 0.25 0.10 0.35 1.31 Materials cost N/A 85.30 Option 2: Direct Access Control Supervisor time to identify and set up work area per job ............................... Supervisor time to identify and set up work area per worker per year ........... Hazard tape cost savings per job (100 ft.) ...................................................... Hazard tape cost savings per worker per year ............................................... One-time warning signs cost savings (3 signs) ............................................... Annualized warning sign cost savings (3%, 3 years) ...................................... Annualized warning sign cost savings per worker .......................................... Total annualized materials cost savings per worker ....................................... Total cost savings per worker per year ........................................................... 0.25 0.94 N/A N/A N/A N/A N/A N/A N/A Weighted Average Annual Unit Cost Savings per Worker Average annual unit cost savings per worker ................................................. N/A mstockstill on DSK30JT082PROD with PROPOSALS2 Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis Note: Figures in rows may not add to totals due to rounding. OSHA estimates the total annualized cost savings of regulated areas and competent person requirements is $261,099 for all affected shipyard and construction industries, with competent person requirements accounting for $8,464 of the total.18 The cost savings for each affected NAICS industry is shown in Table V–18 at the end of this program cost-savings section. 18 The regulated area cost savings are calculated in the cost spreadsheet in the ‘Rule’ tab in column CZ through FS. The annualized cost savings are calculated at 7, 3, and 0 percent in columns FK through FS. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 Written Exposure Control Plan Overview of Regulatory Requirements in the New Beryllium Standards Under the new beryllium standards, employers are required, for tasks generating airborne beryllium exposure above the action level, to establish and maintain a written exposure control plan. Further, employers must update the exposure control plan when: (A) Any change in production processes, materials, equipment, personnel, work practices, or control methods results or can reasonably be expected to result in new or additional airborne exposures to beryllium; PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 (B) The employer becomes aware that an employee has a beryllium-related health effect or symptom; or (C) The employer has any reason to believe that new or additional airborne exposures are occurring or will occur. Finally, the employer must make a copy of the written exposure control plan accessible to each employee who is, or can reasonably be expected to be, exposed to airborne beryllium. Cost Savings Estimates The estimated cost savings per establishment for an average-sized firm to develop the initial written exposure control plan is $579.39—based on a manager spending 8 hours, at an hourly wage of $72.42 (Human Resources E:\FR\FM\27JNP2.SGM 27JNP2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Managers, SOC: 11–3121), to develop the plan—for an annualized cost of $67.92. In addition, because larger firms with more affected workers will need to develop more complicated written control plans, OSHA estimated that the development of a plan would require an extra thirty minutes of a manager’s time per affected employee. The cost for an extra thirty minutes of a manager’s time per affected employee to develop a more complicated plan is $36.21 (0.5 × $72.42) per affected employee in this PEA, for an annualized cost of $4.50 per employee. Because of various triggers under which the employer would have to update the plan annually after the first year, the Agency further estimated that, on average, managers would need 12 minutes (0.2 hours) per affected employee per quarter—or 48 minutes (4 × 12), which equals 0.8 hours, per affected employee per year—to review and update the plan. Thus, the cost for managers to review and update the plan would be $57.94 (0.8 × $72.42 per affected employee for years 2–10. Finally, each year, 5 minutes of clerical time for providing each employee with a copy of the written exposure control plan, at a clerical wage of $22.53 per hour (File Clerks SOC 43– 4071), comes to an annual cost of $1.88 per employee. OSHA estimates that the total annualized cost savings for removing the requirements for development, implementation, distribution, and update of a written exposure control plan is $233,032 for all affected industries in shipyards and construction.19 These cost savings, along with the cost savings for each affected NAICS industry, are shown in Table V–18 at the end of this program cost-savings section. Personal Protective Clothing and Equipment mstockstill on DSK30JT082PROD with PROPOSALS2 Overview of Regulatory Requirements in the New Beryllium Standards Under the new beryllium standards, personal protective clothing and equipment are required for workers in shipyards and construction: 1. Whose airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL; or 2. Where employees’ skin can reasonably be expected to be exposed to beryllium. 19 The written exposure control plan cost savings are calculated in the cost spreadsheet in the ‘Rule’ tab in column LG through ML. The annualized cost savings are calculated at 7, 3 and 0 percent in columns MA through ML. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 For the most part, the cost savings for PPE follow the cost estimates in the 2016 FEA. However, there are two exceptions. First, the new beryllium standards require shipyard welders to wear gloves because it is reasonable to expect that their skin will be exposed to beryllium. In the 2016 FEA OSHA listed the shipyard welders’ compliance rate with this PPE requirement at 0 percent, inadvertently suggesting that shipyard welders were not already wearing gloves when, in fact, all shipyard welders are already required to wear gloves. In preparing this proposal, OSHA reviewed its compliance rates and discovered the oversight.20 As a result of this review, OSHA has preliminarily adjusted estimated shipyard welding compliance rates with the PPE requirement from 0 percent in the FEA to 100 percent for this proposal and calculated proposed cost savings using this preliminary estimate. Second, for the same reason as with welders, the beryllium standards also require abrasive blasters in shipyards and construction to wear gloves as PPE. In the 2016 FEA, OSHA estimated that abrasive blasters in construction and shipyards had a 75 percent compliance rate with the PPE requirements in the beryllium standard. However, upon review, OSHA has preliminarily revised this estimate because the 2016 FEA inadvertantly did not take account of the fact that relevant PPE was actually already required by other OSHA standards for abrasive blasters in construction and shipyards. See 1915.34(c)(3)(iv); 1926.57(f)(5)(v). Additionally, OSHA has determined that relevant PPE is required by the existing Personal Protective Equipment standard (1926.95) and the existing Hand and Body Protection standard (1915.157) to protect blasting helpers in construction and shipyards, respectively, from dermal exposure to beryllium dust. Therefore, for the purpose of calculating cost savings, the Agency now preliminarily estimates that all affected employees are already required to be equipped with PPE 100 percent of the time when exposed to beryllium. 29205 for construction and shipyard employers in the beryllium final rule. Hygiene Areas and Practices Overview of Regulatory Requirements in the New Beryllium Standards The new beryllium standards require affected shipyard and construction employers to provide readily accessible washing facilities to remove beryllium from the hands, face, and neck of each employee exposed to beryllium. The employer must also provide a designated change room in workplaces where employees would have to remove their personal clothing and don the employer-provided protective clothing. The employer must ensure that each employee exposed to beryllium uses these facilities when necessary. Cost Savings Estimates The Agency included in the 2016 FEA no additional cost for readily accessible washing facilities, under the expectation that employers already have such facilities in place. OSHA notes that employers of abrasive blasters exposed to beryllium in shipyards and construction work are typically already required to provide readily accessible washing facilities to comply with other OSHA standards.21 Therefore, OSHA is estimating no cost savings from washing facilities due to this proposal. The Agency is, however, including cost savings for the removal of requirements to add a change room and segregated lockers. OSHA included these costs in the 2016 FEA for acquisition of portable structures, for employers who would need to add these. OSHA estimates that portable structures, adequate for 10 workers per establishment, could be rented annually for $3,579 (adjusted from Lerch, 2003) and that lockers could be procured for a capital cost of $448—or $53 annualized—per establishment (adjusted from Lab Safety, 2004). This results in an annualized cost of $4,027 ($3,579 + $448) per facility for a portable change room with lockers. OSHA estimated in the 2016 FEA that 10 percent of affected establishments will be unable to meet the final TWA PEL and will, therefore, require change Cost Savings Estimates As discussed above, given the existing PPE requirements, OSHA estimates that there are no estimated cost savings as a result of revoking the PPE requirements 20 Upon review, the Agency now realizes that, under 1915.157(a) for PPE (as well as under OSHA guidance for shipyards during welding), employers must provide gloves to protect against burns. In addition, OSHA now understands that gloves for shipyard welders are standard industry practice. PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 21 OSHA’s shipyard standard at 29 CFR 1915.58(e) requires handwashing facilities ‘‘at or adjacent to each toilet facility’’ and ‘‘equipped with . . . running water and soap, or with waterless skin-cleansing agents that are capable of . . . neutralizing the contaminants to which the employee may be exposed.’’ OSHA’s construction standard at 29 CFR 1926.51(f)(1) requires ‘‘adequate washing facilities for employees engaged in . . . operations where contaminants may be harmful to the employees. Such facilities shall be in near proximity to the worksite and shall be so equipped as to enable employees to remove such substances.’’ E:\FR\FM\27JNP2.SGM 27JNP2 29206 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules rooms. The Agency expected that, in many cases, a worker will simply be adding, and later removing, a layer of clothing (such as a lab coat, coverall, or shoe covers) at work, which might involve no more than a couple of minutes a day. However, in other cases, a worker may need a full clothing change. Taking all these factors into account, OSHA estimated that a worker using a change room would need 5 minutes per day to change clothes. The annual cost per employee to change clothes (in a change room) is $480.54. This cost was based on a production worker earning $24.16 an hour (Production Occupation, SOC: 51–0000) and taking 5 minutes per day to change clothes for 250 days per year ((5/60) × $24.16 × 250). The Agency estimates the total annualized cost savings of removing the provision on hygiene areas and practices to be $1,573,230 for all affected establishments.22 The breakdown of these cost savings by NAICS code can be seen in Table V–18 at the end of this program cost-savings section. Housekeeping Overview of Regulatory Requirements in the New Beryllium Standards Housekeeping includes following the written exposure control plan, promptly cleaning up all spills and emergency releases of beryllium, and, when cleaning, using methods such as HEPAfiltered vacuuming. The new beryllium standards prohibits cleaning methods that could cause dust to be airborne, such as dry sweeping or compressed air without adequate LEV, unless proper respiratory equipment is worn. All methods must be in accordance with the written exposure control plan. When a shipyard or construction employer transfers materials containing beryllium to another party for use or disposal, the employer must provide the recipient with a copy of the warning label language. Cost-Savings Estimates OSHA estimated the following costs in the 2016 FEA in shipyards (amounts adjusted for 2016 dollars): A one-time annualized cost per worker of a HEPAfiltered vacuum ($614); the annual cost per worker of the additional time needed to perform housekeeping ($503); and the annual cost of the warning labels per worker ($5). The total annual per-employee cost was $509, updated to 2016 dollars. Upon further review, OSHA preliminarily determined that affected employers in construction are already required to minimize dust accumulations through compliance with 29 CFR 1926.57(f)(7), which requires that dust not be allowed to accumulate and that spills be cleaned up promptly, and 29 CFR 1926.57(f)(3) and (f)(4), which require exhaust ventilation and dust collection and removal systems in abrasive blasting operations in construction. Similarly, the general industry Ventilation standard requires that dust not be allowed to accumulate and that spills be cleaned up promptly in abrasive blasting in shipyards (see 29 CFR 1910.94(a)(7), 1910.5(c)). For these reasons, OSHA preliminarily determined that affected employers would already have to perform some housekeeping, and for the purpose of the cost savings estimates in this proposal, OSHA is only including a cost savings for housekeeping in abrasive blasting operations in construction and shipyards for the cost of HEPA-filtered vacuums and similar equipment. The Agency estimates that there are 11,460 total affected employees in blasting in construction and shipyards, as well as 26 affected employees in shipyard welding, and that the total annualized cost savings in this proposal of removing this ancillary provision is $901,335.23 Of this, $886,008 is attributed to blasting in construction and shipyards and encompasses only the cost savings for HEPA vacuums and associated equipment. As shown in Table V–11 above, OSHA preliminarily determined that employers in these operations are already fully compliant with any labor requirements due to existing requirements. The Agency has preliminarily determined that the shipyard welding operation would not already be compliant with any labor requirements; thus, the $15,327 estimated cost savings in this sector is attributed to both labor and equipment. The breakdown of these cost savings by NAICS code is shown in Table V–18 at the end of this program cost-savings section. Medical Surveillance Overview of Regulatory Requirements in the New Beryllium Standards The new beryllium standards require affected employers in shipyards and construction to make medical surveillance available at a reasonable time and place, and at no cost, to the following employees: 1. Employees who have been, or are reasonably expected to be, exposed at or above the action level for more than 30 days in the last 12 months; 2. Employees who show signs or symptoms of chronic beryllium disease (CBD) or signs or symptoms of other beryllium-related health effects, such as rashes; 3. Employees exposed to beryllium during an emergency; and 4. Employees whose most recent written medical opinion required by this standard recommends periodic medical surveillance. Cost Savings Estimates OSHA previously identified the fees and other medical expenses that employers would incur to comply fully with the medical surveillance requirements in the new standards. Those costs would be saved under this proposal and are expressed as cost savings in the tables that follow. Unit Cost Savings for Medical Surveillance Table V–15 below lists the direct unit cost savings for removing initial medical surveillance activities including: Work and medical history, physical examination, pulmonary function test, BeLPT, LDCT scan, and additional tests. TABLE V–15—DIRECT UNIT COST SAVINGS FOR THE MEDICAL SURVEILLANCE PROGRAM mstockstill on DSK30JT082PROD with PROPOSALS2 Item Value Initial Medical Costs Work and medical history .................................................................................................................................................................... Physical examination (skin and respiratory tract) ............................................................................................................................... 22 The hygiene areas and practices cost savings are calculated in the cost spreadsheet in the ‘Rule’ tab in column NO through OU. The annualized cost VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 savings are calculated at 7, 3 and 0 percent in columns OJ through OU. 23 The housekeeping cost savings are calculated in the cost spreadsheet in the ‘Rule’ tab in column PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 $42.83 $128.48 OV through PW. The annualized cost savings are calculated at 7, 3 and 0 percent in columns PO through PW. E:\FR\FM\27JNP2.SGM 27JNP2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules 29207 TABLE V–15—DIRECT UNIT COST SAVINGS FOR THE MEDICAL SURVEILLANCE PROGRAM—Continued Item Value Pulmonary function test ....................................................................................................................................................................... Cost Savings of additional tests deemed appropriate by PLHCP ...................................................................................................... Percent of workers requiring additional tests ...................................................................................................................................... Total initial medical cost savings per worker ...................................................................................................................................... $60.21 $220.19 10% $253.54 Lost Work Time Employee hours ................................................................................................................................................................................... Employee wage ................................................................................................................................................................................... HR manager hours .............................................................................................................................................................................. HR manager wage ............................................................................................................................................................................... Supervisor hours .................................................................................................................................................................................. Supervisor wage .................................................................................................................................................................................. Cost Savings of Lost work time ........................................................................................................................................................... 2.08 $24.16 0.25 $72.42 0.33 $41.08 $82.13 Total Medical and Lost Work Time Cost Savings per Employee Total cost savings per employee ......................................................................................................................................................... Annualized total cost savings per employee ....................................................................................................................................... $335.68 $211.50 BeLPT BeLPT .................................................................................................................................................................................................. Employee hours ................................................................................................................................................................................... Employee wage ................................................................................................................................................................................... Cost Savings of Lost work time ........................................................................................................................................................... Unit BeLPT cost savings per employee .............................................................................................................................................. Annualized per employee cost savings of biennial BeLPTs for 10 years 1 ........................................................................................ $313.77 0.08 $24.16 $2.01 $315.78 $198.97 LDCT Scan LDCT scan ........................................................................................................................................................................................... Review LDCT Scan with specialist ...................................................................................................................................................... Employee hours ................................................................................................................................................................................... Employee wage ................................................................................................................................................................................... Cost Savings of Lost work time ........................................................................................................................................................... Unit LDCT scan cost savings per employee ....................................................................................................................................... Annualized per employee cost savings of biennial LDCT scan for 10 years 2 ................................................................................... $847.74 $275.24 3.50 $24.16 $84.56 $1,207.54 $612.69 Total Annualized cost savings per employee Total ..................................................................................................................................................................................................... $1,023.17 Notes: 1 Calculated as the annualized discounted present value of $1,640 for biennial BeLPTs. See following discussion for more detail. 2 Calculated as the annualized discounted present value of $3,363 for bi-annual CT scans. See following discussion for more detail. Sources: National Jewish Medical Center, 2005 (Document ID 2001); Intellimed International, 2003, (Document ID 2012); Cost Helper, 2010; (Document ID 1990); BLS, 2017a; BLS, 2017c; BLS, 2016c (Document ID 1980) ; BEA, 2017 (Document ID 1970); US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. mstockstill on DSK30JT082PROD with PROPOSALS2 Biennial Examination and Testing and BeLPT Testing The fees, in 2016 dollars, for the total unit annual cost savings for the avoided medical examinations and tests (excluding the BeLPT test) and the time required for both the employee and the supervisor is $335.68. The total unit annual cost savings for the avoided BeLPT costs is $315.78. Because the required medical examination and the BeLPT would each typically occur only every two years, OSHA calculates the annualized cost savings of removing that examination and the BeLPT test as follows: taking the present value (PV) of the costs over 10 years and then annualizing them over 10 years at 3 percent. Using this methodology, the VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 unit annualized biennial exam cost savings are $211.50 and the unit annualized BeLPT cost savings are $198.97. LDCT Scans The new beryllium standards require that a low-dose computed tomography (LDCT scan) be offered to employees eligible for medical surveillance whenever recommended by the licensed physician. As it did with the 2016 FEA costs for LDCT scans, OSHA has based its cost saving estimates on the eligible employees receiving LDCTs every two years. The total yearly cost savings for biennial LDCT scans consists of avoided medical costs totaling $1,122.98, PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 comprised of an $847.74 fee for the scan (CT-scan, 2012, Document ID 0568) and the cost of a specialist to review the results, which OSHA estimates would cost $275.24. The Agency estimates an additional cost savings of $84.56 of lost work time,24 for a total of $1,207.54 ($1,122.98 + $84.56). The annualized cost savings for avoided biennial CT scans is $364.00. The annualized total 24 Time cost is calculated using a wage rate of $23.87 (Production Worker, SOC 51–0000) and a total of 3.5 hours lost: 60 minutes to travel to and from the appointment, 60 minutes to administer the scan, 60 minutes to travel to and from a meeting with a specialist to review the results and 30 minutes to review the results with the specialist (updated from ERG, 2013) (Document ID 1781). E:\FR\FM\27JNP2.SGM 27JNP2 29208 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules cost savings per employee is $612.69 ($430.13 + $139.65 + $42.91).25 Number of Workers Requiring LDCT Scans In the 2016 FEA, OSHA estimated that the number of workers that the physician recommends to receive LDCT scans would be 25 percent of workers who are exposed above 0.2 in the exposure profile. The estimate of 25 percent was based on the fact that roughly this percentage of workers has 15+ years of job tenure in the durable manufacturing sector (BLS, 2013, Document ID 0672) and that all those with 15+ years of job tenure and current exposure over 0.2 would have had at least 5 years of such exposure in the past. OSHA uses the same estimate in calculating the cost savings in this PEA. CBD Diagnostic Center Referrals and Evaluations For purposes of costing this consultation, OSHA used the marginal costs of a physician’s time (wages plus fringe benefits) of $132.79 per hour (Physicians and Surgeons, All Other, SOC: 29–1069); the physician’s cost for the 15 minute consultation is therefore $33.20 ((15/60) × $132.79). Similarly the worker’s time for this consultation, with a production worker’s hourly wage of $24.16 (updated from Production Occupations, SOC: 51–0000), results in a cost for the employee’s time of $6.04 ((15/60) × $24.16). Hence the total employer cost savings of avoiding this consultation is $39.24 ($33.20 + $6.04). These cost savings are included in Table V–16 below. Table V–16 also lists the direct unit cost savings for a clinical evaluation with a specialist at a CBD diagnostic center. TABLE V–16—UNIT COST SAVINGS FOR MEDICAL EVALUATION AND TESTING PER WORKER REFERRED TO A CBD DIAGNOSTIC CENTER Item Value All Workers Referral examination for new patients 1 .............................................................................................................................................. Employer physician hours ................................................................................................................................................................... Employer physician wage .................................................................................................................................................................... $6,456.80 0.25 $132.79 Travelling Workers Employee hours ................................................................................................................................................................................... Employee wage ................................................................................................................................................................................... Lost work time 2 ................................................................................................................................................................................... Cost-savings of travel & living expenses per employee 3 ................................................................................................................... 24.25 $24.16 $619.09 $620.71 Total cost savings per travelling employee .................................................................................................................................. $7,696.60 Workers Tested Locally Employee hours ................................................................................................................................................................................... Employee wage ................................................................................................................................................................................... Lost work time 4 ................................................................................................................................................................................... 4.25 $24.16 $135.88 Total cost savings per non-travelling employee ........................................................................................................................... $6,592.68 Weighted Average—All Workers Average cost-savings per employee ................................................................................................................................................... $7,420.62 1 Includes mstockstill on DSK30JT082PROD with PROPOSALS2 an exam with a specialist, blood tests, plethysmography, a pulmonary stress test, bronchoscopy with lung biopsy, and a chest CT scan. The unit costs of the components of the evaluation are considered confidential by Healthcare Facility A. 2 For 3⁄4 of eligible workers, assumes three 8-hour work days for the employee at $24.16/hour as well as a 15 minute discussion between the employee and the physician at $132.79/hour. See following discussion for more detail. 3 Includes out-of-town travel costs and $53/day living expenses for 3⁄4 of workers. See following discussion for more detail. 4 For 1⁄4 of eligible workers, assumes four hours for the employee at $24.16/hour as well as a 15 minute discussion between the employee and the physician at $132.79/hour. See following discussion for more detail. Sources: Healthcare Facility A, 2014 (Document ID 2044): U.S. DOT, 2012 (PEA) (Document ID 2031); OSHA Estimate (PEA) (Document ID 0385); BLS, 2016a (Document ID 1978); BLS, 2016 (Document ID 1980); BEA, 2016 (Document ID 1970): U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. In addition, as shown in Table V–16, there are cost savings for avoided lost productivity and travel. The total cost of a clinical evaluation with a specialist at a CBD diagnostic center is equal to the cost of the examination plus the cost of lost worktime and the cost for the employee to travel to the CBD diagnostic center. For the two latter types of costs, 75 percent were based on out-of-town travel to a CBD diagnostic center and 25 percent were based on a local CBD diagnostic center. The resulting weighted-average cost-saving estimates of $7,420.62 for testing at a CBD diagnostic center are presented in Table V–16. Employees who are not already diagnosed with CBD can be referred to a CBD diagnostic center if the employee is confirmed positive (sensitized to beryllium). OSHA estimated in the 2016 FEA that during the first year that the medical surveillance provisions are in effect 14.0 percent of the 640 workers who are tested for beryllium sensitization will be confirmed positive for sensitization (through BeLPT tests) and referred to a CBD diagnostic center. 25 The components represent the annualized unit cost-saving elements of the LDCT scan, reviewing the LDCT scan with a specialist, and lost work time. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\27JNP2.SGM 27JNP2 29209 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Based on these unit costs and the number of employees requiring medical surveillance estimated above, OSHA estimated that the removal by this proposal of the medical surveillance and referral provisions would result in an annualized total cost savings of $1,414,112.26 These cost savings by NAICS code are shown in Table V–18 at the end of the program cost-savings section. Medical Removal Provision Overview of Regulatory Requirements in the New Beryllium Standards For affected construction and shipyard establishments, if an employee works in a job with airborne exposure at or above the action level, is diagnosed with CBD or confirmed positive, and provides documentation of the employee’s diagnosis of CBD or confirmed positive status to the employer, that employee is eligible for medical removal and has two choices: i. Removal from the current job, or ii. Remain in a job with airborne exposure at or above the action level while wearing a respirator in accordance with paragraph (g) of the standards. If the employee chooses removal, the employee must accept comparable work if such work is available. If comparable work is not available the employer must offer the employee paid leave for six months or until such time as comparable work becomes available, whichever comes first. During that sixmonth period, whether the employee is re-assigned or placed on paid leave, the employer must continue to maintain the employee’s base earnings, seniority and other rights and benefits that existed at the time of removal. understand the ancillary provisions and the other new and revised components of the applicable new standard. Cost Savings Estimates Revoking the medical removal provision would provide cost savings due to workers no longer being eligible for medical removal. OSHA estimated that, under the January 2017 final standards for construction and shipyards, 332 workers would be eligible for medical removal in the first year and 26 workers each year would be eligible in subsequent years. OSHA estimated an average medical removal cost per worker assuming that 75 percent of firms would be able to find the employee an alternate job, and the remaining 25 percent of firms would not. With updated hourly wages for a production worker of $24.16 (Production Occupations, SOC: 51– 0000) and for a clerical worker of $22.53 (File Clerks, SOC: 43–4071), the weighted average of these costs is $7,266 per worker (0.75 × $1,363 + $273 27) + 0.25 × ($24,161). Based on the above unit costs, OSHA estimates that revoking the medical removal provision in this proposal would result in an annualized total cost savings of $471,601.28 The breakdown of these cost savings by NAICS code can be seen in Table V–18 at the end of this program cost section. Cost Estimates Familiarization Costs Overview of Regulatory Requirements in the New Beryllium Standards In the new beryllium standards, OSHA included familiarization costs to account for employers’ time to As some employers may already have been reviewing the 2016 FEA, in an effort to be conservative, OSHA has not assumed any familiarization cost savings. In the 2016 FEA, the amount of familiarization time required depended, in part, on the range of berylliumrelated operations. As the focus of this proposal is on removing the ancillary requirements, this variability of required familiarization time has been largely eliminated. Employers would thus only need to spend a brief amount of time reviewing this proposal (if it became final) to look at the changes from the 2016 FEA. Therefore, OSHA expects that if this proposal is adopted, employers would spend one-tenth of one hour per firm (or 6 minutes) reviewing its changed requirements. Table V–17 shows the unit costs, by establishment size, of reviewing the changes in this proposal as a result of removing the ancillary provisions. These costs will likely be one-time costs incurred during the first year in which this PEA becomes final, but the aggregate costs are annualized for consistency with the other estimates for this proposal. Based on the unit familiarization (negative) cost savings in Table V–17, the total annualized familiarization costs of this proposal are estimated to be $1,346.29 The breakdown of these costs by NAICS code can be seen in Table V–18 at the end of this program cost-savings section. TABLE V–17—FAMILIARIZATION—CONSTRUCTION AND SHIPYARDS ASSUMPTIONS AND UNIT COST SAVINGS Small (<20) Hours per establishment .............................................................................................................. Total cost savings per establishment .......................................................................................... Annualized cost savings .............................................................................................................. 0.1 ($4.11) ($0.48) Medium (20–499) 0.1 ($4.11) ($0.48) Large (500+) 0.1 ($4.11) ($0.48) Note: Based on supervisor wage of $41.08, inclusive of benefits (BLS, 2016) (Document ID 1980). Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis, based on OSHA (2017) (Document ID 2044). Training mstockstill on DSK30JT082PROD with PROPOSALS2 Overview of Regulatory Requirements in the New Beryllium Standards As specified in both the new shipyard and construction beryllium standards and the existing OSHA standard 29 CFR 26 The medical surveillance cost savings are calculated in the cost spreadsheet in the ‘Rule’ tab in column FT through KK. The annualized cost savings are calculated at 7, 3 and 0 percent in columns JT through KK. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 1910.1200 on hazard communication, the employer must provide initial training and repeat annual training for each employee who is, or who can reasonably be expected to be, exposed to airborne beryllium. The initial training is required by the time of initial assignment, and will be applicable to affected shipyard and construction employers. 27 The cost of the salary differential for 6 months of work in a job with exposures less than the AL plus one month of re-training. 28 The medical removal cost savings are calculated in the cost spreadsheet in the ‘Rule’ tab in column KL through LF. The annualized cost savings are calculated at 7, 3 and 0 percent in columns KX through LF. 29 The familiarization cost savings are calculated in the cost spreadsheet in the ‘Rule’ tab in column TP through UZ. The annualized cost savings are calculated at 7, 3 and 0 percent in columns UF through UZ. PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\27JNP2.SGM 27JNP2 29210 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Cost Savings Estimates mstockstill on DSK30JT082PROD with PROPOSALS2 The cost savings track the training costs in the 2016 FEA to educate employees about the new requirements of beryllium standards. This additional training would not be necessary if the only impact on construction and shipyards is a change to the PEL. In the 2016 FEA, OSHA determined that training, which includes hazard communication training, will likely be conducted by in-house safety or supervisory staff with the use of training modules and videos. It is estimated that this training will last, on average, eight hours. (Note that this estimate does not include the time taken for hazard communication training that is already required by 29 CFR 1910.1200.) The Agency anticipated that establishments will be able to purchase sufficient training materials at an average cost of VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 $2.12 per worker, encompassing the cost of handouts, video presentations, and training manuals and exercises. For initial and periodic training, OSHA estimated an average class size of five workers (each at a wage of $24.16 (updated from Production Occupations, SOC: 51–0000)) with one instructor (at a wage of $41.34 (Median Wage for Training and Development Specialists, SOC: 13–1151)) over an eight hour period. The estimated per-worker cost of initial training is $259.43 (= (8 × $24.16) + (8 × $41.34/5) + $2.12).30 Annual retraining of workers is also required by the new beryllium standards. OSHA estimated the same unit costs as for initial training, so retraining would require the same perworker cost of $259.43. 30 Note that wages are rounded and may not total exactly. PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 Finally, using these calculations, as well as accounting for industry-specific baseline compliance rates (from Section V.B. of this PEA), and based on a 25.7 percent new hire rate (BLS 2016a, annual manufacturing new hire rate),31 OSHA preliminarily estimates that the removal of the training requirements in this proposal would result in an annualized total cost savings of $778,371.32 The breakdown of these cost savings by NAICS code is presented in Table V–18 below. 31 OSHA used the same hire rate for abrasive blasters in construction, judging that abrasive blasters in construction are more like skilled production workers (including abrasive blasters) in manufacturing and shipyard than day laborers in construction. 32 The training cost savings are calculated in the cost spreadsheet in the ‘Rule’ tab in column PX through QO. The annualized cost savings are calculated at 7, 3 and 0 percent in columns QJ through QO. E:\FR\FM\27JNP2.SGM 27JNP2 VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 PO 00000 ....................................................... ....................................................... Ship Building and Repairing ......... Ship Building and Repairing ......... Painting and Wall Covering Contractors. All Other Specialty Trade Contractors. Industry Frm 00031 Total, All Industries ....................... 1,888,339 ¥486 3,926,250 1,433,271 2,994 5,359,520 ¥1,011 ¥335 ¥3 1,430,277 $2,037,910 ¥$525 ¥332 Exposure assessment Rule familiarization ¥1,346 Beryllium work areas *** Medical surveillance 0 $0 497,544 $536,953 0 261,099 8,464 252,635 172 Total 0 0 0 0 Welding—Shipyards ** 252,463 1,414,112 1,034,497 379,615 2,762 376,852 Abrasive Blasting—Shipyards * 4,071 $4,393 Abrasive Blasting—Construction Regulated areas 471,601 345,650 125,951 36 125,915 166,241 $179,409 Medical removal provision 233,032 170,187 62,845 2,139 60,706 81,852 $88,335 Written exposure control plan 0 0 0 0 0 0 $0 Protective work clothing & equipment **** 1,573,230 1,176,038 397,192 3,684 393,508 565,618 $610,420 Hygiene areas and practices 901,335 649,430 251,905 15,327 236,578 312,345 $337,085 Housekeeping Note: Totals may not sum due to rounding. Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. *** The 2016 FEA also included a requirement for beryllium work areas. As that provision only applied to general industry, it is not relevant, nor discussed, in this proposal, and all references show a zero-dollar cost savings. ....................................................... Construction Subtotal .................... Shipyard Subtotal .......................... 336611b ........................................ 336611a ........................................ 238990 .......................................... 238320 .......................................... Application group/NAICS [In 2016 dollars using a 3 percent discount rate] 778,371 565,325 213,046 7,106 205,940 271,895 $293,431 Training 10,990,954 7,874,830 3,116,125 34,217 3,081,907 3,787,418 $4,087,412 Total program cost savings TABLE V–18—ANNUALIZED COST SAVINGS OF PROGRAM REQUIREMENTS FOR INDUSTRIES AFFECTED BY THE PROPOSED BERYLLIUM STANDARD BY SECTOR AND SIX-DIGIT NAICS INDUSTRY mstockstill on DSK30JT082PROD with PROPOSALS2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Fmt 4701 Sfmt 4702 E:\FR\FM\27JNP2.SGM 27JNP2 29211 29212 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Total Annualized Cost Savings As shown in Table V–19, the total annualized cost savings of this proposal, using a 3 percent discount rate, is estimated to be about $11.0 million. TABLE V–19—ANNUALIZED COST SAVINGS TO INDUSTRIES AFFECTED BY THE PROPOSED BERYLLIUM STANDARD, BY SECTOR AND SIX-DIGIT NAICS INDUSTRY [In 2016 dollars using a 3 percent discount rate] Application group/NAICS Engineering controls and work practices Industry Program costs savings Respirator costs Total cost savings Abrasive Blasting—Construction 238320 ................................ 238990 ................................ Painting and Wall Covering Contractors ........ All Other Specialty Trade Contractors ........... $0 0 $0 0 $4,087,412 3,787,418 $4,087,412 3,787,418 0 0 3,081,907 3,081,907 0 0 34,217 34,217 Abrasive Blasting—Shipyards 336611a .............................. Ship Building and Repairing ........................... Welding—Shipyards 336611b .............................. Ship Building and Repairing ........................... Total Construction Subtotal ......... Shipyard Subtotal ............... ......................................................................... ......................................................................... 0 0 0 0 7,874,830 3,116,125 7,874,830 3,116,125 Total, All Industries ............. ......................................................................... 0 0 10,990,954 10,990,954 Note: Figures in rows may not add to totals due to rounding. Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. Time Distribution of Costs OSHA analyzed the stream of (unannualized) compliance costs for the first ten years after the rule would take effect. As shown in Table V–20, compliance cost savings are expected to decline from year 1 to year 2 by more than half after the initial set of capital and program start-up expenditures has been incurred. Costs are then essentially flat with relatively small variations for the following years. TABLE V–20—DISTRIBUTION OF UNDISCOUNTED COMPLIANCE COST SAVINGS BY YEAR [2016 Dollars] Program cost savings Year 1 ............................................................. 2 ............................................................. 3 ............................................................. 4 ............................................................. 5 ............................................................. 6 ............................................................. 7 ............................................................. 8 ............................................................. 9 ............................................................. 10 ........................................................... Respirators $24,009,232 8,173,911 8,951,304 8,332,508 8,834,132 8,418,670 8,770,344 8,466,731 8,733,739 8,494,159 Rule familiarization Engineering $0 0 0 0 0 0 0 0 0 0 ¥$11,484 0 0 0 0 0 0 0 0 0 $0 0 0 0 0 0 0 0 0 0 Total $23,997,748 8,173,911 8,951,304 8,332,508 8,834,132 8,418,670 8,770,344 8,466,731 8,733,739 8,494,159 mstockstill on DSK30JT082PROD with PROPOSALS2 Note: Figures in rows may not add to totals due to rounding. Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. Table V–21 breaks out total costs by each application group for the first ten years. Each application group follows VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 the same pattern of a sharp decrease in compliance costs between years 1 and 2, PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 and then remains relatively flat for the remaining years. E:\FR\FM\27JNP2.SGM 27JNP2 29213 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules TABLE V–21—TOTAL UNDISCOUNTED COST SAVINGS OF THE NEW BERYLLIUM STANDARDS BY YEAR [2016 Dollars] Year Application group 1 Abrasive Blasting—Construction ...................... Abrasive Blasting—Shipyards ........................... Welding—Shipyards ...... Total ........................ 2 3 4 5 6 7 8 9 10 $17,383,709 $5,814,352 $6,382,594 $5,930,492 $6,296,968 $5,993,216 $6,250,595 $6,028,337 $6,223,603 $6,048,622 6,547,501 66,538 2,331,174 28,385 2,538,176 30,533 2,373,155 28,861 2,506,984 30,180 2,396,331 29,123 2,489,764 29,985 2,409,125 29,268 2,480,258 29,877 2,416,188 29,348 23,997,748 8,173,911 8,951,304 8,332,508 8,834,132 8,418,670 8,770,344 8,466,731 8,733,739 8,494,159 Note: Figures in rows may not add to totals due to rounding. Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. References Domestic Product. February 26, 2016. Available at: http://www.bea.gov/iTable/ iTable.cfm?reqid=9&step=3&isuri= 1&903=13#reqid=9&step=3&isuri= 1&904=2013&903=13&906=a&905= 2015&910=x&911=1 (Accessed February 26, 2016). (Document ID 1970). BLS, 2017a. Occupational Employment Statistics Survey—May 2016 (Released March 31, 2017). Available at: http:// www.bls.gov/oes/tables.htm (Accessed April 1, 2017). BLS, 2017c. 2017 Employer Costs for Employee Compensation, U.S. Bureau of Labor Statistics. Available at: http:// www.bls.gov/ncs/ect/. Telephone Interview between Angie Lerch, Rental Coordinator, Satellite Shelters, Inc. and Robert Carney of ERG (Document ID 0562). OSHA, 2016. Cost of Compliance (Chapter V) of the Final Economic Analysis (‘‘2016 FEA’’; Document ID 2042). OSHA, 2017. Excel Spreadsheets of Economic Costs, Impacts, and Benefits in Support of OSHA’s Preliminary Economic Analysis (PEA) for the Proposed Deregulatory Action of Removing the Ancillary Revisions for the Maritime Sector and the Construction Sector from the Scope of the New Beryllium Standards: May 2017. Appendix V–A Summary of Annualized Costs by Entity Size Under Alternative Discount Rates In addition to using a 3 percent discount rate in its cost analysis, OSHA estimated compliance cost savings using alternative discount rates of 7 percent and 0 percent. Tables V–22 and V–23 present—for 7 percent and 0 percent discount rates, respectively— total annualized cost savings for affected employers by NAICS industry code and employment size class (all establishments, small entities, and very small entities). As shown in these tables, the choice of discount rate has only a minor effect on total annualized compliance costs—for example, annualized costs for all establishments increase from $11.0 million using a 3 percent discount rate to $11.5 million using a 7 percent discount rate, and decline to $10.8 million using a 0 percent discount rate. V–22—TOTAL ANNUALIZED COST SAVINGS, FOR ENTITIES AFFECTED BY THE NEW BERYLLIUM STANDARDS; RESULTS SHOWN BY SIZE CATEGORY, BY SECTOR, AND BY SIX-DIGIT NAICS INDUSTRY [7 percent discount rate, in 2016 dollars] Application group/NAICS All establishments Industry Small entities (SBA-defined) Very small entities (<20 employees) Abrasive Blasting—Construction 238320 ................................ 238990 ................................ Painting and Wall Covering Contractors ........................ All Other Specialty Trade Contractors ............................ $4,280,908 3,966,713 $3,605,768 3,050,668 $2,527,303 2,084,462 3,217,754 1,026,481 542,567 35,196 11,599 6,601 Abrasive Blasting—Shipyards * 336611a .............................. Ship Building and Repairing ........................................... Welding—Shipyards ** 336611b .............................. Ship Building and Repairing ........................................... Total mstockstill on DSK30JT082PROD with PROPOSALS2 Construction Subtotal ......... Shipyard Subtotal ............... ......................................................................................... ......................................................................................... 8,247,620 3,252,950 6,656,436 1,038,080 4,611,766 549,167 Total, All Industries ............. ......................................................................................... 11,500,570 7,694,516 5,160,933 Notes: Figures in rows may not add to totals due to rounding. ‘‘NA’’ indicates not applicable because OSHA determined there were no affected entities in a particular industry of a particular size. Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 E:\FR\FM\27JNP2.SGM 27JNP2 29214 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules TABLE V–23—TOTAL ANNUALIZED COST SAVINGS, FOR ENTITIES AFFECTED BY THE NEW BERYLLIUM STANDARDS; RESULTS SHOWN BY SIZE CATEGORY, BY SECTOR, AND BY SIX-DIGIT NAICS INDUSTRY [0 percent discount rate, in 2016 dollars] Application group/NAICS All establishments Industry Small entities (SBA-defined) Very small entities (<20 employees) Abrasive Blasting—Construction 238320 ................................ 238990 ................................ Painting and Wall Covering Contractors ........................ All Other Specialty Trade Contractors ............................ $4,002,659 3,708,886 $3,375,763 2,858,041 $2,373,392 1,959,635 3,021,057 973,324 515,607 33,823 11,135 6,336 Abrasive Blasting—Shipyards * 336611a .............................. Ship Building and Repairing ........................................... Welding—Shipyards ** 336611b .............................. Ship Building and Repairing ........................................... Total Construction Subtotal ......... Shipyard Subtotal ............... ......................................................................................... ......................................................................................... 7,711,545 3,054,880 6,233,805 984,460 4,333,027 521,943 Total, All Industries ............. ......................................................................................... 10,766,425 7,218,264 4,854,970 Notes: Figures in rows may not add to totals due to rounding. ‘‘NA’’ indicates not applicable because OSHA determined there were no affected entities in a particular industry of a particular size. Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Appendix V–B Summary of Annualized Cost Savings by Cost Type Under Alternative Discount Rates In addition to using a 3 percent discount rate in its cost analysis, OSHA estimated compliance cost savings using alternative discount rates of 7 percent and 0 percent. Tables V–24 and V–25 present—for 7 percent and 0 percent discount rates, respectively— total annualized cost savings for affected employers by NAICS industry code and type of cost savings. TABLE V–24—ANNUALIZED COMPLIANCE COST SAVINGS FOR EMPLOYERS AFFECTED BY THE NEW BERYLLIUM STANDARDS BY SECTOR AND SIX-DIGIT NAICS INDUSTRY [7 percent discount rate, in 2016 dollars] Application group/NAICS Engineering controls and work practices Industry Respirator costs Program costs Total costs Abrasive Blasting—Construction 238320 ................................ 238990 ................................ Painting and Wall Covering Contractors ...... All Other Specialty Trade Contractors .......... $0 0 $0 0 $4,280,908 3,966,713 $4,280,908 3,966,713 0 0 3,217,754 3,217,754 0 0 35,196 35,196 Abrasive Blasting—Shipyards * 336611a .............................. Ship Building and Repairing ......................... Welding—Shipyards ** 336611b .............................. Ship Building and Repairing ......................... mstockstill on DSK30JT082PROD with PROPOSALS2 Total Construction Subtotal ......... Shipyard Subtotal ............... ....................................................................... ....................................................................... 0 0 0 0 8,247,620 3,252,950 8,247,620 3,252,950 Total, All Industries ............. ....................................................................... 0 0 11,500,570 11,500,570 Note: Figures in rows may not add to totals due to rounding. Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 E:\FR\FM\27JNP2.SGM 27JNP2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules 29215 TABLE V–25—ANNUALIZED COMPLIANCE COST SAVINGS FOR EMPLOYERS AFFECTED BY THE NEW BERYLLIUM STANDARDS BY SECTOR AND SIX-DIGIT NAICS INDUSTRY [0 percent discount rate, in 2016 dollars] Application group/NAICS Engineering controls and work practices Industry Respirator costs Program costs Total costs Abrasive Blasting—Construction 238320 ................................ 238990 ................................ Painting and Wall Covering Contractors ...... All Other Specialty Trade Contractors .......... $0 0 $0 0 $4,002,659 3,708,886 $4,002,659 3,708,886 0 0 3,021,057 3,021,057 0 0 33,823 33,823 Abrasive Blasting—Shipyards * 336611a .............................. Ship Building and Repairing ......................... Welding—Shipyards ** 336611b .............................. Ship Building and Repairing ......................... Total Construction Subtotal ......... Shipyard Subtotal ............... ....................................................................... ....................................................................... 0 0 0 0 7,711,545 3,054,880 7,711,545 3,054,880 Total, All Industries ............. ....................................................................... 0 0 10,766,425 10,766,425 Note: Figures in rows may not add to totals due to rounding. Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. mstockstill on DSK30JT082PROD with PROPOSALS2 D. Foregone Benefits Estimated Foregone Benefits and Net Benefits by Construction and Shipyards for the Final Standards for Occupational Exposure to Beryllium In the 2016 FEA, OSHA estimated that, in addition to other health benefits, the rule would, at the final steady state after a gradual 45-year phase in period, prevent 86 cases of fatal Chronic Beryllium Disease, 46 cases of non-fatal CBD morbidity, and 4 fatal cases of lung cancer annually, the large majority of these cases falling within General Industry (see FEA Chapter VII, Benefits and Net Benefits in Document ID 2042). OSHA estimated the net benefits for the rule as a whole would be worth $487 million ($561 million in benefits minus $74 million in costs). These estimates were midpoints of a very wide range of estimates. Factors contributing to the range included varying risk models, varying approaches to occupational tenure, and widely varying estimates of the effects of ancillary provisions. The construction and shipyard sectors were only a small fraction of this total. Specifically, as indicated in Table VIII– 12 in the preamble to the January 9, 2017 final rule (82 FR 2613), the Agency estimated, using the mid-point of a range of benefits, that the rule would prevent 4 cases of fatal and 2 cases of non-fatal CBD annually in these two sectors. Almost all of these estimated benefits were the result of the ancillary provisions. Given uncertainties about VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 possible benefits from lowering the PEL, the FEA attributed no benefits to implementing the PEL alone for abrasive blasting operations.33 These sectors accounted for an estimated $11.9 million in costs, or 16.1 percent of the costs of the final rule, and an estimated $27.6 million in benefits, or 4.9 percent of the total benefits of the final rule. Without the benefits derived from the construction and shipyards sectors, the net benefit of the rulemaking was reduced by $15.7 million, or 3.2 percent of the total net benefits of the rule. This distribution was due both to the much larger number of workers exposed in general industry, compared to construction and shipyards, and uncertainties about how many residual benefits would remain in abrasive blasting operations after existing regulatory requirements were taken into account. In short, the net benefits attributable to these sectors were both small and uncertain. Review of FEA Benefits Analysis In the FEA, OSHA expressed uncertainty about whether there would be benefits from reduced airborne exposure related to abrasive blasting 33 See footnote 3 on p. VII–10 of Chapter VII, Benefits, for the FEA for the final beryllium standards. This footnote states: ‘‘Given uncertainties about the level of existing respirator use among other workers involved in abrasive blasting operations, OSHA conservatively assigned no benefits related to a reduction in their airborne exposure to beryllium.’’ PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 operations in both shipyards and construction, as well as a limited number of welders in the shipyards sector.34 OSHA noted that abrasive blasting operators in construction are already required to wear respirators and assumed that additional engineering and work-practice controls for the operators were infeasible. As explained in this proposal, abrasive blasters in shipyards are often required to wear respirators under the requirements of the Mechanical paint removers standard, 29 CFR 1915.34. However, these standards do not necessarily cover pot tenders or clean-up workers, and may not have required some pot tenders or clean-up workers exposed above the revised PEL of 0.2 mg/m3 to wear respirators. The exposure data show some pot tenders or clean-up workers are exposed above the revised PEL, but the data do not show whether any of these pot tenders or clean-up workers exposed above the revised PEL were wearing respirators. This uncertainty about baseline respirator use led OSHA to take a conservative approach in the 2016 FEA: In the benefits analysis, OSHA assumed no new benefits from the PEL requirements (thereby potentially underestimating benefits related to the lower PEL), but in the cost analysis, to err on the side of overestimating costs, OSHA assumed 34 In the 2016 FEA Industry Profile, OSHA estimated that there were 26 welders in shipyards who would be affected by the final rule. E:\FR\FM\27JNP2.SGM 27JNP2 29216 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules mstockstill on DSK30JT082PROD with PROPOSALS2 that only 75 percent of abrasive blaster helpers, including cleanup workers, were already provided with the respiratory protection required by the new standard. Welders in shipyards also have some exposures above the PEL. However, employers are already required to provide welders with ventilation and air-line respirators under 29 CFR 1915.51. Nevertheless, in the cost section of the 2016 FEA, OSHA again provided a conservative estimate for the cost of one new respirator and added a small increment to benefits as result of the new PEL. Estimate of Foregone Benefits As explained in the Summary and Explanation of this preamble, OSHA has decided to retain the 0.2 mg/m3 PEL portion of the current standards for construction and maritime. Therefore, the key question with respect to the magnitude of the benefits foregone for this rule is the effect of the ancillary provisions (over and above their effect in ensuring compliance with the PEL) in reducing illnesses and fatalities. In the FEA, the Agency attributed some reduction in disease to the standards’ new lower PEL and the standards’ ancillary provisions. However, as explained in the FEA, there was uncertainty of the efficacy of the ancillary requirements across different work environments. For General Industry, the efficacy was estimated to range from no effect to reducing as much as 90 percent of the CBD cases not averted by the new PEL. The FEA referenced several case studies from general industry where benefits at the high end of this scale had come to pass empirically, on top of whatever engineering controls had been implemented. These benefits were attributed most specifically to the introduction of a combination of dermal and respiratory PPE, as well as more aggressive housekeeping. Throughout the rulemaking process, OSHA has been aware that the situations in shipyards and construction may be substantially different from those in general industry. Baseline usage of respirators and PPE is far higher in construction and shipyards. While the general industry ‘‘model’’ for the efficacy of the ancillary provisions may apply relatively well at other places in general industry (since it was based largely on the experience at Materion facilities), it might be less effective for construction and shipyards. As indicated in the FEA, most workers in construction and shipyard abrasive blasting and shipyard welding operations are already required by other VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 standards to wear respirators, and it is unclear how many of the abrasive blasting workers would benefit from additional dermal protection requirements. As a result, compared to the earlier (2015) PEA, the Agency estimated a much lower range of benefits to the ancillary provisions for construction and shipyards. Between the 2015 PEA and the FEA, the Agency judged that the benefits estimated for abrasive blasting should be even lower than in the 2015 PEA (which had estimated them at half that of general industry, or a range of 0 to 45 percent), and halved them again to 0 to 22.5 percent in the FEA. The high end of this range was simply an estimate of 25 percent of the range used in general industry, as a way of accounting for the extensive use of respirators and PPE in these two sectors. Upon further review, OSHA believes that this estimate of 0 to 22.5 percent is too high. While the FEA estimates recognized a high baseline level of compliance, the benefit estimates did not account for compliance with PPE and housekeeping provisions by shipyard welders and construction and shipyard abrasive blasting workers. As a result, based on OSHA’s preliminary revised baseline compliance estimates, there should have been limited to no benefits in terms of reduced cases of CBD attributed to the ancillary provisions for the construction and shipyards standards in the January 2017 rule. OSHA also, upon review, found that shipyard welders already use extensive PPE, and thus, based on OSHA’s preliminary revised baseline compliance estimates, should have had more limited benefits attributable to the ancillary provisions than originally estimated in the January 2017 rule. This issue of baseline compliance, along with the estimates underlying OSHA’s proposed revised baseline compliance rates, was discussed in section V.B, Profile of Affected Application Groups, Establishments, and Employees, of this preamble. Based on the proposed revised compliance rates discussed there, OSHA has therefore preliminarily concluded that abrasive blasting workers in construction and shipyards and welders in shipyards will have limited to no foregone benefits as a result of withdrawing the ancillary provisions. Using the proposed revised baseline compliance rates in section V.B of this PEA would also lower the estimate of benefits for the construction and shipyard sectors by lowering the baseline estimate of illnesses and fatalities. (Such an issue was not relevant for general industry because PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 there were not such high levels of baseline compliance.) Conclusions For the reasons discussed above, OSHA has preliminarily concluded that there are limited to no foregone benefits (due to reducing the number of cases of CBD) as a result of revoking the ancillary provisions of the beryllium final standards for Construction and Shipyards because based on the proposed revised baseline compliance estimates presented in section V.B. of this PEA, the benefits attributed to the ancillary provisions in those sectors were overestimated. The Agency continues to believe that the new PEL will ensure that workers receive additional protection from exposure to beryllium.35 VI. Economic Feasibility Analysis and Regulatory Flexibility Certification Economic Feasibility Analysis Shipyards OSHA is proposing to revoke the ancillary provisions in shipyards and amend the Z Table with the new lower PEL and STEL. OSHA preliminarily concludes that the proposed removal of these provisions for shipyards from the new beryllium standards would reduce costs for shipyard employers. Because these revisions do not create new requirements, OSHA has preliminarily determined that neither new costs nor compliance burdens would be incurred by shipyard employers. Instead there would be cost savings as compared to the January 9, 2017 final standard for occupational exposure to beryllium in shipyards. Construction OSHA is proposing to revoke the ancillary provisions in construction and amend Appendix A of 1926.55 with the new lower PEL and STEL. OSHA preliminarily concludes that the proposed removal of these provisions for the construction sector would reduce costs for construction employers. Because these revisions do not create new requirements, OSHA has preliminarily determined that neither new costs nor compliance burdens would be incurred by construction 35 The FEA attributed benefits to lowering the PEL for welders in shipyards. While there are also benefits among abrasive blasting pot tenders and cleanup workers for lowering the PEL, in order to avoid overestimating benefits in the FEA, OSHA took the conservative approach of estimating no benefits for these workers due to uncertainty about the extent of baseline respirator use. The new lower PEL may also result in more protective respirators being used in abrasive blasting operations, and will protect workers in the event that respirators fail, although this is difficult to quantify. E:\FR\FM\27JNP2.SGM 27JNP2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules employers. Instead there would be cost savings as compared to the January 9, 2017 final standard for occupational exposure to beryllium in construction. Economic Feasibility Determination Based on the preceding discussion, it is clear that no shipyard or construction employer would incur new costs as a result of this proposal beyond the minimal cost of familiarization. Because there are no new requirements, OSHA preliminarily concludes that the proposed rule is economically feasible. The Agency welcomes comment on this preliminary finding. Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (as amended), OSHA has examined the regulatory requirements of the proposal for shipyards and construction to determine whether they would have a significant economic impact on a substantial number of small entities. The proposal would remove ancillary provisions for shipyards and construction from the new beryllium rule, resulting in a reduction of overall costs. Furthermore, because OSHA is proposing no new requirements, the Agency believes that this proposal would not impose any costs on small entities covered by this proposal. The 2016 FEA analysis showed that the costs, and thus the cost savings, would not represent a significant impact on a substantial numbers of small entities and, therefore, the cost savings in this proposal would not have a significant impact on the construction and shipyard subset of those small entities. The Agency certifies that the proposal would not have a significant economic impact on a substantial number of small entities. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs Consistent with Executive Order 13771 (82 FR 9339, February 3, 2017) we have estimated the total annualized cost savings of this proposed rule, using a 3 percent discount rate, to be about $11.0 million, or using a 7 percent discount rate, to be about $11.5 million. Therefore, this proposed rule, if finalized, is expected to be an Executive Order 13771 deregulatory action. VII. OMB Review Under the Paperwork Reduction Act of 1995 A. Overview The current beryllium standards for occupational exposure to beryllium— general industry (29 CFR 1910.1024), construction (29 CFR 1926.1124), and shipyard (29 CFR 1915.1024)—contain collection of information (paperwork) requirements that have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA), and approved under OMB Control number 1218–0267. The proposal would revoke the beryllium standards, and their collections of information, in the shipyard and construction sectors, while retaining the new lower permissible exposure limits. The PRA defines ‘‘collection of information’’ to mean ‘‘the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format’’ (44 U.S.C. 3502(3)(A)). Under the PRA, a Federal agency cannot conduct or sponsor a collection of information unless OMB approves it, and the agency displays a currently valid OMB control number (44 U.S.C. 3507). Also, notwithstanding any other provision of law, no employer shall be subject to penalty for failing to comply with a collection of information if the collection of information does not display a currently valid OMB control number (44 U.S.C. 3512). The major collections of information found in the standards are listed below. B. Solicitation of Comments OSHA prepared and submitted a revised Information Collection Request (ICR) to OMB removing the Beryllium Shipyard and Construction collections of information from the existing OMB approved paperwork package in accordance with 44 U.S.C. 3507(d). The Agency solicits comments on the removal of the collection of information requirements and reduction in mstockstill on DSK30JT082PROD with PROPOSALS2 Retaining collections of information 29217 estimated burden hours associated with these requirements, including comments on the following items: • Whether collections of information are necessary for the proper performance of the Agency’s functions, including whether the information is useful; • The accuracy of OSHA’s estimate of the burden (time and cost) of the collections of information, including the validity of the methodology and assumptions used; • The quality, utility, and clarity of the information collected; and • Ways to minimize the compliance burden on employers, for example, by using automated or other technological techniques for collecting and transmitting information (78 FR 56438). C. Proposed Information Collection Requirements As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the following paragraphs provide information about this ICR. 1. Title: The Occupational Exposure to Beryllium. 2. Description of the ICR: The proposal would remove both the Shipyard and Construction Standards from the currently approved Beryllium ICR. 3. Brief Summary of the Information Collection Requirements The proposed ICR does not contain the collection of information requirements in the construction and shipyard industries. The proposal to remove standards for construction and shipyards is based on the Agency’s reconsideration of the need for ancillary provisions in those sectors. Below is a summary of the collection of information requirements identified in the currently approved Beryllium Information Collection. In this proposed rulemaking, the Agency is proposing to remove the construction and shipyard standards and retain the general industry standard in the Beryllium rule. A copy of this ICR is available to the public at: http://www.reginfo.gov/ public/do/PRAOMBHistory?ombControl Number=1218-0267. Removing collections of information General industry Maritime industry Construction industry § 1910.1024(d)(2) Performance Option .............. § 1910.1024(d)(3)(i), (ii), & (iii) Scheduled Monitoring Options. § 1910.1024(d)(3)(iv), (v), & (vi) Scheduled Monitoring Options. § 1910.1024(d)(4) Reassessment of Exposure .. § 1915.1024(d)(2) Performance Option ........... § 1915.1024(d)(3)(i), (ii), & (iii) Scheduled Monitoring Options. § 1915.1024(d)(3)(iv), (v), & (vi) Scheduled Monitoring Options. § 1915.1024(d)(4) Reassessment of Exposure § 1926.1124(d)(2) Performance Option. § 1926.1124(d)(3)(i), (ii), & (iii) Scheduled Monitoring Options. § 1926.1124(d)(3)(iv), (v), & (vi) Scheduled Monitoring Options. § 1926.1124(d)(4) Reassessment of Exposure. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 E:\FR\FM\27JNP2.SGM 27JNP2 29218 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Retaining collections of information Removing collections of information General industry Maritime industry Construction industry § 1910.1024(d)(6)(i) & (ii) Employee Notification of Assessment Results. § 1910.1024(e)(2)(i) & (ii) Demarcation of Beryllium Work Area and Regulated Areas—. § 1910.1024(f)(1)(i), (ii), & (iii) Methods of Compliance—Written Exposure Control Plan. § 1915.1024(d)(6)(i) & (ii) Employee Notification of Assessment Results. § 1915.1024(e)(2) Regulated Areas—Demarcation. § 1915.1024(f)(1)(i), (ii), & (iii) Methods of Compliance—Written Exposure Control Plan. § 1915.1024(g) Respiratory Protection Program. § 1915.1024(h)(2)(v) Personal Protective Clothing and Equipment—Removal and Storage. § 1915.1024(h)(3)(iii) Personal Protective Clothing and Equipment—Cleaning and Replacement. § 1915.1024(j)(3) Housekeeping—Disposal .... § 1926.1124(d)(6)(i) & (ii) Employee Notification of Assessment Results. § 1926.1124(e)(2) Competent Person. § 1926.1124(f)(1)(i), (ii), & (iii) Methods of Compliance—Written Exposure Control Plan. § 1926.1124(g) Respiratory Protection Program. § 1926.1124(h)(2)(v) Personal Protective Clothing and Equipment—Removal and Storage. § 1926.1124(h)(3)(iii) Personal Protective Clothing and Equipment—Cleaning and Replacement. § 1926.1124(j)(3) Housekeeping—Disposal. § 1915.1024(k)(1), (2), & (3) Medical Surveillance. § 1915.1024(k)(4) Medical Surveillance—Information Provided to the PLHCP. § 1915.1024(k)(5)(i), (ii), & (iii) Medical Surveillance—Licensed Physician’s Written Medical Report for the Employee. § 1915.1024(k)(6) Medical Surveillance—Licensed Physician’s Written Medical Opinion for the Employer. § 1915.1024(k)(7) Medical Surveillance—Referral to the CBD Diagnostic Center. § 1915.1024(l)(1) Medical Removal ................. § 1915.1024(m)(1) Communication of hazards § 1915.1024(m)(2) Warning Signs ................... § 1915.1024(m)(3) Warning labels ................... § 1915.1024(m)(4)(iv) Employee Information .. § 1915.1024(n)(1)(i), (ii), & (iii) Recordkeeping—Air Monitoring Data. § 1915.1024(n)(2)(i), (ii), & (iii) Recordkeeping—Objective Data. § 1915.1024(n)(3)(i), (ii), & (iii) Recordkeeping—Medical Surveillance. § 1915.1024(n)(4)(i) & (ii) Recordkeeping— Training. § 1926.1124(k)(1), (2), & (3) Medical Surveillance. § 1926.1124(k)(4) Medical Surveillance—Information Provided to the PLHCP. § 1926.1124(k)(5)(i), (ii), & (iii) Medical Surveillance—Licensed Physician’s Written Medical Report for the Employee. § 1926.1124(k)(6) Medical Surveillance—Licensed Physician’s Written Medical Opinion for the Employer. § 1926.1124(k)(7) Medical Surveillance—Referral to the CBD Diagnostic Center. § 1926.1124(l)(1) Medical Removal. § 1926.1124(m)(1) Communication of hazards. N/A. § 1926.1124(m)(3) Warning labels. § 1926.1124(m)(4)(iv) Employee Information. § 1926.1124(n)(1)(i), (ii), & (iii) Recordkeeping—Air Monitoring Data. § 1926.1124(n)(2)(i), (ii), & (iii) Recordkeeping—Objective Data. § 1926.1124(n)(3)(i), (ii), & (iii) Recordkeeping—Medical Surveillance. § 1926.1124(n)(4)(i) & (ii) Recordkeeping— Training. § 1910.1024(g)(2) Respiratory Protection Program. § 1910.1024(h)(2)(v) Personal Protective Clothing and Equipment—Removal and Storage. mstockstill on DSK30JT082PROD with PROPOSALS2 § 1910.1024(h)(3)(iii) Personal Protective Clothing and Equipment—Cleaning and Replacement. § 1910.1024(j)(3)(i) & (ii) Housekeeping—Disposal. § 1910.1024(k)(1), (2), & (3) Medical Surveillance. § 1910.1024(k)(4) Medical Surveillance—Information Provided to the PLHCP. § 1910.1024(k)(5)(i), (ii), & (iii) Medical Surveillance—Licensed Physician’s Written Medical Report for the Employee. § 1910.1024(k)(6) Medical Surveillance—Licensed Physician’s Written Medical Opinion for the Employer. § 1910.1024(k)(7) Medical Surveillance—Referral to the CBD Diagnostic Center. § 1910.1024(l)(1) Medical Removal .................... § 1910.1024(m)(1) Communication of hazards .. § 1910.1024(m)(2) Warning Signs ..................... § 1910.1024(m)(3) Warning labels ..................... § 1910.1024(m)(4)(iv) Employee Information ..... § 1910.1024(n)(1)(i), (ii), & (iii) Recordkeeping— Air Monitoring Data. § 1910.1024(n)(2)(i), (ii), & (iii) Recordkeeping— Objective Data. § 1910.1024(n)(3)(i), (ii), & (iii) Recordkeeping— Medical Surveillance. § 1910.1024(n)(4)(i) & (ii) Recordkeeping— Training. 1. Title: Beryllium (29 CFR 1910.1024). 2. Type of Review: Revision. 3. OMB Control Number: 1218–0267. 4. Affected Public: Business or other for-profit. This standard would only apply to employers in general industry. 5. Number of Respondents: 4,008 employers. 6. Frequency of Responses: On occasion; quarterly, semi-annually, annual; biannual. 7. Number of Responses: 142,679. 8. Average Time per Response: Varies from 5 minutes (.08 hours) for a clerical worker to generate and maintain an employee medical record, to more than 8 hours for a human resource manager to develop and implement a written exposure control plan. 9. Estimated Annual Total Burden Hours: 83,787. This is a reduction of 47,791 hours from the existing annualized 131,578 burden hours. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 10. Estimated Annual Cost (capitaloperation and maintenance): $20,584,209. This is an annualized cost savings of $9,980,781 from the existing annualized cost of $30,564,990. D. Submitting Comments Members of the public who wish to comment on the revisions to the paperwork requirements in this proposal must send their written comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor, OSHA (RIN–1218 –AB76), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202–395–6929/Fax: 202–395–6881 (these are not toll-free numbers), email: OIRA_submission@omb.eop.gov. The Agency encourages commenters also to submit their comments on these paperwork requirements to the rulemaking docket (Docket Number PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 OSHA–H005C–2006–0870), along with their comments on other parts of the proposed rule. For instructions on submitting these comments to the rulemaking docket, see the sections of this Federal Register notice titled DATES and ADDRESSES. Comments submitted in response to this notice are public records; therefore, OSHA cautions commenters about submitting personal information such as Social Security numbers and dates of birth. E. Docket and Inquiries To access the docket to read or download comments and other materials related to this paperwork determination, including the complete Information Collection Request (ICR) (containing the Supporting Statement with attachments describing the paperwork determinations in detail) use the procedures described under the section of this notice titled ADDRESSES. E:\FR\FM\27JNP2.SGM 27JNP2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules You also may obtain an electronic copy of the complete ICR by visiting the Web page at: http://www.reginfo.gov/public/ do/PRAMain, scroll under ‘‘Currently Under Review’’ to ‘‘Department of Labor (DOL)’’ to view all of the DOL’s ICRs, including those ICRs submitted for proposed rulemakings. To make inquiries, or to request other information, contact Mr. Todd Owen, Directorate of Standards and Guidance, OSHA, Room N–3609, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–2222. mstockstill on DSK30JT082PROD with PROPOSALS2 VIII. Federalism OSHA reviewed this proposed beryllium rule according to the most recent Executive Order (‘‘E.O.’’) on Federalism, E.O. 13132, 64 FR 43255 (Aug. 10, 1999). The E.O. requires that Federal agencies, to the extent possible, refrain from limiting State policy options, consult with States before taking actions that would restrict States’ policy options, and take such actions only when clear constitutional authority exists and the problem is of national scope. The E.O. allows Federal agencies to preempt State law only with the expressed consent of Congress. In such cases, Federal agencies must limit preemption of State law to the extent possible. Under Section 18 of the Occupational Safety and Health Act (the ‘‘Act’’ or ‘‘OSH Act’’), 29 U.S.C. 667, Congress expressly provides that States may adopt, with Federal approval, a plan for the development and enforcement of occupational safety and health standards. OSHA refers to States that obtain Federal approval for such plans 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 their own occupational safety and health standards. This proposed rule would revoke the ancillary provisions for the construction and shipyard industries, but retain the recently revised PEL of 0.2 mg/m3 and STEL of 2.0 mg/m3 for those industries. This would provide more flexibility to State-Plan States to develop and enforce their own standards, provided those standards require workplaces to be at least as safe and healthful as federal OSHA standards. Additionally, standards promulgated under the OSH Act do not apply to any worker whose VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 employer is a state or local government. 29 U.S.C. 652(5). This proposed rule complies with E.O. 13132. In States without OSHAapproved 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 rule would limit State policy options in the same manner as every standard promulgated by the Agency. In States with OSHA-approved State plans, this rulemaking would not limit State policy options to adopt stricter standards. IX. State-Plan States When Federal OSHA promulgates a new standard or a more stringent amendment to an existing standard, the States and U.S. territories with their own OSHA-approved occupational safety and health plans (‘‘State-Plan States’’) must revise their standards to reflect the new standard or amendment. The State standard must be at least as effective as the Federal standard or amendment, and must be promulgated within 6 months of the publication date of the final Federal rule. 29 CFR 1953.5(a). Currently, there are 28 StatePlan States. Of the 28 States and territories with OSHA-approved State plans, 22 cover public and private-sector employees: 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. The remaining six states and territories cover only public-sector employees: Connecticut, Illinois, New Jersey, Maine, New York, and the Virgin Islands. This rule, if adopted as proposed, would eliminate the ancillary provisions for the construction and shipyard industries, but retain the recently revised PELs of 0.2 mg/m3 as an 8-hour time-weighted average and 2.0 mg/m3 as a 15 minute short-term exposure limit for those industries. It would leave the beryllium standard for general industry intact. Therefore, no new State standards would be required beyond the revision of the PELs and those already required by the promulgation of the beryllium standard for general industry. If the proposal is adopted, State-Plan states may nonetheless choose to conform to the January 9, 2017 construction and shipyards ancillary provisions, although they would no longer be required to do so. PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 29219 X. Unfunded Mandates Reform Act Under Section 202 of the Unfunded Mandates Reform Act of 1995 (‘‘UMRA’’), 2 U.S.C. 1532, an agency must prepare a written ‘‘qualitative and quantitative assessment’’ of any regulation creating a mandate that ‘‘may result in the expenditure by the State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation)’’ in any one year before promulgating a final rule. OSHA’s rule does not place a mandate on State or local governments, for purposes of the UMRA, because OSHA cannot enforce its regulations or standards on State or local governments. 29 U.S.C. 652(5). Under voluntary agreement with OSHA, some States require public sector entities to comply with State standards, and these agreements specify that these State standards must be at least as protective as OSHA standards. The OSH Act does not cover tribal governments in the performance of traditional governmental functions, though it does cover tribal governments when they engage in commercial activity. However, this proposed rule will not require tribal governments to expend, in the aggregate, $100,000,000 or more in any one year for their commercial activities. Thus, this proposed rule does not trigger the requirements of UMRA based on its impact on State, local, or tribal governments. Based on the analysis presented in the Preliminary Economic Analysis (see Section V above), OSHA concludes that this proposed 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. As noted below, OSHA also reviewed this proposed rule in accordance with E.O. 13175 on Consultation and Coordination with Indian Tribal Governments, 65 FR 67249 (Nov. 9, 2000), and determined that, if adopted, it would not have ‘‘tribal implications’’ as defined in that Order. XI. Protecting Children From Environmental Health and Safety Risks E.O. 13045, 66 FR 19931 (Apr. 23, 2003), requires that Federal agencies submitting covered regulatory actions to OMB’s Office of Information and Regulatory Affairs (‘‘OIRA’’) for review pursuant to E.O. 12866, 58 FR 51735 (Oct. 4, 1993), must provide OIRA with (1) an evaluation of the environmental health or safety effects that the planned regulation may have on children, and (2) an explanation of why the planned E:\FR\FM\27JNP2.SGM 27JNP2 29220 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency. E.O. 13045 defines ‘‘covered regulatory actions’’ as rules that may (1) be economically significant under E.O. 12866 (i.e., a rulemaking that has an annual effect on the economy of $100 million or more, or would adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities), and (2) concern an environmental health risk or safety risk that an agency has reason to believe may disproportionately affect children. In this context, the term ‘‘environmental health risks and safety risks’’ means risks to health or safety that are attributable to products or substances that children are likely to come in contact with or ingest (e.g., through air, food, water, soil, or product use). This proposed beryllium rule would not be economically significant under E.O. 12866 (see Section V of this preamble). In addition, OSHA is not aware of any studies showing that exposure to beryllium in workplaces disproportionately affects children, who typically are not allowed in workplaces where such exposure exists. OSHA is also not aware that there are a significant number of employees under 18 years of age who may be exposed to beryllium, or that employees of that age are disproportionately affected by such exposure. OSHA also does not believe that beryllium particles present in abrasive blasting media or welding fume residue that might be brought home on work clothing, shoes, and hair would result in exposures at or near the action level as defined in the January 9, 2017 standards. Therefore, OSHA believes that this proposed beryllium rule would not constitute a covered regulatory action as defined by E.O. 13045. mstockstill on DSK30JT082PROD with PROPOSALS2 XII. Environmental Impacts OSHA has reviewed this proposed beryllium rule according to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), the regulations of the Council on Environmental Quality (40 CFR part 1500), and the Department of Labor’s NEPA procedures (29 CFR part 11). OSHA has made a preliminary determination that this proposed rule would have no significant impact on air, water, or soil quality; plant or animal life; the use of land or aspects of the external environment. VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 XIII. Consultation and Coordination With Indian Tribal Governments OSHA reviewed this proposed rule in accordance with E.O. 13175 on Consultation and Coordination with Indian Tribal Governments, 65 FR 67249 (Nov. 9, 2000), and determined that it does not have ‘‘tribal implications’’ as defined in that order. The OSH Act does not cover tribal governments in the performance of traditional governmental functions, so the proposal will not have substantial direct effects on one or more Indian tribes in their sovereign capacity, 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. On the other hand, employees in commercial businesses owned by tribes or tribal members will receive the same protections and benefits of the standard as all other covered employees. XIV. Public Participation OSHA encourages members of the public to participate in this rulemaking by submitting comments on the proposal. Written Comments. OSHA invites interested persons to submit written data, views, and arguments concerning this proposal. When submitting comments, persons must follow the procedures specified above in the sections titled DATES and ADDRESSES. Informal public hearings. The Agency will schedule an informal public hearing on the proposed rule if requested during the comment period. XV. Summary and Explanation of the Proposal This section of the preamble explains the changes that OSHA proposes to make to the beryllium standards, including Agency’s explanation of the reasoning behind the proposed changes. As noted in the January 9, 2017 final rule, OSHA has evidence that beryllium exposure above 0.2 mg/m3 as an 8-hour time-weighted average can occur in abrasive blasting in construction, abrasive blasting in shipyards, and welding in shipyards. OSHA determined that exposures at that level create a significant risk of material impairment of health, including developing CBD and lung cancer. These operations, however, are already regulated by other OSHA construction and shipyards standards. OSHA requested, but did not receive, additional data during the previous rulemaking about exposures in these operations and about protections PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 provided by other OSHA standards. In light of the limited information regarding exposures and the potential that other OSHA standards may offer protection from beryllium exposures, OSHA is proposing, as an alternative to the comprehensive January 9, 2017 final rule, to revoke the ancillary provisions for construction and the ancillary provisions for shipyards while retaining the new lower PELs for these sectors. This proposal allows OSHA to open the rulemaking record to receive more information about exposures, controls, and procedures in operations within the construction and shipyard sectors. In addition, this NPRM provides stakeholders with an additional opportunity to offer comments on the January 9, 2017 construction and shipyard standards, including comments on the regulatory text and whether the ancillary provisions are necessary in these sectors. Significant Risk in Construction and Shipyards A. Summary of Relevant Exposure Data 1. Abrasive Blasting Despite the low concentrations of beryllium in the blast material, airborne concentrations of beryllium have been measured above the previous TWA PEL of 2 mg/m3 when blast material containing beryllium is used as intended. In OSHA’s exposure profile in the January 9, 2017 rule, summarized above in Section IV, 56 percent of abrasive blasting operators had beryllium exposures at or below 0.2 mg/ m3, and 19 percent exceeded 2.0 mg/m3. For pot tenders, all samples in the exposure profile were less than or equal to 0.2 mg/m3. Of those samples, 75 percent were non-detectable for beryllium. For cleanup workers, 94 percent of samples were less than or equal to 0.2 mg/m3. Eighty-three percent of the abrasive media cleanup worker samples were non-detectable for beryllium. One cleanup worker had an 8-hour TWA sample result of 1.1 mg/m3; however, it is likely that this sample result was elevated due to nearby abrasive blasting. Another cleanup worker had a sample result of 7.4 mg/m3 as an 8-hour TWA, but this appeared to be associated with the use of compressed air for cleaning in conjunction with nearby abrasive blasting. The available data in the previous rulemaking record suggested that most pot tenders and cleanup workers have low beryllium exposures. The median exposure levels for both of these job categories were less than 0.1 mg/m3 and nearly all results were less than or equal to 0.2 mg/m3. It should be E:\FR\FM\27JNP2.SGM 27JNP2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules noted that the exposure profile for pot tenders and cleanup workers is based on limited data (16 and 30 air samples, respectively), and given this information, OSHA believes some of these workers are exposed above 0.2 mg/m3. mstockstill on DSK30JT082PROD with PROPOSALS2 Welding in Shipyards As described in Section 10, Appendix 2 of the Technological Feasibility chapter of the January 9, 2017 final rule (Document ID 2042), 127 personal breathing zone (PBZ) samples collected on welders welding non-specified or non-beryllium-containing materials in U.S. shipyards and Navy facilities range from 0.02 mg/m3 to 0.74 mg/m3, with a mean of 0.13 mg/m3 and a median of 0.08 mg/m3 (OSHA Shipyards, 2005, Document ID 1166; U.S. Navy, 2003, 0145). Of the 127 samples, 123 samples (approximately 97 percent) were nondetectable for beryllium. This pattern was also confirmed in an observation by the Navy Environmental Health Center, which indicated that beryllium has not generally been found in welding fumes (NEHC_Jan24, 2005, Document ID 1236). B. Summary of Significant Risk Finding As noted in the January 9, 2017 final rule, OSHA has evidence that workers are exposed to beryllium above 0.2 mg/ m3 in abrasive blasting in construction, abrasive blasting in shipyards, and welding in shipyards. Abrasive blasters and ancillary abrasive blasting workers, such as pot tenders and cleanup workers, are exposed to beryllium from coal slag and other mineral slags such as copper slag. Beryllium is a trace contaminant in these materials, but despite the low concentration of beryllium, airborne beryllium concentrations above 0.2 mg/m3 have resulted from the blasting process and may lead to harmful exposures to abrasive blasting operators and others in the vicinity of the blasting operation. In the January 9, 2017 final rule, OSHA determined that exposures at that level create a significant risk of developing CBD and lung cancer. In comments on the 2015 proposal, the American Blasting Manufacturers Alliance argued that OSHA had not established significant risk associated with blasting operations. In particular, it argued that ‘‘the Alliance members have no history of employees with beryllium sensitization or beryllium-related illnesses. Indeed, the Alliance members are not aware of a single documented case of beryllium sensitization or beryllium-related illness associated with coal or copper slag abrasive production among their employees, or their VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 customers’ employees working with the products of Alliance members’’ (Document ID 1673, p. 9). However, ABMA presented no studies or rigorous scientific evidence to support this statement, and as OSHA noted in the January 9, 2017 final rule, such anecdotal reports are not compelling evidence, especially where there is no surveillance program, required or otherwise (see 82 FR 2642). Rather, the best available evidence indicates that there is a significant risk of CBD and lung cancer to workers in construction and shipyards based on the exposure levels observed. However, OSHA welcomes further data and comment on the risks of sensitization, CBD, and lung cancer among workers involved in abrasive blasting and welding operations in shipyards and construction. Current Applicable Standards In the January 9, 2017 final rule, OSHA identified that the requirements for new PELs and for ancillary provisions such as medical surveillance, personal protective clothing and equipment, and beryllium-specific training provided needed protections (82 FR 2637). OSHA stated that it adopted ancillary provisions for construction and shipyards ‘‘to ensure that workers exposed to beryllium in the construction and shipyard industries are provided protection that is comparable to the protection afforded workers in general industry.’’ (82 FR 2639–40). However, given that other OSHA construction standards cover abrasive blasting operations, where the available data shows that beryllium exposures primarily occur, OSHA is further considering the need for ancillary provisions for the construction sector. Similarly, abrasive blasting in shipyards and welding in shipyards are already regulated by OSHA in various ways that limit exposure to beryllium among workers in these operations, and OSHA is also giving further consideration to the need for the ancillary standards for those operations. A. Construction Workers in the construction sector are protected by the permissible exposure limits (PELs) set forth in 29 CFR 1926.55 Appendix A. The January 9, 2017 final rule lowered the PELs to 0.2 mg/m3 as an 8-hour time-weighted average and 2.0 mg/m3 as a 15-minute short term exposure limit. In addition to these PELs, workers in construction are already protected from beryllium exposure through other standards. The ventilation standard in construction at 1926.57(f)(2)(ii) requires PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 29221 ‘‘[t]he concentration of respirable dust or fume in the breathing zone of the abrasive-blasting operator or any other worker’’ to remain ‘‘below the levels specified in 1926.55,’’ which OSHA proposes to lower to 0.2 mg/m3 as an 8hour time-weighted average and 2.0 mg/ m3 as a short term exposure limit.36 Through the construction ventilation standard, workers performing abrasive blasting are required to wear extensive PPE, including respirators, under certain conditions, including where beryllium concentrations dispersed by blasting may exceed the PEL and the operator is not already physically separated from the nozzle and blast material. 29 CFR 1926.57(f)(5)(ii). In addition, the construction ventilation standard requires some housekeeping measures. 29 CFR 1926.57(f). 29 CFR 1926.57(f)(7) requires that dust not be allowed to accumulate outside abrasive blasting enclosures and that spills be cleaned up promptly. 29 CFR 1926.57(f)(3) and (f)(4) also require exhaust ventilation and dust collection and removal systems in abrasive blasting operations in construction. Compliance with those housekeeping measures during abrasive blasting should also reduce the amount of beryllium-containing dust to be cleaned, thereby protecting clean-up workers who clean spent abrasive blasting media after blasting operations are completed. Furthermore, the general industry Respiratory Protection standard at 1910.134 applies to construction and requires employers to provide a respirator to each employee when necessary to protect the employee’s health. Additionally, OSHA requires construction employers to train their employees in the recognition and avoidance of unsafe conditions. 29 CFR 1926.21. In particular, section 1926.21(b)(3) requires employers to instruct employees who handle harmful substances ‘‘regarding the safe handling and use, and be made aware of the potential hazards, personal hygiene, and personal protective measures.’’ The hazard communication standard, which applies to the construction industry, also requires training, including the hazards of the chemicals in the work area and the ‘‘appropriate work practices, emergency procedures, and personal protective equipment to be used.’’ 1910.1200(h)(3). 36 The January 2017 final rule lowered the PELs in construction in 29 CFR 1926.1124. Because OSHA is now proposing to revoke the comprehensive construction standard while retaining the lower PELs, this proposal would amend the PELs in Appendix A of 29 CFR 1926.55 to reflect the new lower PELs. E:\FR\FM\27JNP2.SGM 27JNP2 29222 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Shipyards Workers in shipyards are protected by the PELs set forth in 29 CFR 1915.1000 Table Z. In the January 9, 2017 final rule, OSHA lowered the PELs to 0.2 mg/ m3 as an 8-hour time-weighted average and 2.0 mg/m3 as a 15-minute short term exposure limit. The January 2017 final rule lowered the PELs in shipyards in 29 CFR 1915.1024. Because OSHA is now proposing to revoke the ancillary provisions for shipyards while retaining the lower PELs, this proposal would amend the PELs in Table Z of 29 CFR 1915.1000 to reflect the new lower PELs. In general, hazards not covered by shipyard industry standards may be covered by general industry standards in 29 CFR part 1910. If a hazard is covered by both the shipyard industry standards and the general industry standards, only the shipyard industry standards are cited in OSHA inspections (29 CFR 1910.5). In addition to these exposure limits, workers in shipyards are already protected from beryllium exposure through other standards. mstockstill on DSK30JT082PROD with PROPOSALS2 1. Abrasive Blasting Abrasive blasting in shipyards is covered by the Mechanical paint removers standard. 29 CFR 1915.34. OSHA expects that most abrasive blasting in shipyards involves paint removal. In a comment on the previous proposal, the Shipbuilders Council of America commented that ‘‘[i]n shipyards beryllium is primarily encountered in in abrasive blasting operations. Coal slag particulates are used as a blast grit for removing paints, coatings, and rust from steel components prior to painting and coating.’’ (Document ID 1618, p. 3). OSHA seeks comment on whether there are abrasive blasting operations in shipyards that are not covered by 1915.34. The shipyards standard at 29 CFR 1915.34(c)(3) requires respiratory protection and other appropriate personal protective equipment in abrasive blasting operations for both abrasive blasting operators and helpers working in the area. The general industry respirator standard at 1910.134 applies to shipyards and requires employers to provide a respirator to each employee when necessary to protect the employee’s health. Additionally, the hazard communication standard requires training, including the hazards of the chemicals in the work area and the ‘‘appropriate work practices, emergency procedures, and personal protective equipment to be used.’’ 1910.1200(h)(3). Certain provisions of OSHA’s Ventilation standard for abrasive VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 blasting (29 CFR 1910.94(a)) also apply to abrasive blasting in shipyards. OSHA guidance on the application of the exhaust ventilation paragraph of the general industry standard (29 CFR 1910.94(a)(4)) states that all blastcleaning enclosures must have sufficient exhaust ventilation to prevent a buildup of dust-laden air and reduce the concentrations of hazardous air contaminants, as well as to increase operator visibility and prevent leakage of dust to the outside of the enclosure. The Ventilation standard also contains housekeeping requirements in the subparagraph on abrasive blasting (29 CFR 1910.94(a)(7)). Compliance with those housekeeping measures during abrasive blasting should also reduce the amount of beryllium-containing dust to be cleaned, thereby protecting clean-up workers who clean spent abrasive blasting media after blasting operations are completed. In addition, exhaust ventilation systems must be constructed, installed, inspected, and maintained according to the OSHA Ventilation standard for abrasive blasting (29 CFR 1910.94(a)). OSHA seeks comment on current industry practices and legal requirements regarding PPE use for abrasive blasting workers, including pot tenders and clean-up workers. Abrasive blasting sometimes occurs in confined spaces in shipyard work. OSHA’s standard covering confined and enclosed spaces in shipyard employment requires an employer to ensure that confined or enclosed spaces that contain or have contained toxic liquids, gases, or solids are inspected visually by a competent person to determine the presence of toxic residue contaminants and tested by a competent person before entry by an employee to determine the air concentration of toxic substances. 29 CFR 1915.12. Employees may not enter a space whose atmosphere exceeds a PEL except for emergency rescue, or for a short duration for installation of ventilation equipment, provided that the atmosphere in the space is monitored continuously and respiratory protection and other necessary and appropriate PPE and clothing are provided. If the beryllium PEL is exceeded in a space, the space must be labeled ‘‘Not Safe for Workers’’ and ventilation must be provided to reduce air concentrations to below the PEL. OSHA requests information on the prevalence of blasting in confined or enclosed spaces in shipyards. 2. Welding Welding in shipyards is likewise covered by OSHA standards. OSHA PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 found, after a review of shipyard personal protective equipment requirements, that gloves are required under 29 CFR 1915.157(a) to protect workers from hazards faced by welders, such as thermal burns. 29 CFR 1915.51 requires that ventilation be used to keep welding fumes and smoke within safe limits, and 29 CFR 1915.51(d)(2)(iv) specifically covers welding involving beryllium: ‘‘Because of its high toxicity, work involving beryllium shall be done with both local exhaust ventilation and air line respirators.’’ These safe limits in 1915.51 are defined by the PELs in 29 CFR 1915.1000 Table Z, which currently has a beryllium TWA PEL of 2.0 mg/m3 and which OSHA proposes to lower to 0.2 mg/m3, along with a STEL of 2.0 mg/ m3.37 And, as previously discussed, OSHA standard 1915.12 includes protections for shipyard employees who perform welding in confined or enclosed spaces, limiting access to enclosed spaces where beryllium exposures exceed the PEL and requiring exposure monitoring, ventilation, warning signs, and PPE including respiratory protection in such spaces. The training provisions of the hazard communication standard apply to shipyard welding operations as well. OSHA seeks comment on beryllium exposures and existing protections among shipyard welders, and on whether the reduced beryllium PEL and STEL provides sufficient protection to these workers. I. Consultation With the Advisory Committee on Construction Safety and Health Under 29 CFR 1911.10(a), OSHA must consult with the Advisory Committee on Construction Safety and Health (ACCSH) ‘‘in the formulation of a rule to promulgate, modify, or revoke a standard.’’ In May 2014, OSHA presented options to ACCSH for the promulgation of the beryllium rule. These options were (1) reducing the exposure limits in construction to the same level as the proposed exposure limits in general industry, (2) reducing the exposure limits and including a medical surveillance requirement, and (3) including construction in the scope of the rule and including the same ancillary provisions as in general industry. OSHA discussed the types of ancillary provisions that would be included but did not provide regulatory text. Some ACCSH members asked 37 The January 2017 final rule lowered the PELs in shipyards in 29 CFR 1915.1024. Because OSHA is now proposing to revoke the ancillary provisions for shipyards while retaining the lower PELs, this proposal would amend the PELs in Table Z of 29 CFR 1915.1000 to reflect the new lower PELs. E:\FR\FM\27JNP2.SGM 27JNP2 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules OSHA for more information, including draft regulatory text, before providing OSHA with a recommendation. Without that information, ten members voted for the third option, and four members abstained from voting. The January 9, 2017 final rule followed ACCSH’s recommendation. However, ACCSH’s recommendation was not unanimous, and as discussed above, OSHA is reconsidering the ancillary provisions for construction. This is based on the fact that the available data show exposures of concern only in abrasive blasting operations, and workers engaged in those operations are already provided protection by a number of other standards. OSHA notes that this proposal is the first option that was presented to ACCSH at the May 2014 meeting. mstockstill on DSK30JT082PROD with PROPOSALS2 II. Proposed Regulatory Text OSHA proposes, based on feedback from interested parties and a reevaluation of the applicability of existing OSHA standards, to remove the ancillary provisions of the comprehensive health standards in both construction and shipyards, but maintain the new lower PEL of 0.2 mg/ m3 and the STEL of 2.0 mg/m3. This would entail revoking both 29 CFR 1915.1024 and 29 CFR 1926.1124. It would also require amending 29 CFR 1915.1000 Table Z, and 29 CFR 1926.55 Appendix A. The entry for beryllium and beryllium compounds in section 1915.1000 Table Z would be amended to include a ‘‘STEL’’ designation after the ‘‘.002’’ entry to indicate that 2 mg/ m3 (.002 mg/m3) is a short term exposure limit, not an 8-hour TWA PEL. The entry would also be amended to add a ‘‘.0002’’ to reflect the change from an 8-hour TWA PEL to .2 mg/m3 (.0002 mg/m3). The references to 1915.1024 would be removed. OSHA would also add a new subparagraph, 29 CFR 1915.1000(a)(3), explaining that a STEL is a short term exposure limit as measured over a fifteen-minute period, and amend the text to footnote * to include similar text. Similarly, the entry for beryllium and beryllium compounds in Appendix A to 29 CFR 1926.55 would be amended to include a ‘‘STEL’’ designation after the ‘‘.002’’ entry to indicate that 2 mg/m3 (.002 mg/m3) is a short term exposure limit, not an 8-hour TWA PEL. The entry would also be amended to add a ‘‘.0002’’ to reflect the change from an 8-hour TWA PEL to .2 mg/m3 (.0002 mg/m3). The references to 1926.1124 would be removed. OSHA would also amend footnote * to explain that a STEL is a short term exposure VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 limit as measured over a fifteen-minute period. Because OSHA has determined that significant risk remains at the PEL of 0.2 mg/m3 and several OSHA construction and shipyard standards rely on the PEL for a portion of their provisions, the Agency believes it is necessary to protect workers in construction and shipyards using the permissible exposure limits promulgated in the January 9, 2017 final rule. When considering the need for ancillary measures in the January 9, 2017 final rule, OSHA stated that it adopted ancillary provisions for construction and shipyards ‘‘to ensure that workers exposed to beryllium in the construction and shipyard industries are provided protection that is comparable to the protection afforded workers in general industry.’’ (82 FR 2639–40). As discussed above, OSHA is reconsidering the need for the ancillary provisions, given the limited operations that are covered and the other OSHA standards that apply to those operations. This proposal to revoke the ancillary provisions for construction and shipyards while retaining the new PELs is intended to provide opportunity for further comment on these issues, and will allow OSHA to craft a new final rule with more extensive and detailed stakeholder input than the January 9, 2017 final rule. III. Request for Comment on This Proposal and the Application of the January 9, 2017 Final Rule to the Construction and Shipyard Industries OSHA provided adequate legal notice to interested parties in its 2015 NPRM by including regulatory alternatives that expanded the scope of the standard to the construction and shipyard sectors and including preliminary technological feasibility and economic feasibility analyses for those sectors. Many parties took note and commented on the application of the standard to construction and shipyards (e.g., ABMA, Document ID 1673; NABTU, Document ID 1679). However, despite the notice, other interested parties in the construction industry did not comment until the proposed delay of the effective date. (See Document ID 2058). Without robust participation from the construction and shipyard sectors, the Agency had limited data on which to proceed. While OSHA continues to believe that the best available evidence in the rulemaking record in January 9, 2017 supported the expansion of the scope of the rule to construction and shipyards, it is also within OSHA’s discretion to reevaluate that decision in light of the PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 29223 limited data and concern from the regulated community. OSHA therefore seeks comment on this proposal to revoke the ancillary provisions for construction and shipyards while retaining the lower PEL and STEL. In particular, OSHA seeks input from interested stakeholders on the degree to which each provision, or combination thereof, provides (or does not provide) additional protections to exposed workers. OSHA requests that commenters provide data to support their position. In addition, OSHA seeks information on the steps that employers are currently taking to protect exposed employees. OSHA also seeks additional information and data commenters may have on the costs of compliance with the measures required by the January 9, 2017 final rule, including in particular the costs that small entities would incur. In addition to the proposal in this notice, OSHA is considering extending the compliance dates in the January 9, 2017 final rule by a year for the construction and shipyard standards. This would give affected employers additional time to come into compliance with its requirements, which could be warranted by the uncertainty created by this proposal. OSHA also seeks comment on that possibility, and also the amount of additional time employers would need to come into compliance with the current proposal, if adopted. As noted in the introduction above, while the entire beryllium rule will go into effect on May 20, 2017, OSHA will not enforce the January 9, 2017 shipyard and construction standards without further notice while this new rulemaking is underway. List of Subjects in 29 CFR Parts 1915 and 1926 Beryllium, Cancer, Chemicals, Hazardous substances, Health, Occupational safety and health. Authority and Signature This document was prepared under the direction of Dorothy Dougherty, Deputy Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. The Agency issues the sections under the following authorities: 29 U.S.C. 653, 655, 657; 40 U.S.C. 3704; 33 U.S.C. 941; Secretary of Labor’s Order 1–2012 (77 FR 3912 (1/25/2012)); and 29 CFR part 1911. E:\FR\FM\27JNP2.SGM 27JNP2 29224 Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Proposed Rules Signed at Washington, DC, on June 15, 2017. Dorothy Dougherty, Deputy Assistant Secretary of Labor for Occupational Safety and Health. Amendments to Standards For the reasons set forth in the preamble, Chapter XVII of Title 29, parts 1915 and 1926, of the Code of Federal Regulations is proposed to be amended as follows: PART 1915—OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD EMPLOYMENT 1. The authority citation for part 1915 continues to read as follows: ■ Authority: 33 U.S.C. 941; 29 U.S.C. 653, 655, 657; Secretary of Labor’s Order No. 12– 71 (36 FR 8754); 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), 5–2007 (72 FR 31160), 4–2010 (75 FR 55355), or 1–2012 (77 FR 3912); 29 CFR part 1911; and 5 U.S.C. 553, as applicable. § 1915.1024 ■ [Removed]. 2. Remove § 1915.1024. § 1915.1000 [Amended] 3. Amend § 1915.1000 by redesignating paragraph (a)(2) as paragraph (a)(3), and adding new paragraph (a)(2) to read as follows: * * * * * (a)(2) Substances with Short-Term Exposure Limits (‘‘STEL’’). An ■ employee’s exposure to any substance in Table Z—Shipyards, the exposure limit of which is designated as a ‘‘STEL,’’ shall not exceed the exposure limit given for that substance over a sampling period of 15 minutes. * * * * * ■ 4. In § 1915.1000 amend Table Z— Shipyards, by revising the entry for ‘‘Beryllium and beryllium compounds (as Be),’’ removing reference to § 1915.1024, revising footnote *, and removing footnote q. The revisions read as follows: § 1915.1000 * * Air contaminants. * * * TABLE Z—SHIPYARDS * * Beryllium and beryllium compounds (as Be) ................... * ppm a * CAS No.d Substance * * 7440–41–7 mg/m3 b * Skin designation * ........................ * * * 0.0002; 0.002 STEL ....................................................... ........................ * * * * * * * * * * * * * The PELs are 8-hour TWAs unless otherwise noted; a (C) designation denotes a ceiling limit; a STEL designation denotes a 15-minute short-term exposure limit. They are to be determined from breathing-zone air samples. a Parts of vapor or gas per million parts of contaminated air by volume at 25 °C and 760 torr. b Milligrams of substance per cubic meter of air. When entry is in this column only, the value is exact; when listed with a ppm entry, it is approximate. * * * * * * * * PART 1926—SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION Subpart D—Occupational Health and Environmental Controls 5. The authority citation for subpart D of part 1926 continues to read as follows: ■ Authority: 40 U.S.C. 3704; 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 1926.61 also issued under 49 U.S.C. 5101 et seq. Section 1926.62 also issued under 42 U.S.C. 4853. Section 1926.65 also issued under 126 of Pub. L. 99–499, 100 Stat. 1613. § 1926.1124 [Removed]. 6. Remove § 1926.1124. 7. In § 1926.55, amend appendix A by revising the entry for ‘‘Beryllium and beryllium compounds (as Be),’’ ■ ■ CAS No.d Substance * * Beryllium and beryllium compounds (as Be) ................... * * * ppm a * * 7440–41–7 * ........................ * * * removing reference to § 1926.1124, revising footnote *, and removing footnote q. The revisions read as follows: § 1926.55 Gases, vapors, fumes, dusts, and mists. * * * * * Appendix A to § 1926.55—1970 American Conference of Governmental Industrial Hygienists’ Threshold Limit Values of Airborne Contaminants Threshold Limit Values of Airborne Contaminants for Construction mg/m3 Skin designation b * * * 0.0002; 0.002 STEL ....................................................... * * * ........................ * mstockstill on DSK30JT082PROD with PROPOSALS2 * * * * * * * * The PELs are 8-hour TWAs unless otherwise noted; a (C) designation denotes a ceiling limit; a STEL designation denotes a 15-minute short-term exposure limit. a Parts * * * * * * * of vapor or gas per million parts of contaminated air by volume at 25 °C and 760 torr. of substance per cubic meter of air. When entry is in this column only, the value is exact; when listed with a ppm entry, it is approximate. b Milligrams * * * * * [FR Doc. 2017–12871 Filed 6–23–17; 8:45 am] BILLING CODE 4510–26–P VerDate Sep<11>2014 19:38 Jun 26, 2017 Jkt 241001 PO 00000 Frm 00044 Fmt 4701 Sfmt 9990 E:\FR\FM\27JNP2.SGM 27JNP2

Agencies

[Federal Register Volume 82, Number 122 (Tuesday, June 27, 2017)]
[Proposed Rules]
[Pages 29182-29224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12871]



[[Page 29181]]

Vol. 82

Tuesday,

No. 122

June 27, 2017

Part II





 Department of Labor





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Occupational Safety and Health Administration





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29 CFR Parts 1915 and 1926





 Occupational Exposure to Beryllium and Beryllium Compounds in 
Construction and Shipyard Sectors; Proposed Rule

Federal Register / Vol. 82 , No. 122 / Tuesday, June 27, 2017 / 
Proposed Rules

[[Page 29182]]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1915 and 1926

[Docket No. OSHA-H005C-2006-0870]
RIN 1218-AB76


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) 
proposes to revoke the ancillary provisions for the construction and 
the shipyard sectors that OSHA adopted on January 9, 2017 but retain 
the new lower permissible exposure limit (PEL) of 0.2 [mu]g/m\3\ and 
the short term exposure limit (STEL) of 2.0 [mu]g/m\3\ for each sector. 
OSHA will not enforce the January 9, 2017 shipyard and construction 
standards without further notice while this new rulemaking is underway. 
This proposal does not affect the general industry beryllium standard 
published on January 9, 2017.

DATES: Written comments. Written comments, including comments on the 
information collection determination described in Section VII of the 
preamble (OMB Review under the Paperwork Reduction Act of 1995), must 
be submitted (postmarked, sent, or received) by August 28, 2017.
    Informal public hearings. The Agency will schedule an informal 
public hearing on the proposed rule if requested during the comment 
period. The location and date of the hearing, procedures for interested 
parties to notify the Agency of their intention to participate, and 
procedures for participants to submit their testimony and documentary 
evidence will be announced in the Federal Register if a hearing is 
requested.

ADDRESSES: Written comments. You may submit comments, identified by 
Docket No. OSHA-H005C-2006-0870, by any of the following methods:
    Electronically: You may submit comments and attachments 
electronically at http://www.regulations.gov, which is the Federal e-
Rulemaking Portal. Follow the instructions on-line for making 
electronic submissions. When uploading multiple attachments into 
Regulations.gov, please number all of your attachments because 
www.Regulations.gov will not automatically number the attachments. This 
will be very useful in identifying all attachments in the beryllium 
rule. For example, Attachment 1_title of your document, Attachment 2_
title of your document, Attachment 3_title of your document, etc. 
Specific instructions for uploading documents are found in the 
Frequently Asked Questions portion and the commenter check list on 
Regulations.gov.
    Fax: If your submissions, including attachments, are not longer 
than 10 pages, you may fax them to the OSHA Docket Office at (202) 693-
1648.
    Mail, hand delivery, express mail, messenger, or courier service: 
You may submit your comments to the OSHA Docket Office, Docket No. 
OSHA-H005C-2006-0870, Room N-3653, U.S. Department of Labor, 200 
Constitution Avenue NW., Washington, DC 20210, telephone (202) 693-2350 
(OSHA's TTY number is (877) 889-5627). OSHA's Docket Office accepts 
deliveries (hand deliveries, express mail, and messenger/courier 
service) from 10 a.m. to 3 p.m. e.t., weekdays.
    Instructions: All submissions must include the Agency name and the 
docket number for this rulemaking (Docket No. OSHA-H005C-2006-0870). 
All comments, including any personal information you provide, are 
placed in the public docket without change and may be made available 
online at http://www.regulations.gov. Therefore, OSHA cautions you 
about submitting personal information such as Social Security numbers 
and birthdates.
    Docket: To read or download comments and materials submitted in 
response to this Federal Register notice, go to Docket No. OSHA-H005C-
2006-0870 at http://www.regulations.gov, or to the OSHA Docket Office 
at the address above. All comments and submissions are listed in the 
http://www.regulations.gov index; however, some information (e.g., 
copyrighted material) is not publicly available to read or download 
through that Web site. All comments and submissions are available for 
inspection at the OSHA Docket Office.
    Electronic copies of this Federal Register document are available 
at http://www.regulations.gov. Copies also are available from the OSHA 
Office of Publications, Room N-3101, U.S. Department of Labor, 200 
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1888. This document, as well as news releases and other relevant 
information, is also available at OSHA's Web site at http://www.osha.gov.

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries, contact Frank Meilinger, Director, Office of Communications, 
Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue 
NW., Washington, DC 20210; telephone: (202) 693-1999; email: 
meilinger.francis2@dol.gov. For technical inquiries, contact: William 
Perry or Maureen Ruskin, Directorate of Standards and Guidance, Room N-
3718, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone (202) 693-1955 or fax (202) 693-1678; 
email: ruskin.maureen@dol.gov.

SUPPLEMENTARY INFORMATION: The preamble to this proposed rule on 
occupational exposure to beryllium and beryllium compounds follows this 
outline:

I. Executive Summary and Regulatory Issues
II. Pertinent Legal Authority
III. Events Leading to the Proposal
IV. Technological Feasibility Summary
V. Preliminary Economic Analysis
VI. Economic Feasibility and Regulatory Flexibility Certification
VII. OMB Review Under the Paperwork Reduction Act of 1995
VIII. Federalism
IX. State-Plan States
X. Unfunded Mandates Reform Act
XI. Protecting Children From Environmental Health and Safety Risks
XII. Environmental Impacts
XIII. Consultation and Coordination With Indian Tribal Governments
XIV. Public Participation
XV. Summary and Explanation of the Proposal
Authority and Signature
Amendments to Standards

I. Executive Summary and Regulatory Issues

    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--for general industry, for 
shipyards, and for 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

[[Page 29183]]

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.
    On March 21, 2017 OSHA published a delay of the effective date for 
the final beryllium rule to May 20, 2017 in the Federal Register (82 FR 
14439). This action was based on comments received on OSHA's proposed 
delay of effective date for the final rule in the Federal Register (82 
FR 12318). OSHA proposed this delay in accordance with the January 20, 
2017 Presidential directive from the Assistant to the President and 
Chief of Staff, entitled ``Regulatory Freeze Pending Review'' (82 FR 
8346 (1/24/17)) that directed agencies to consider further delaying the 
effective date for regulations beyond the initial 60-day period.
    After a further review of the comments received on the proposed 
extension, as well as a review of the applicability of existing OSHA 
standards, OSHA is proposing to revoke the ancillary provisions 
applicable to the construction and shipyard sectors, but to retain the 
new lower PEL of 0.2 [mu]g/m\3\ and the STEL of 2.0 [mu]g/m\3\ for 
those sectors. In the final rule, OSHA reviewed the exposure data for 
abrasive blasting in construction and shipyards and welding in 
shipyards and determined that there is a significant risk of chronic 
beryllium disease (CBD) and lung cancer to workers in construction and 
shipyards based on the exposure levels observed. Because OSHA 
determined that there is significant risk of material impairment of 
health at the new lower PEL of 0.2 [mu]g/m\3\, the Agency continues to 
believe that it is necessary to protect workers exposed at this level. 
However, OSHA is now reconsidering the need for ancillary provisions in 
the construction and shipyards sectors. OSHA has evidence that 
beryllium exposure in these sectors is limited to the following 
operations: Abrasive blasting in construction, abrasive blasting in 
shipyards, and welding in shipyards. OSHA has a number of standards 
already applicable to these operations, including ventilation (29 CFR 
1926.57) and mechanical paint removers (29 CFR 1915.34). In addition, 
this proposal provides stakeholders with an additional opportunity to 
offer comments on the protections needed for workers exposed to 
beryllium in the construction and shipyard sectors, including the need 
for the ancillary provisions in the January 9, 2017 construction and 
shipyard beryllium standards. This will give OSHA additional 
information as it further considers the January 9, 2017 final rule's 
provisions for these sectors.
    While the new beryllium rule went into effect on May 20, 2017, 
compliance obligations do not begin until March 12, 2018. Moreover, 
OSHA will not enforce the January 9, 2017 shipyard and construction 
standards without further notice while this new rulemaking is underway.
    OSHA requests feedback on issues associated with the proposed 
regulatory action and requests information that would help the Agency 
craft the final rule. The Agency welcomes comments concerning all 
aspects of this proposal. However, OSHA is especially interested in 
responses, supported by evidence and reasons, to the following 
questions:
    1. OSHA has proposed revoking the ancillary provisions for the 
construction and shipyard sectors while retaining the new (lower) PEL 
of 0.2 [mu]g/m\3\ and STEL of 2.0 [mu]g/m\3\ for those sectors. Does 
this provide adequate protection to the workers in construction and 
shipyard sectors considering the other standards that apply? Should 
OSHA keep any or all of the ancillary provisions of the January 9, 2017 
final rule for construction and shipyards? If so, which ones?
    2. In particular, what is the incremental benefit if OSHA keeps the 
medical surveillance requirements for construction and shipyards 
described in the January 9, 2017 final rule, but revokes the other 
ancillary provisions? Alternatively, should OSHA keep some of the 
medical surveillance requirements for construction and shipyards but 
not others? Which medical surveillance requirements are most 
appropriate for beryllium-exposed workers in these sectors, if any? For 
more information, see Regulatory Alternative #21a, PELs plus medical 
surveillance (lowering the PEL and requiring medical surveillance when 
exposed above the PEL for operations outside the scope of the proposed 
rule), in the 2015 NPRM (80 FR 47565 (8/7/15)). OSHA's estimates of the 
medical surveillance costs changed between the NPRM and final rule 
because of a change of the medical surveillance trigger from the action 
level to the PEL; updated exposure data and hire rates; and revised 
unit costs in response to comments and conversion from 2010 to 2015 
dollars.
    3. In addition to the proposal in this notice, OSHA is considering 
extending the compliance dates in the January 9, 2017 final rule by a 
year for the construction and shipyard standards. This would give 
affected employers additional time to come into compliance with its 
requirements, which could be warranted by the uncertainty created by 
this proposal.
    In the January 9, 2017 final rule, OSHA analyzed the technological 
and economic feasibility of complying with the rule for the 
construction and shipyard sectors and found that the rule was 
technologically and economically feasible for these sectors. Since the 
changes we propose today will retain the new PELs and eliminate the 
ancillary provisions, these changes will not affect the feasibility 
findings. The technological and economic feasibility of the January 9, 
2017 final rule is established in the FEA, which is summarized in 
Sections IV and VI of this preamble.
    Table I-1, which is based on the material presented in the 2016 FEA 
with updated assumptions, provides OSHA's best estimate of the cost 
savings to shipyard and construction establishments in all affected 
application groups as a result of this proposal to remove all of the 
ancillary provision requirements in those sectors. OSHA is proposing to 
remove the following ancillary provisions: Exposure monitoring, 
regulated areas (and competent person in construction), a written 
exposure control plan, protective equipment and work clothing, hygiene 
areas and practices, housekeeping, medical surveillance, medical 
removal, and worker training. Note that, because OSHA is not proposing 
to change the January 9, 2017 PELs and STELs in this proposal, OSHA has 
not estimated any cost savings related to engineering controls or 
respirators. Note also that, although not a requirement in the January 
9, 2017 beryllium standards, OSHA estimated costs there for rule 
familiarization. Since some employers may have already incurred 
familiarization costs in reviewing those published standards, OSHA 
views them as sunk costs and has not included them in the estimated 
cost savings. Furthermore, OSHA has added some modest costs in this 
proposal to reflect the fact that construction and shipyard employers 
would be expected to devote some time becoming familiar with the 
revocation of the January 9, 2017 ancillary provisions.

[[Page 29184]]



 Table I-1--Total Annualized Cost Savings, by Sector and Six-Digit NAICS Industry, for Entities Affected by the
                               Beryllium Proposal; Results Shown by Size Category
                                     [3 percent discount rate, 2016 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                  Very small
   Application group/NAICS            Industry        All establishments    Small entities      entities  (<20
                                                                             (SBA-defined)        Employees)
----------------------------------------------------------------------------------------------------------------
                                         Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320.......................  Painting and Wall              $4,087,412          $3,445,984          $2,420,659
                                Covering Contractors.
238990.......................  All Other Specialty             3,787,418           2,916,925           1,998,054
                                Trade Contractors.
----------------------------------------------------------------------------------------------------------------
                                          Abrasive Blasting--Shipyards
----------------------------------------------------------------------------------------------------------------
336611a......................  Ship Building and               3,081,907             990,140             524,187
                                Repairing.
----------------------------------------------------------------------------------------------------------------
                                              Welding in Shipyards
----------------------------------------------------------------------------------------------------------------
336611b......................  Ship Building and                  34,217              11,283               6,421
                                Repairing.
----------------------------------------------------------------------------------------------------------------
                                                      Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal........  .....................           7,874,830           6,362,909           4,418,712
Maritime Subtotal............  .....................           3,116,125           1,001,423             530,608
                                                     -----------------------------------------------------------
Total, All Industries........  .....................          10,990,954           7,364,331           4,949,321
----------------------------------------------------------------------------------------------------------------
Notes: Figures in rows may not add to totals due to rounding.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use
  mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may
  do both welding and abrasive blasting.
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.

    The remainder of this preamble presents the legal requirements of 
the Occupational Safety and Health Act (OSH Act) (Section II, Pertinent 
Legal Authority); a summary of the events leading to the proposal 
(Section III); the technological feasibility summary (Section IV); the 
preliminary economic analysis for the proposal (Section V); the 
preliminary economic feasibility findings and the regulatory 
flexibility certification for the proposal (Section VI); a summary of 
the analysis of this proposal under the Paperwork Reduction Act of 1995 
(Section VII); analyses under various executive orders and a 
description of the implications for State-Plan States (Sections VIII-
XIII); instructions for public participation (Section XIV); and the 
summary and explanation of OSHA's proposal to maintain the TWA PEL of 
0.2 [mu]g/m\3\ and STEL of 2 [mu]g/m\3\ for operations in construction 
and shipyards while revoking the January 9, 2017 ancillary provisions 
for these sectors (Section XV).

II. Pertinent Legal Authority

    The purpose of the Occupational Safety and Health Act of 1970 
(``the OSH Act'' or ``the Act''), 29 U.S.C. 651 et al., is ``to assure 
so far as possible every working man and woman in the Nation safe and 
healthful working conditions and to preserve our human resources.'' 29 
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary 
of Labor to promulgate occupational safety and health standards 
pursuant to notice and comment. See 29 U.S.C. 655(b).
    An occupational safety or health standard is a standard ``which 
requires conditions, or the adoption or use of one or more practices, 
means, methods, operations, or processes, reasonably necessary or 
appropriate to provide safe or healthful employment and places of 
employment.'' 29 U.S.C. 652(8).
    The Act provides that in promulgating health standards dealing with 
toxic materials or harmful physical agents, such as the January 9, 2017 
final rule regulating occupational exposure to beryllium,

[t]he Secretary . . . shall set the standard which most adequately 
assures, to the extent feasible, on the basis of the best available 
evidence that no employee will suffer material impairment of health 
or functional capacity even if such employee has regular exposure to 
the hazard dealt with by such standard for the period of his working 
life.

29 U.S.C. 655(b)(5). The Supreme Court has held that before the 
Secretary can promulgate any permanent health or safety standard, he 
must make a threshold finding that significant risk is present and that 
such risk can be eliminated or lessened by a change in practices. See 
Industrial Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 
641-42 (1980) (plurality opinion) (``Benzene''). Thus, section 6(b)(5) 
of the Act requires health standards to reduce significant risk to the 
extent feasible. See id.
    The Court further observed that what constitutes ``significant 
risk'' is ``not a mathematical straitjacket'' and must be ``based 
largely on policy considerations.'' Id. at 655, 655 n.62. OSHA retains

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

    United Steelworkers v. Marshall, 647 F.2d 1189, 1248 (D.C. Cir. 
1980) (``Lead I'') (internal citations omitted). When evaluating such 
considerations, OSHA exercises its discretion and its ``delegated power 
to make within certain limits decisions that Congress normally makes 
itself.'' Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 475 
(D.C. Cir. 1974). Accordingly, OSHA's discretionary authority under the 
Act is broad. See Lead I, 647 F.2d at 1230. Indeed, ``[a] number of 
terms of the statute give OSHA almost unlimited discretion to devise 
means to achieve the congressionally mandated goal'' of ensuring worker 
safety and health. Id. (citation omitted). Once OSHA makes its 
significant risk finding, the standard

[[Page 29185]]

must be ``reasonably necessary or appropriate'' to reduce or eliminate 
that risk within the meaning of section 3(8) of the Act (29 U.S.C. 
652(8)) and Benzene (448 U.S. at 642). See Bldg. and Constr. Trades 
Dep't v. Brock, 838 F.2d 1258, 1269 (D.C. Cir. 1988) (``Asbestos II''). 
In choosing among regulatory alternatives, however, ``[t]he 
determination that [one standard] is appropriate, as opposed to a 
marginally [more or less protective] standard, is a technical decision 
entrusted to the expertise of the agency.'' Nat'l Mining Ass'n v. Mine 
Safety and Health Admin., 116 F.3d 520, 528 (D.C. Cir. 1997) (analyzing 
a Mine Safety and Health Administration standard under the Benzene 
significant risk standard). Where there is significant risk below the 
PEL, OSHA should use its regulatory authority to impose additional 
requirements on employers when those requirements will result in a 
greater than de minimis incremental benefit to workers' health. See 
Asbestos II, 838 F.2d at 1274.
    The Act also authorizes the Secretary to ``modify'' or ``revoke'' 
any occupational safety or health standard. 29 U.S.C. 655(b). The 
Supreme Court has acknowledged that regulatory agencies do not 
establish rules of conduct to last forever, and agencies may revise 
their rules if supported by a reasoned analysis for the change. See 
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 
29, 42 (1983). ``While the removal of a regulation may not entail the 
monetary expenditures and other costs of enacting a new standard, and 
accordingly, it may be easier for an agency to justify a deregulatory 
action, the direction in which an agency chooses to move does not alter 
the standard of judicial review established by law.'' Id. at 43.
    OSHA is required to set standards ``on the basis of the best 
available evidence,'' 29 U.S.C. 655(b)(5), and its determinations are 
``conclusive'' if supported by ``substantial evidence in the record 
considered as a whole,'' 29 U.S.C. 655(f). As noted above, the Supreme 
Court, in Benzene, explained that OSHA must look to ``a body of 
reputable scientific thought'' in making its determinations, while 
noting that a reviewing court must ``give OSHA some leeway where its 
findings must be made on the frontiers of scientific knowledge.'' 448 
U.S. at 656. When there is disputed scientific evidence in the record, 
OSHA must review the evidence on both sides and ``reasonably resolve'' 
the dispute. Pub. Citizen Health Research Grp. v. Tyson, 796 F.2d 1479, 
1500 (D.C. Cir. 1986). As the D.C. Circuit has noted, where ``OSHA has 
the expertise we lack and it has exercised that expertise by carefully 
reviewing the scientific data,'' a dispute within the scientific 
community is not occasion for the reviewing court to take sides about 
which view is correct. Id.
    OSHA standards must be both technologically and economically 
feasible. See Lead I, 647 F.2d at 1264. The Supreme Court has defined 
feasibility as ``capable of being done.'' Am. Textile Mfrs. Inst. v. 
Donovan, 452 U.S. 490, 509-10 (1981) (``Cotton Dust''). The courts have 
further clarified that a standard is technologically feasible if OSHA 
proves a reasonable possibility, ``within the limits of the best 
available evidence, . . . that the typical firm will be able to develop 
and install engineering and work practice controls that can meet the 
PEL in most of its operations.'' Lead I, 647 F.2d at 1272.
    With respect to economic feasibility, the courts have held that ``a 
standard is feasible if it does not threaten massive dislocation to or 
imperil the existence of the industry.'' Id. at 1265 (internal 
quotation marks and citations omitted). A court must examine the cost 
of compliance with an OSHA standard

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

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

Congress itself defined the basic relationship between costs and 
benefits, by placing the ``benefit'' of worker health above all 
other considerations save those making attainment of this 
``benefit'' unachievable. Any standard based on a balancing of costs 
and benefits by the Secretary that strikes a different balance than 
that struck by Congress would be inconsistent with the command set 
forth in Sec.  6(b)(5).

Cotton Dust, 452 U.S. at 509. Thus, while OSHA estimates the costs and 
benefits of its proposed and final rules, in part to ensure compliance 
with requirements such as those in Executive Orders 12866 and 13771, 
these calculations do not form the basis for the Agency's regulatory 
decisions.

III. Events Leading to the Proposal

    The first occupational exposure limit for beryllium was set in 1949 
by the Atomic Energy Commission (AEC), which required that beryllium 
exposure in the workplaces under its jurisdiction be limited to 2 
[mu]g/m\3\ as an 8-hour time-weighted average (TWA), and 25 [mu]g/m\3\ 
as a peak exposure never to be exceeded (Document ID 1323). These 
exposure limits were adopted by all AEC installations handling 
beryllium, and were binding on all AEC contractors involved in the 
handling of beryllium.
    In 1956, the American Industrial Hygiene Association (AIHA) 
published a Hygienic Guide which supported the AEC exposure limits. In 
1959, the American Conference of Governmental Industrial Hygienists 
(ACGIH[supreg]) also adopted a Threshold Limit Value (TLV[supreg]) of 2 
[mu]g/m\3\ as an 8-hour TWA (Document ID 0498). In 1970, the American 
National Standards Institute (ANSI) issued a national consensus 
standard for beryllium and beryllium compounds (ANSI Z37.29-1970). The 
standard set a permissible exposure limit (PEL) for beryllium and 
beryllium compounds at 2 [mu]g/m\3\ as an 8-hour TWA; 5 [mu]g/m\3\ as 
an acceptable ceiling concentration; and 25 [mu]g/m\3\ as an acceptable 
maximum peak above the acceptable ceiling concentration for a maximum 
duration of 30 minutes in an 8-hour shift (Document ID 1303).
    In 1971, OSHA adopted, under Section 6(a) of the Occupational 
Safety and Health Act of 1970, and made applicable to general industry, 
the ANSI standard (Document ID 1303). Section 6(a) provided that in the 
first two years after the effective date of the Act, OSHA was to 
promulgate ``start-up'' standards, on an expedited basis and without 
public hearing or comment, based on national consensus or established 
Federal standards that improved employee safety or health. Pursuant to 
that authority, in 1971, OSHA promulgated approximately 425 PELs for 
air contaminants, including beryllium, derived principally from Federal 
standards applicable to government contractors under the Walsh-Healey 
Public Contracts Act, 41 U.S.C. 35, and the Contract Work Hours and 
Safety Standards Act (commonly

[[Page 29186]]

known as the Construction Safety Act), 40 U.S.C. 333. The Walsh-Healey 
Act and Construction Safety Act standards, in turn, had been adopted 
primarily from ACGIH[supreg]'s TLV[supreg]s as well as several from 
United States of America Standards Institute (USASI) (later the 
American National Standards Institute (ANSI)).
    The National Institute for Occupational Safety and Health (NIOSH) 
issued a document entitled Criteria for a Recommended Standard: 
Occupational Exposure to Beryllium (Criteria Document) in June 1972 
with Recommended Exposure Limits (RELs) of 2 [mu]g/m\3\ as an 8-hour 
TWA and 25 [mu]g/m\3\ as an acceptable maximum peak above the 
acceptable ceiling concentration for a maximum duration of 30 minutes 
in an 8-hour shift (Document ID 1324). OSHA reviewed the findings and 
recommendations contained in the Criteria Document along with the AEC 
control requirements for beryllium exposure. OSHA also considered 
existing data from animal and epidemiological studies, and studies of 
industrial processes of beryllium extraction, refinement, fabrication, 
and machining. In 1975, OSHA asked NIOSH to update the evaluation of 
the existing data pertaining to the carcinogenic potential of 
beryllium. In response to OSHA's request, the Director of NIOSH stated 
that, based on animal data and through all possible routes of exposure 
including inhalation, ``beryllium in all likelihood represents a 
carcinogenic risk to man.''
    In October 1975, OSHA proposed a new beryllium standard for all 
industries based on information from studies finding that beryllium 
caused cancer in animals (40 FR 48814 (10/17/75)). Adoption of this 
proposal would have lowered the 8-hour TWA exposure limit from 2 [mu]g/
m\3\ to 1 [mu]g/m\3\. In addition, the proposal included ancillary 
provisions for such topics as exposure monitoring, hygiene facilities, 
medical surveillance, and training related to the health hazards from 
beryllium exposure. The rulemaking was never completed.
    In 1977, NIOSH recommended an exposure limit of 0.5 [mu]g/m\3\ and 
identified beryllium as a potential occupational carcinogen. In 
December 1998, ACGIH published a Notice of Intended Change for its 
beryllium exposure limit. The notice proposed a lower TLV of 0.2 [mu]g/
m\3\ over an 8-hour TWA based on evidence of CBD and sensitization in 
exposed workers. Then in 2009, ACGIH adopted a revised TLV for 
beryllium that lowered the 8-hour TWA to 0.05 [mu]g/m\3\ (inhalable) 
(see Document ID 1755, Tr. 136).
    In 1999, the Department of Energy (DOE) issued a Chronic Beryllium 
Disease Prevention Program (CBDPP) Final Rule for employees exposed to 
beryllium in its facilities (Document ID 1323). The DOE rule set an 
action level of 0.2 [mu]g/m\3\, and adopted OSHA's PEL of 2 [mu]g/m\3\ 
or any more stringent PEL OSHA might adopt in the future (10 CFR 
850.22; 64 FR 68873 and 68906, Dec. 8, 1999).
    Also in 1999, OSHA was petitioned by the Paper, Allied-Industrial, 
Chemical and Energy Workers International Union (PACE) (Document ID 
0069) and by Dr. Lee Newman and Ms. Margaret Mroz, from the National 
Jewish Health (NJH) (Document ID 0069), to promulgate an Emergency 
Temporary Standard (ETS) for beryllium in the workplace. In 2001, OSHA 
was petitioned for an ETS by Public Citizen Health Research Group and 
again by PACE (Document ID 0069). In order to promulgate an ETS, the 
Secretary of Labor must prove (1) that employees are exposed to grave 
danger from exposure to a hazard, and (2) that such an emergency 
standard is necessary to protect employees from such danger (29 U.S.C. 
655(c) [section 6(c)]). The burden of proof is on the Department and 
because of the difficulty of meeting this burden, the Department 
usually proceeds when appropriate with ordinary notice and comment 
[section 6(b)] rulemaking rather than a section 6(c) ETS. Thus, instead 
of granting the ETS requests, OSHA instructed staff to further collect 
and analyze research regarding the harmful effects of beryllium in 
preparation for possible section 6(b) rulemaking.
    On November 26, 2002, OSHA published a Request for Information 
(RFI) for ``Occupational Exposure to Beryllium'' (Document ID 1242). 
The RFI contained questions on employee exposure, health effects, risk 
assessment, exposure assessment and monitoring methods, control 
measures and technological feasibility, training, medical surveillance, 
and impact on small business entities. In the RFI, OSHA expressed 
concerns about health effects such as chronic beryllium disease (CBD), 
lung cancer, and beryllium sensitization. OSHA pointed to studies 
indicating that even short-term exposures below OSHA's PEL of 2 [mu]g/
m\3\ could lead to CBD. The RFI also cited studies describing the 
relationship between beryllium sensitization and CBD (67 FR at 70708). 
In addition, OSHA stated that beryllium had been identified as a 
carcinogen by organizations such as NIOSH, the International Agency for 
Research on Cancer (IARC), and the Environmental Protection Agency 
(EPA); and cancer had been evidenced in animal studies (67 FR at 
70709).
    On November 15, 2007, OSHA convened a Small Business Advocacy 
Review Panel to review a draft proposed standard for occupational 
exposure to beryllium. OSHA convened this panel under Section 609(b) of 
the Regulatory Flexibility Act (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 601 et 
seq.). The Panel included representatives from OSHA, the Solicitor's 
Office of the Department of Labor, the Office of Advocacy within the 
Small Business Administration, and the Office of Information and 
Regulatory Affairs of the Office of Management and Budget. Small Entity 
Representatives (SERs) made oral and written comments on the draft rule 
and submitted them to the panel.
    The SBREFA Panel issued a report on January 15, 2008 which included 
the SERs' comments. SERs expressed concerns about the impact of the 
ancillary requirements such as exposure monitoring and medical 
surveillance. Their comments addressed potential costs associated with 
compliance with the draft standard, and possible impacts of the 
standard on market conditions, among other issues. In addition, many 
SERs sought clarification of some of the ancillary requirements such as 
the meaning of ``routine'' contact or ``contaminated surfaces.''
    OSHA then developed a draft preliminary beryllium health effects 
evaluation (Document ID 1271) and a draft preliminary beryllium risk 
assessment (Document ID 1272), and in 2010, OSHA hired a contractor to 
oversee an independent scientific peer review of these documents. The 
contractor identified experts familiar with beryllium health effects 
research and ensured that these experts had no conflict of interest or 
apparent bias in performing the review. The contractor selected five 
experts with expertise in such areas as pulmonary and occupational 
medicine, CBD, beryllium sensitization, the Beryllium Lymphocyte 
Proliferation Test (BeLPT), beryllium toxicity and carcinogenicity, and 
medical surveillance. Other areas of expertise included animal 
modeling, occupational epidemiology, biostatistics, risk and exposure 
assessment, exposure-response modeling, beryllium exposure assessment, 
industrial hygiene, and occupational/environmental health engineering.
    Regarding the preliminary health effects evaluation, the peer 
reviewers

[[Page 29187]]

concluded that the health effect studies were described accurately and 
in sufficient detail, and OSHA's conclusions based on the studies were 
reasonable (Document ID 1210). The reviewers agreed that the OSHA 
document covered the significant health endpoints related to 
occupational beryllium exposure. Peer reviewers considered the 
preliminary conclusions regarding beryllium sensitization and CBD to be 
reasonable and well presented in the draft health evaluation section. 
All reviewers agreed that the scientific evidence supports 
sensitization as a necessary condition in the development of CBD. In 
response to reviewers' comments, OSHA made revisions to more clearly 
describe certain sections of the health effects evaluation. In 
addition, OSHA expanded its discussion regarding the BeLPT.
    Regarding the preliminary risk assessment, the peer reviewers were 
highly supportive of OSHA's approach and major conclusions (Document ID 
1210). The peer reviewers stated that the key studies were appropriate 
and their selection clearly explained in the document. They regarded 
the preliminary analysis of these studies to be reasonable and 
scientifically sound. The reviewers supported OSHA's conclusion that 
substantial risk of sensitization and CBD were observed in facilities 
where the highest exposure-generating processes had median full-shift 
exposures around 0.2 [mu]g/m\3\ or higher, and that the greatest 
reduction in risk was achieved when exposures for all processes were 
lowered to 0.1 [mu]g/m\3\ or below.
    In February 2012, OSHA received for consideration a draft 
recommended standard for beryllium (Materion and USW, 2012, Document ID 
0754). This draft standard was the product of a joint effort between 
two stakeholders: Materion Corporation, a leading producer of beryllium 
and beryllium products in the United States, and the United 
Steelworkers, an international labor union representing workers who 
manufacture beryllium alloys and beryllium-containing products in a 
number of industries. They sought to craft an OSHA-like model beryllium 
standard that would have support from both labor and industry. OSHA 
considered this draft standard along with other information submitted 
during the development of the Notice of Proposed Rulemaking (NPRM) for 
beryllium published in 2015. As described in greater detail in the 
Introduction to the Summary and Explanation of the final rule, there 
was substantial agreement between the submitted joint draft standard 
and the OSHA proposed standard.
    On August 7, 2015, OSHA published its NPRM in the Federal Register 
(80 FR 47565 (8/7/15)). In the NPRM, OSHA made a preliminary 
determination that employees exposed to beryllium and beryllium 
compounds at the preceding PEL face a significant risk to their health 
and that promulgating the proposed standard would substantially reduce 
that risk. The NPRM (Section XVIII) also responded to the SBREFA Panel 
recommendations, which OSHA carefully considered, and clarified the 
requirements about which SERs expressed confusion. OSHA also discussed 
the regulatory alternatives recommended by the SBREFA Panel in NPRM, 
Section XVIII, and in the PEA (Document ID 0426).
    The NPRM invited interested stakeholders to submit comments on a 
variety of issues and indicated that OSHA would schedule a public 
hearing upon request. Commenters submitted information and suggestions 
on a variety of topics. In addition, in response to a request from the 
Non-Ferrous Founders' Society, OSHA scheduled an informal public 
hearing on the proposed rule. OSHA invited interested persons to 
participate by providing oral testimony and documentary evidence at the 
hearing. OSHA also welcomed presentation of data and documentary 
evidence that would provide the Agency with evidence to use in 
determining whether to develop a final rule.
    The public hearing was held in Washington, DC on March 21 and 22, 
2016. Administrative Law Judge William Colwell presided over the 
hearing. OSHA heard testimony from several organizations, such as 
public health groups, the Non-Ferrous Founders' Society, other industry 
representatives, and labor unions. Following the hearing, participants 
who had filed notices of intent to appear were allowed 30 days--until 
April 21, 2016--to submit additional evidence and data, and an 
additional 15 days--until May 6, 2016--to submit final briefs, 
arguments, and summations (Document ID 1756, Tr. 326). In all, the OSHA 
rulemaking record contained over 1,900 documents, including all the 
studies OSHA relied on in its preliminary health effects and risk 
assessment analyses, the hearing transcript and submitted testimonies, 
the joint Materion-USW draft proposed standard, and the pre- and post-
hearing comments and briefs.
    In 2016, in an action parallel to OSHA's rulemaking, DOE proposed 
to update its action level to 0.05 [mu]g/m\3\ (81 FR 36704-36759, June 
7, 2016). The DOE action level triggers workplace precautions and 
control measures such as periodic monitoring, exposure reduction or 
minimization, regulated areas, hygiene facilities and practices, 
respiratory protection, protective clothing and equipment, and warning 
signs (Document ID 1323; 10 CFR 850.23(b)). Unlike OSHA's PEL, however, 
DOE's selection of an action level is not required to meet statutory 
requirements of technological and economic feasibility.
    On January 9, 2017, OSHA published its final rule Occupational 
Exposure to Beryllium and Beryllium Compounds in the Federal Register 
(82:2470-2757 (1/9/17)). Based on the entire rulemaking record, OSHA 
concluded that employees exposed to beryllium and beryllium compounds 
at the preceding PELs were at significant risk of material impairment 
of health, specifically chronic beryllium disease and lung cancer. OSHA 
concluded that the new PEL of 0.2 [mu]g/m\3\ reduced this significant 
risk to the maximum extent that is technologically and economically 
feasible. The final rule also included ancillary provisions to protect 
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.
    In a change from the NPRM, OSHA included the construction and 
shipyard industries in the beryllium final rule. OSHA's decision was 
based on supportive testimony and comments from stakeholders along with 
exposure data in the record indicating the potential for exposures 
above the action level for abrasive blasting using coal and copper 
slags (Document ID 1756; 1782; 1790). OSHA issued three separate 
standards for general industry, construction, and shipyards in an 
attempt to tailor requirements to each sector. The final rule also 
included other changes from the NPRM that were based on OSHA's analysis 
of the record. These included changes in the scope of the standards, 
exposure assessment requirements, beryllium work areas, personal 
protective clothing and equipment, medical surveillance requirements, 
and compliance dates.
    On February 1, 2017, OSHA published a delay of the effective date 
for the final rule in the Federal Register (82:8901 (2/1/17)). OSHA 
implemented this action based on the Presidential directive as 
expressed in the memorandum of January 20, 2017, from the Assistant to 
the President and Chief of Staff, entitled ``Regulatory Freeze

[[Page 29188]]

Pending Review'' (82 FR 8346 (January 24, 2017)). That memorandum 
directed the heads of Executive Departments and Agencies to temporarily 
postpone for 60 days from the date of the memorandum the effective 
dates of all regulations that had been published in the Federal 
Register but had not yet taken effect. OSHA therefore delayed the 
effective date for the final rule Occupational Exposure to Beryllium 
and Beryllium Compounds to March 21, 2017.
    On March 2, 2017, OSHA published a proposed delay of effective date 
for the final rule in the Federal Register (82 FR 12318 (3/2/17)). OSHA 
proposed this further delay in accordance with the January 20, 2017 
Presidential directive from the Assistant to the President and Chief of 
Staff, entitled ``Regulatory Freeze Pending Review'' (82 FR 8346 
(January 24, 2017)) that directed agencies to consider further delaying 
the effective date for regulations beyond the initial 60-day period. 
OSHA preliminarily determined that it would be appropriate to further 
delay the effective date of the final rule to give the new 
administration time to review questions of fact, law, and policy raised 
therein. OSHA therefore proposed extending the effective date to May 
20, 2017 and sought comment on its proposal to extend the effective 
date by an additional 60 days. OSHA received twenty-five unique 
comments on this proposal with many of the commenters supporting the 
delay considering the ongoing transition to a new administration. Some 
of these commenters also requested that OSHA further review the impact 
of the rule on entities that would be affected by changes from the 
proposed beryllium rule. Several commenters opposed the proposed delay 
of the effective date.
    On March 21, 2017, after considering all the comments received, 
OSHA finalized the delay of the effective date for the final beryllium 
rule in the Federal Register (82 FR 14439 (2/21/17)). This action 
extended the effective date to May 20, 2017 and provided OSHA with 
additional time to conduct a further review of the final rule, 
including consideration of concerns raised by interested parties. After 
careful consideration, and for reasons explained fully in the Summary 
and Explanation of this preamble, OSHA is proposing to revoke the 
ancillary provisions for both construction and shipyards adopted in the 
January 9, 2017 final rule and retain the new lower PEL of 0.2 
[micro]g/m\3\ and STEL of 2.0 [mu]g/m\3\ for those sectors (see Section 
XV, Summary and Explanation of the Proposal).

IV. Technological Feasibility Summary

Exposure Profile

    This section summarizes the basis for OSHA's technological 
feasibility findings made in the 2016 Final Economic Analysis (FEA) for 
the January 9, 2017 beryllium final rule (see Docket ID 2042, FEA 
Chapter IV--Technological Feasibility). It is presented here for 
informational purposes only. The information in this section is drawn 
entirely from the 2016 FEA and contains no new information or 
assessment.
Abrasive Blasting in Construction and Shipyards
    The primary abrasive blasting job categories include the abrasive 
blasting operator (blaster) and pot tender (blaster's helper or 
assistant) during open blasting projects. Support personnel such as pot 
tenders or abrasive media cleanup workers might also be employed to 
clean up (e.g., by vacuuming or sweeping) and recycle spent abrasive 
and to set up, dismantle, and move containment systems and supplies 
(NIOSH, 1976, Document ID 0779; NIOSH, 1993, 0777; NIOSH, 1995, 0773; 
NIOSH, 2007, 0770; Flynn and Susi, 2004, 1608; Meeker et al., 2005, 
0699).
    Section 15 of Chapter IV of the 2016 Final Economic Analysis (FEA) 
for the January 9, 2017 final beryllium rule included a detailed 
discussion of exposure data and analysis for the development of the 
exposure profile for workers in abrasive blasting operations. Because 
OSHA addressed general industry abrasive blasting operations in other 
general industry sections where appropriate, such as in the nonferrous 
foundries industry, the exposure profile in Section 15 addressed only 
exposure data from construction and shipyard tasks. The exposure 
profile for abrasive blasters, pot tenders/helpers, and abrasive media 
cleanup workers was based on two National Institute for Occupational 
Safety and Health (NIOSH) evaluations of beryllium exposure from 
abrasive blasting with coal slag, unpublished sampling results for 
abrasive blasting operations from four U.S. shipyards, and data 
submitted by the U.S. Navy (NIOSH, 1983, Document ID 0696; NIOSH, 2007, 
0770; OSHA, 2005, 1166; U.S. Navy, 2003, 0145).

                                               Table IV.1--Exposure Profile for Abrasive Blasting Workers
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Number of full-shift PBZ sample results in range  ([mu]g/m\3\)
                                         ------------------------------------------------------------------------------------------------  Total number
                                               <0.1       >=0.1 to <=0.2   >0.2 to <=0.5   >0.5 to <=1.0   >1.0 to <=2.0       >2.0         of samples
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasters.......................              45              38              22               7               8              28             148
                                                   30.4%           25.7%           14.8%            4.7%            5.4%           18.9%            100%
Pot Tender..............................               9               7               0               0               0               0              16
                                                   56.2%           43.8%              0%              0%              0%              0%            100%
Cleanup.................................              20               8               0               0               1               1              30
                                                   66.6%           26.7%              0%              0%            3.3%            3.3%            100%
                                         ---------------------------------------------------------------------------------------------------------------
    Totals..............................              74              53              22               7               9              29             194
                                                   38.1%           27.3%           11.2%            3.6%            4.6%             15%            100%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: Document ID 0145; OSHA 2005, Document ID 1166; NIOSH 1983, 0696; NIOSH 2007. 0770.
Notes: Sample results are expressed as eight-hour time-weighted averages and include sampling durations of 240 minutes or longer.
Non-detected shipyard results are incorporated into the exposure profile by assigning the detection limit value to each result reported as less than the
  sample limit of detection.
Excludes four results where garnet was used as the abrasive due to high nondetectable reporting limits.


[[Page 29189]]

Welding in Shipyards
    Similar to the profile for abrasive blasting activities, OSHA used 
exposure data from the 2016 FEA to develop the exposure profile for 
welding in shipyards. OSHA used the exposure data from Chapter IV-10 
Appendices 2 and 3 and combined the aluminum base metal and non-
aluminum or unknown base material data. OSHA removed shorter duration 
samples that appeared in Appendix 3 of FEA Chapter IV-10. Seven 
maritime welding samples from Appendix 3, Table IV-10.6 with sampling 
durations of 240 minutes or greater were used in this profile to 
represent the 8-hour TWA samples.

                                            IV.2--Welding in Shipyards--Beryllium 8-Hour TWA Exposure Profile
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Number of beryllium samples in range ([mu]g/m\3\) and percent of total in range
---------------------------------------------------------------------------------------------------------------------------------------------------------
                        Range                            <0.1      >0.1 to <=0.2   >0.2 to <=0.5   >0.5 to <=1.0   >1.0 to <=2.0     >2.0        Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Aluminum Base Material Percent......................           4               0               0               2               1           0           7
                                                             57%              0%              0%           28.6%           14.3%          0%        100%
Base Material Not Aluminum or Unknown Percent.......         123               2               0               2               0           0         127
                                                           96.9%           21.6%              0%            1.6%              0%          0%        100%
                                                     ---------------------------------------------------------------------------------------------------
    Totals..........................................         127               2               0               4               1           0         134
                                                           94.8%            1.5%              0%            3.0%            0.7%          0%        100%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: OSHA Shipyards, 2005, Document ID 1166; U.S. Navy, 2003, Document ID 0145.
Beryllium samples below the limit of detection are recast as 0 [mu]g/m\3\ to reflect likely absence of beryllium in the work materials.
Data includes samples collected over periods of 240 minutes or longer, to avoid samples with elevated limits of detection that cannot be meaningfully
  interpreted.

Technological Feasibility Determination

    Overall, based on the information discussed in Chapter IV of Final 
Economic Analysis of the January 9, 2017 final beryllium rule, OSHA 
determined that the majority of the exposures in construction and 
shipyards are either already at or below the new final PEL, or can be 
adequately controlled to levels below the final PEL through the 
implementation of additional engineering and work practice controls for 
most operations most of the time. The one exception is that OSHA 
determined that workers who perform open-air abrasive blasting using 
mineral grit (i.e., coal slag) will routinely be exposed to levels 
above the final PEL even after the installation of feasible engineering 
and work practice controls, and therefore, these workers will also be 
required to wear respiratory protection. Therefore, OSHA concluded in 
the January 9, 2017 final rule that the final PEL of 0.2 [mu]g/m\3\ is 
technologically feasible in abrasive blasting in construction and 
shipyards and in welding in shipyards.

V. Preliminary Economic Analysis

A. Introduction

    This Preliminary Economic Analysis (PEA) addresses issues related 
to the profile of affected application groups, establishments, and 
employees, the cost savings, and the health effects of OSHA's proposal 
to revoke both the construction and shipyard ancillary provisions and 
make no changes to the January 9, 2017 final rule's PEL and STEL for 
the shipyard and construction industries.
    The proposed actions are not ``economically significant regulatory 
actions'' under Executive Order 12866 or UMRA, nor are they ``major 
rules'' under the Congressional Review Act (5 U.S.C. 801 et seq.). 
Neither the benefits nor the costs of these proposed actions exceed 
$100 million. In addition, they do not meet any of the other criteria 
specified by UMRA for a significant regulatory action or the 
Congressional Review Act for a major rule. However, these actions have 
been determined to be ``significant'' under Executive Order 12866.
    Under this proposal, employers in shipyards and construction would 
no longer be required to implement the ancillary provisions adopted by 
the January 9, 2017 final rule. The nine ancillary provisions being 
removed by this proposal are: (1) Assess employees' exposure to 
airborne beryllium, (2) establish regulated areas or a competent 
person, (3) develop a written exposure control plan, (4) provide 
personal protective work clothing and equipment, (5) establish hygiene 
areas and practices, (6) implement housekeeping measures, (7) provide 
medical surveillance, (8) provide medical removal for employees who 
have developed CBD or been confirmed positive for beryllium 
sensitization, and (9) provide appropriate training. OSHA assumes that 
these employers have already incurred the costs of familiarizing 
themselves with the ancillary provisions in the final rule. In 
addition, the proposal would retain the new PEL and STEL through 
revisions of the Z Table in 29 CFR 1915.1000 in shipyards and Appendix 
A to 29 CFR 1926.55 in construction. The changes to these tables are a 
technical correction, given the proposed changes, and will not affect 
the PEL and STEL requirements of the final rule. While OSHA still 
welcomes comment on the applicability of existing standards to the 
operations covered by this proposal, this PEA provides OSHA's 
preliminary assessment of how those standards impact the costs, 
benefits, and baseline compliance associated with the beryllium rule.
    This Introduction to the PEA is followed by:

 Section B: Profile of Affected Application Groups, 
Establishments, and Employees
 Section C: Cost Savings
 Section D: Health Benefits

B. Profile of Affected Application Groups, Establishments, and 
Employees

Introduction
    In this section, OSHA presents the preliminary profile of 
industries affected by this proposal to revoke the ancillary provisions 
for the shipyard and construction sectors (82 FR 2470-2757, 1/9/2017) 
while retaining the revised PEL and STEL for those sectors. The profile 
data in this section are drawn from the industry profiles in Chapter 
III and exposure profiles and data in Chapter IV of the Final Economic 
Analysis supporting the new beryllium standards (``2016 FEA''; Document 
ID 2042).
    As a first step, OSHA identifies the North American Industrial 
Classification System (NAICS) industries, both in the shipyard and 
construction sectors, with potential

[[Page 29190]]

worker exposure to beryllium. Next, OSHA provides statistical 
information on the affected industries, including the number of 
affected entities and establishments, the number of workers whose 
exposure to beryllium could result in disease or death (``at-risk 
workers''), and the average revenue and profits for affected entities 
and establishments by six-digit NAICS industry.\1\ This information is 
provided for each affected industry as a whole, as well as for small 
entities, as defined by the Small Business Administration (SBA), and 
for ``very small'' entities, defined by OSHA as those with fewer than 
20 employees, in each affected industry (U.S. Census Bureau, 2014).
---------------------------------------------------------------------------

    \1\ The Census Bureau defines an establishment as a single 
physical location at which business is conducted or services or 
industrial operations are performed. The Census Bureau defines a 
business firm or entity as a business organization consisting of one 
or more domestic establishments in the same state and industry that 
are specified under common ownership or control. The firm and the 
establishment are the same for single-establishment firms. For each 
multi-establishment firm, establishments in the same industry within 
a state will be counted as one firm; the firm employment and annual 
payroll are summed from the associated establishments. (U.S. Census 
Bureau, Statistics of U.S. Businesses, Glossary, 2017, https://www.census.gov/programs-surveys/susb/about/glossary.html (Accessed 
March 3, 2017).
---------------------------------------------------------------------------

    For each industry sector identified, the Agency describes the uses 
of beryllium and estimates the number of establishments and employees 
that may be affected by this rulemaking. Employee exposure to beryllium 
can also occur as a result of certain processes (such as welding) that 
are found in many industries. This analysis will use the term 
``application group'' to refer to a cross-industry group with a common 
process.
    Beryllium is rarely used by all establishments in any particular 
industry because of its unique properties and relatively high cost. In 
Chapter III of the 2016 FEA, OSHA described each application group; 
identified the processes and occupations with beryllium exposure, 
including available sampling exposure measurements; and explained how 
OSHA estimated the number of establishments working with beryllium and 
the number of employees exposed to beryllium. Those estimates and the 
new exposure profile for abrasive blasting in construction and 
shipyards and welding in shipyards are presented in this preamble, 
along with a brief description of the application groups and an 
explanation of the derivation of the new exposure profiles. For 
additional information about these data and the application groups, 
please see Chapter III of the 2016 FEA.\2\ Finally, the Agency 
discusses wage data, the hire rate, and current industry practices.
---------------------------------------------------------------------------

    \2\ OSHA contractor Eastern Research Group (ERG) provided 
support for the 2016 FEA. References to ERG's analytical work appear 
throughout this PEA.
---------------------------------------------------------------------------

    All costs are estimated in 2016 dollars. Costs reported in 2016 
dollars were applied directly in this PEA; wage data were updated to 
2016 dollars using BLS data; all other costs reported for years earlier 
than 2016 were updated to 2016 dollars using the GDP implicit price 
deflator (OSHA, 2017).
Affected Application Groups
    OSHA's 2016 FEA identified one affected application group in the 
construction sector and two application groups in the shipyard sector. 
Both the shipyard and construction sectors have employees in the 
abrasive blasting application group, and the shipyard sector has 
employees in the welding application group.
    In the following sections, OSHA describes the application groups in 
construction and shipyards that will be affected by this proposal.
Abrasive Blasting
    Abrasive blasting involves the use of hand-held or automatic 
equipment to direct a stream of abrasive material at high speed against 
a surface to clean, abrade, etch, or otherwise change the original 
appearance or condition of the surface (WorkSafe, 2000, Document ID 
0692). Surfaces commonly treated by abrasive blasting techniques 
include iron, steel, aluminum, brass, copper, glass, masonry (brick, 
concrete, stone, etc.), sand castings, plastic, and wood (NIOSH, 1976, 
Document ID 0779). In construction and shipyards, abrasive blasting is 
primarily used for two purposes:
     Cleaning surfaces by removing unwanted paint, rust, scale, 
dirt, salts, grease, and flux in preparation for painting, anodizing, 
welding, or other processes requiring a clean surface.
     Producing a desired matte or decorative finish.
    Abrasive blasting systems generally include an abrasive container 
or blasting pot, a propelling device, and an abrasive blasting nozzle. 
The three main propelling methods are air pressure, water pressure, and 
centrifugal force provided by the use of wheels. Air blasting systems 
use compressed air to propel the abrasive (dry blasting), water 
blasting systems use either compressed air (wet blasting) or high 
pressure water (hydroblasting), and centrifugal wheel systems use 
centrifugal and inertial forces (EPA, 1997, Document ID 0784).
    Abrasive blasting can generate large quantities of dust that 
contains a variety of metals and toxic air contaminants. Workers can 
have exposures to multiple air contaminants from both the abrasive and 
the surface being blasted. The source of the air contaminants includes 
the base material being blasted, the surface coating(s) being removed, 
the abrasive being used, and any abrasive contamination from previous 
blasting operations (Burgess 1991, Document ID 0907). Potential air 
contaminants that might be associated with abrasive blasting and their 
sources are listed in Table IV.65 in Chapter IV of the FEA in support 
of the new beryllium standards.
Abrasives
    A number of different types of abrasives containing beryllium in 
trace amounts can be used for blasting media depending on the 
application. The most commonly used abrasives in the construction 
industry (e.g., to etch the surfaces of outdoor structures, such as 
bridges, prior to painting) include coal slag and steel grit (Meeker et 
al., 2006, Document ID 0698). Copper slag produced as by-product at 
copper smelters can also be used as an abrasive. Shipyards are large 
users of mineral slag abrasives. In a survey of 26 U.S. shipyards and 
boatyards about abrasive media usage conducted for the Navy, the use of 
coal slag abrasives accounted for 68 percent and copper slag accounted 
for 20 percent (NSRP, 1999, Document ID 0767). Workers who perform 
abrasive blasting using either coal or copper slag abrasives are 
potentially exposed to beryllium (Greskevitch, 2000, Document ID 0701). 
OSHA requests updates on this assessment of commonly used abrasive 
blasting media in construction and shipyards.
Affected Job Categories
    Abrasive blasting is mainly used in construction and shipyard 
operations by painting contractors and welders. (NIOSH, 1976, Document 
ID 0779).
    The primary abrasive blasting job categories in construction and 
shipyards include the abrasive blasting operator (blaster) and the pot 
tender. Support personnel (cleanup helper) might also be employed to 
clean up (e.g., by vacuuming or sweeping) and recycle spent abrasive, 
and to set up, dismantle, and move containment systems and supplies 
(NIOSH, 1995, Document ID 0773).
    As explained in its 2016 FEA, OSHA estimated that 80 percent of all 
shipyard blasting operations and 75 percent of construction blasting 
operations generate potential beryllium exposures.

[[Page 29191]]

OSHA has maintained the same assumption here and invites comment on 
these estimates.
    As was estimated in OSHA's industry profile for the 2016 FEA, for 
this PEA OSHA estimated there was one pot tender for each at-risk 
abrasive blaster and one abrasive media cleanup worker for every two 
abrasive blasters. The Agency invites comment on these estimates.
Final Estimate of Populations at Risk in Abrasive Blasting
    In the 2016 FEA, OSHA developed final estimates of the numbers of 
workers who perform abrasive blasting. These at-risk populations 
include workers in the construction sector engaged in blasting building 
exteriors or blasting ancillary to painting of bridges, tunnels, and 
related highways; ships; and other non-building construction. Shipyard 
workers might perform blasting as part of ship surface cleaning and 
preparation prior to painting or other surface coating. In the 2016 
FEA, based on the BLS description of broad occupational 
classifications, OSHA's estimates grouped these workers in the 
categories ``painters, construction, and maintenance'' or ``painters, 
transportation equipment.'' \3\ The same grouping is applied in this 
PEA.
---------------------------------------------------------------------------

    \3\ In the Bureau of Labor Statistics' Occupational Outlook 
Handbook (BLS, 2017b), the description of the duties of construction 
and maintenance painters includes the following: A few painters--
mainly industrial--use special safety equipment. For example, 
painting in confined spaces, such as the inside of a large storage 
tank, requires workers to wear self-contained suits to avoid 
inhaling toxic fumes. On some projects they may operate abrasive 
blasters to remove old coatings, which may require the use of 
additional clothing and protective eyewear. (See https://www.bls.gov/ooh/construction-and-extraction/painters-construction-and-maintenance.htm#tab-2, accessed April 5, 2017.)
---------------------------------------------------------------------------

    Below in Tables V-1 and V-2, OSHA presents its estimate of affected 
blasters and blasting support personnel in construction and shipyards; 
this estimate, reported in the 2016 FEA, is now the Agency's 
preliminary estimate for this NPRM. OSHA requests public comment on the 
estimate as well as the methodology, described in Chapter III of the 
2016 FEA, for estimating affected abrasive blasters and abrasive 
blasting support personnel in construction and shipyards.

  Table V-1--Preliminary Profile of Establishments and Employees in Abrasive Blasting-Construction Affected by
                                OSHA's Proposed Deregulatory Action on Beryllium
----------------------------------------------------------------------------------------------------------------
                               Industry/job                                          Affected        Affected
          NAICS                  category        Establishments     Employees     establishments     employees
----------------------------------------------------------------------------------------------------------------
238320...................  Painting and Wall             31,376         163,073            1,090           4,360
                            Covering
                            Contractors.
                           Abrasive Blaster...  ...............  ..............  ...............           1,744
                           Pot Tender.........  ...............  ..............  ...............           1,744
                           Cleanup............  ...............  ..............  ...............             872
238990...................  All Other Specialty           29,072         193,631            1,010           4,040
                            Trade Contractors.
                           Abrasive Blaster...  ...............  ..............  ...............           1,616
                           Pot Tender.........  ...............  ..............  ...............           1,616
                           Cleanup............  ...............  ..............  ...............             808
                                               -----------------------------------------------------------------
    Total................  ...................           60,448         356,704            2,100           8,400
----------------------------------------------------------------------------------------------------------------
Note: Data in columns may not sum to totals due to rounding.
Sources: U.S. Census Bureau, 2014; US DOL, Directorate of Standards and Guidance, Office of Regulatory Analysis
  (2017).


Table V-2--Preliminary Profile of Establishments and Employees in Abrasive Blasting-Shipyards Affected by OSHA's
                                    Proposed Deregulatory Action on Beryllium
----------------------------------------------------------------------------------------------------------------
                                                                                     Affected        Affected
          NAICS                  Industry        Establishments     Employees     establishments     employees
----------------------------------------------------------------------------------------------------------------
336611a..................  Ship Building and                689         108,311              689           3,060
                            Repairing.
                           Abrasive Blaster...  ...............  ..............  ...............           1,224
                           Pot Tender.........  ...............  ..............  ...............           1,224
                           Cleanup............  ...............  ..............  ...............             612
                                               -----------------------------------------------------------------
    Total................  ...................              689         108,311              689           3,060
----------------------------------------------------------------------------------------------------------------
Note: Data in columns may not sum to totals due to rounding.
Sources: U.S. Census Bureau, 2014; US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory
  Analysis (2017).

Welding
    Beryllium exposures can occur in arc and gas welding operations 
when welding on base materials containing beryllium and when using 
equipment with electrodes that include beryllium (hereafter generally 
referred to simply as ``welding''). Note that ``gas welding'' in this 
context also involves use of electrodes; the gas used is to protect the 
weld from the atmosphere.
    Beryllium exposures during welding are not common and, when 
observed, are low (see Chapter IV: Section 10 of the 2016 FEA in 
support of the new beryllium standards for an extended discussion of 
welding). For this preliminary profile, only arc and gas welding would 
be affected by the proposed deregulatory action.\4\
---------------------------------------------------------------------------

    \4\ The other common type of welding, resistance welding, does 
not typically generate beryllium exposure.
---------------------------------------------------------------------------

    The principal area of welding exposures is among workers welding 
beryllium or beryllium-alloy products (see Chapter IV: Section 10 of 
the FEA in support of the new beryllium standards).
Welding in Shipyards
    In its 2016 FEA, OSHA included NAICS 336611: Ship Building and 
Repairing, in the set of industries in the Welding application group 
affected by the final rule. The number of establishments and employees 
in this shipyard industry affected by the final

[[Page 29192]]

rule, and therefore affected by this proposal, is displayed in Table V-
3. As shown in the table, based on 2015 BLS Occupational Employment 
Statistics data, OSHA estimates that 28 percent of establishments in 
NAICS 336611: Ship Building and Repairing conduct arc and gas welding. 
Based on analysis by ERG of customer summary data submitted in a 
comment by Materion, OSHA further estimates that 3.4 percent of these 
establishments weld beryllium or beryllium alloy products (ERG, 2015, 
Document ID 0385, Workbook #8; Kolanz, 2001, Document ID 0091).
    OSHA requests public comment on the estimates shown in Table V-3.

             Table V-3--Preliminary Profile of Establishments and Employees in Shipyards (Ship Building and Repairing) Affected by OSHA's Proposed Deregulatory Action on Beryllium
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           Percent of                                             Number of
                                                                          Total                          establishments                     All employees in       welding      Welders  working
            NAICS code                       Industry \a\            establishments   Total  employees   conducting arc        Welding           welding       establishments     on  beryllium
                                                                           \b\               \b\        and gas  welding   establishments    establishments   using  beryllium     alloys \f\
                                                                                                               \c\                                 \d\               \e\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611b..........................  Ship Building and Repairing....            689.0         108,311.0               28%             192.9          30,327.1               6.6              26.4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: U.S. Census Bureau, 2014; BLS, 2016; US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (2017).
\a\ Based on industries with the largest number of positive beryllium samples for welders in the IMIS database (OSHA, 2004). These industries account for over 60 percent of the positive
  general industry samples for welders.
\b\ U.S. Census Bureau, 2014.
\c\ BLS, 2016.
\d\ Based on average industry size.
\e\ Estimated as the total number of establishments in the industry (689), multiplied by the percentage of establishments employing welders (28%), and further multiplied by the percentage of
  establishments welding on beryllium alloys (3.4 percent). (Kolanz, 2001, Document ID 0091).
\f\ Based on an ERG estimate of 500 establishments with an average of 4 workers that perform welding on beryllium alloys, or 2.4 percent of establishments with welding. The ERG estimate was
  derived from Brush Wellman Inc. data reporting approximately 2,000 welders performing welding on beryllium alloys (Kolanz, 2001, Document ID 0091).

Summary of Affected Establishments and Employers
    As shown in Table V-4, OSHA estimates that a total of 11,486 
workers in 2,796 establishments will be affected by this proposal. Also 
shown are the estimated annual revenues for these entities. Table V-5 
presents the Agency's preliminary estimate of affected entities defined 
as small by the Small Business Administration (SBA); Table V-6 presents 
OSHA's preliminary estimate of affected establishments and employees by 
NAICS industries for the subset of small entities with fewer than 20 
employees.\5\ For the tables showing the characteristics of small and 
very small entities, OSHA generally assumed that beryllium-using small 
entities and very small entities would be the same proportion of 
overall small and very small entities as the proportion of beryllium-
using entities to all entities as a whole in a NAICS industry.
---------------------------------------------------------------------------

    \5\ Tables V-5 and V-6 indicate that small entities affected by 
the proposed rule contain 2,714 affected establishments affiliated 
with entities that are small by SBA standards and 2,365 affected 
establishments affiliated with entities that employ fewer than 20 
employees.
    However, the small and very small entity figures in Tables V-5 
and V-6 were not used to prepare the cost savings estimates in 
Section D of this PEA. For costing purposes in Section D, OSHA 
included small establishments owned by larger entities in the 
figures in Tables V-5 and V-6 because such establishments do not 
qualify as ``small entities'' for the purposes of a Regulatory 
Flexibility Analysis. To see the difference in the number of 
affected establishments by size for costing purpose, consider the 
example of a ``large entity'' with 500 employees, consisting of 50 
ten-employee establishments. In Section B., each of these 50 
establishments would be excluded from Tables V-5 and V-6 because 
they are part of a ``large entity''; in Section D., where all 
establishments are included because there is no filter for entity 
size, each would be considered a small establishment.
    Thus, for purposes of Section D., there are 2,399 affected 
establishments with fewer than 20 employees, 369 affected 
establishments with between 20 and 499 employees, and 28 
establishments with more than 500 employees; these estimates were 
derived in the cost spreadsheet by NAICS industry and in total (see, 
for example, Columns TK through TM in the ``Rule'' tab as developed 
for familiarization cost savings; the totals are in cells TK5 
through TM5) (OSHA, 2017). While not shown in the tables or used in 
the analysis, Census (2015) Statistics of US Businesses data suggest 
there are also a total of 3,464 establishments affiliated with 
entities in construction and shipyards employing between 20 and 499 
employees, of which approximately 157 would be affected by the rule.
---------------------------------------------------------------------------

    OSHA requests public comment on the profile data presented in 
Tables V-4, V-5, and V-6.

                                      Table V-4--Characteristics of Industries Affected by OSHA's Proposed Deregulatory Action for Beryllium--All Entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                           Total
                                                                        Total         Total          Total      Affected      Affected       Affected     revenues    Revenues/      Revenues/
        Application group             NAICS            Industry        entities   establishments   employees    entities   establishments   employees     ($1,000)      entity     establishment
                                                                         \a\           \a\            \a\         \b\           \b\            \b\          \a\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction.  238320.......  Painting and Wall     31,317.0         31,376.0    163,073.0    1,088.0          1,090.0      4,360.0  $19,595,278     $625,707        $624,531
                                                  Covering
                                                  Contractors.
Abrasive Blasting--Construction.  238990.......  All Other Specialty   28,734.0         29,072.0    193,631.0      998.3          1,010.0      4,040.0   39,396,242    1,371,067       1,355,127
                                                  Trade Contractors.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Abrasive Blasting--Shipyards *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards....  336611a......  Ship Building and        604.0            689.0    108,311.0      604.0            689.0      3,060.0   26,136,187   43,271,832      37,933,508
                                                  Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Welding in Shipyards **
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards............  336611b......  Ship Building and        604.0            689.0    108,311.0        5.8              6.6         26.4   26,136,187   43,271,832      37,933,508
                                                  Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 29193]]

 
                                                                                              Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal...........  .............  ...................   60,051.0         60,448.0    356,704.0    2,086.2          2,100.0      8,400.0   58,991,519      982,357         975,905
Shipyard Subtotal...............  .............  ...................    1,208.0          1,378.0    216,622.0      609.8            695.6      3,086.4   52,272,373   43,271,832      37,933,508
                                                                     ---------------------------------------------------------------------------------------------------------------------------
Total, All Industries...........  .............  ...................   61,259.0         61,826.0    573,326.0    2,696.0          2,795.6     11,486.4  111,263,893    1,816,286       1,799,629
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ U.S. Census Bureau, Statistics of U.S. Businesses: 2012, Document ID 2034.
\b\ OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the
  number of affected employees. Within each NAICS industry, the number of affected entities was calculated as the product of total number of entities for that industry and the ratio of the
  number of affected establishments to the number of total establishments.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.


[[Page 29194]]


                                                                Table V-5--Characteristics of Industries Affected by OSHA's Final Standard for Beryllium--Small Entities
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         SBA small                                                  Affected                      Affected
                                                                                         business         Small      Establishments     Small        small      Affected small   employees   Total revenues    Revenues    Revenues per
          Application group                   NAICS                 Industry          classification    business       for small        entity      business    establishments   for small      for small     per small   small business
                                                                                        (employees)   entities \b\    entities \b\    employees     entities         \c\          entities      entities        entity     establishment
                                                                                            \a\                                          \b\          \c\                           \c\       ($1,000) \b\
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction......  238320.............  Painting and Wall                   100       31,221.0         31,243.0    133,864.0      1,084.6          1,085.4      3,579.1     $16,552,251     $530,164        $529,791
                                                             Covering Contractors.
Abrasive Blasting--Construction......  238990.............  All Other Specialty                 100       28,537.0         28,605.0    143,112.0        991.4            993.8      2,985.9      29,789,492    1,043,890       1,041,409
                                                             Trade Contractors.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Abrasive Blasting--Shipyards *
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards.........  336611a............  Ship Building and                 1,250          585.0            629.0     27,170.0        585.0            629.0          960       6,043,893   10,331,440       9,608,732
                                                             Repairing.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Welding in Shipyards **
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards.................  336611b............  Ship Building and                 1,250          585.0            629.0     27,170.0          5.6              6.0          6.6       6,043,893   10,331,440       9,608,732
                                                             Repairing.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                  Total
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal................  ...................  ........................  ..............      59,758.0         59,848.0    276,976.0      2,076.0          2,079.2      6,565.0      46,341,743      775,490         774,324
Shipyard Subtotal....................  ...................  ........................  ..............       1,170.0          1,258.0     54,340.0        590.6            635.0        774.2      12,087,785   10,331,440       9,608,732
                                                                                     ---------------------------------------------------------------------------------------------------------------------------------------------------
Total, All Industries................  ...................  ........................  ..............      60,928.0         61,106.0    331,316.0      2,666.6          2,714.2      7,339.2      58,429,529      958,993         956,200
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Data may not sum to totals due to rounding.
\a\ SBA Size Standards, 2016 (Document ID 2026). Data were not available specifically for small entities with more than 500 employees. For SBA small business classifications specifying 750 or more employees, OSHA used data for all
  entities in the industry.
\b\ U.S. Census Bureau, Statistics of US Businesses: 2012 (Document ID 2034).
\c\ OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the number of affected employees.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.


[[Page 29195]]


                                 Table V-6--Characteristics of Industries Affected by OSHA's Final Standard for Beryllium--Entities With Fewer Than 20 Employees
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                             Affected
                                                                                                  Employees     Affected      Affected      employees   Total revenues               Revenue per
                                                                      Entities   Establishments      for        entities   establishments      for       for entities     Revenues    estab. for
       Application group             NAICS           Industry         with <20    for entities     entities     with <20    for entities     entities      with <20      per entity    entities
                                                                     employees      with <20       with <20    employees      with <20       with <20      employees      with <20     with <20
                                                                        \a\       employees \a\   employees       \b\       employees \b\   employees    ($1,000) \a\    employees    employees
                                                                                                     \a\                                       \b\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction  238320.......  Painting and Wall      29,953.0       29,957.0      87,984.0      1,040.6        1,040.7       2,352.4     $10,632,006     $354,956     $354,909
                                                 Covering
                                                 Contractors.
Abrasive Blasting--Construction  238990.......  All Other              27,026.0       27,041.0      90,822.0        938.9          939.4       1,894.9      19,232,052      711,613      711,218
                                                 Specialty Trade
                                                 Contractors.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Abrasive Blasting--Shipyards *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards...  336611a......  Ship Building and         380.0          381.0       2,215.0        380.0          381.0         381.0         547,749    1,441,445    1,437,661
                                                 Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Welding in Shipyards **
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards...........  336611b......  Ship Building and         380.0          381.0       2,215.0          3.6            3.6           3.6         547,749    1,441,445    1,437,661
                                                 Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal..........  .............  ..................     56,979.0       56,998.0     178,806.0      1,979.5        1,980.1       4,247.3      29,864,058      524,124      523,949
Shipyard Subtotal..............  .............  ..................        760.0          762.0       4,430.0        383.6          384.6         384.6       1,095,498    1,441,445    1,437,661
                                                                   -----------------------------------------------------------------------------------------------------------------------------
Total, All Industries..........  .............  ..................     57,739.0       57,760.0     183,236.0      2,363.1        2,364.8       4,632.0      30,959,556      536,198      536,003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Data may not sum to totals due to rounding.
\a\ U.S. Census Bureau, Statistics of US Businesses: 2012 (Document ID 2034).
\b\ OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the
  number of affected employees.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.

Beryllium Exposure Profile of At-Risk Workers
    The exposure profiles for abrasive blasting presented here were 
taken directly from Chapter IV of the 2016 FEA, and are more fully 
summarized in Section IV of this preamble. The exposure profile for 
welding in shipyards, however, is based on data presented in appendices 
2 and 3 of Section 10.6 of Chapter IV, and again is more fully 
summarized in Section IV. Those data measure exposures of shipyard 
based welders, and OSHA has preliminarily determined that it is a more 
suitable data set on which to base the exposure profile of welders in 
shipyards than the data used in the 2016 FEA, which were based on 
general industry welding exposures.\6\ Exposure profiles, by job 
category, were developed from individual exposure measurements that 
were judged to be substantial and to contain sufficient accompanying 
description to allow interpretation of the circumstances of each 
measurement. The resulting exposure profiles show the job categories 
with current exposures to beryllium above the new PEL and, thus, the 
workers for whom beryllium controls would be implemented under the 
final beryllium standard.
---------------------------------------------------------------------------

    \6\ The use of the general industry exposure profile for 
shipyard welders was inadvertent, and the differences between the 
exposure monitoring data from the general industry and these welding 
data are not significantly different (e.g., the exposure data for 
the shipyard welders show 94.8 percent of the exposures occurring 
below 0.1 ug/m\3\, while the general industry estimates show 56.8 
percent of the exposures occurring below 0.1 ug/m\3\) and do not 
materially change the exposure assessment assumptions.
---------------------------------------------------------------------------

    Tables V-7 and V-8 summarize, from the exposure profiles, the 
number of workers at risk of beryllium exposure and the distribution of 
8-hour TWA beryllium exposures by affected application group and job 
category. Exposures are grouped into ranges (e.g., >0.05 [mu]g/m\3\ and 
<0.1 [mu]g/m\3\) that represent the percentages of employees in each 
job category and sector currently exposed at levels within the 
indicated range.
    Table V-9 presents data by NAICS code on the estimated number of 
workers currently at risk of beryllium exposure for each of the same 
exposure ranges. As shown, an estimated 2,167 (after rounding) workers 
currently have beryllium exposures above the final PEL of 0.2 [mu]g/
m\3\. OSHA requests public comment on the exposure profile shown in 
Tables V-7, V-8, and V-9.

                                                Table V-7--Distribution of Beryllium Exposures by Application Group and Job Category or Activity
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             Exposure range  ([micro]g/m\3\)
                                                       -----------------------------------------------------------------------------------------------------------------------------------------
                 Job category/activity                   0 to <=0.0.5   >0.05 to <=0.1   >0.1 to <=0.2  >0.2 to <=0.25  >0.25 to <=0.5   >0.5 to <=1.0   >1.0 to <=2.0
                                                            \a\ (%)         \a\ (%)           (%)             (%)             (%)             (%)             (%)         >2.0 (%)    Total (%)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Abrasive Blasting--Construction & Shipyards *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blaster......................................            15.2            15.2            25.7             2.5            12.4             4.7             5.4         18.9        100.0
Pot Tender............................................            28.1            28.1            43.8             0.0             0.0             0.0             0.0          0.0        100.0
Cleanup...............................................            33.3            33.3            26.7             0.0             0.0             0.0             3.3          3.3        100.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Welding--Shipyards **
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welder................................................            47.4            47.4             1.5             0.0             0.0             3.0             0.7          0.0        100.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Data may not sum to totals due to rounding.

[[Page 29196]]

 
\a\ The lowest exposure range in OSHA's technological feasibility analysis is <=0.1 [micro]g/m\3\ (see Chapter IV-02, Limits of Detection for Beryllium Data, in the FEA (Document ID 2042) in
  support of the new beryllium standards). Because OSHA lacked information on the distribution of worker exposures in this range, the Agency evenly divided the workforce exposed at or below
  0.1 [micro]g/m\3\ into the two categories shown in this table and in the columns with identical headers in Tables V-8 and V-9. OSHA recognizes that this simplifying assumption may
  overestimate exposure in these lower exposure ranges; the Agency requests comment as to whether members of the public share this observation.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility.


                                        Table V-8--Number of Workers Exposed to Beryllium by Affected Application Group, Job Category, and Exposure Range
                                                                                         [[micro]g/m\3\]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           Exposure level  ([micro]g/m\3\)
           Application group/job category           --------------------------------------------------------------------------------------------------------------------------------------------
                                                       0 to <=0.05    >0.05 to <=0.1   >0.1 to <=0.2   >0.2 to <=0.25   >0.25 to <=0.5   >0.5 to <=1.0   >1.0 to <=2.0      >2.0        Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blaster...................................           510.8            510.8           862.7             83.2            416.2           158.9           181.6        635.7      3,360.0
Pot Tender.........................................           945.0            945.0         1,470.0              0.0              0.0             0.0             0.0          0.0      3,360.0
Cleanup............................................           560.0            560.0           448.0              0.0              0.0             0.0            56.0         56.0      1,680.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Abrasive Blasting--Shipyards *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blaster...................................           186.1            186.1           314.3             30.3            151.6            57.9            66.2        231.6      1,224.0
Pot Tender.........................................           344.3            344.3           535.5              0.0              0.0             0.0             0.0          0.0      1,224.0
Cleanup............................................           204.0            204.0           163.2              0.0              0.0             0.0            20.4         20.4        612.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Welding--Shipyards **
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welder.............................................            12.5             12.5             0.4              0.0              0.0             0.8             0.2          0.0         26.4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal..............................         2,015.8          2,015.8         2,780.7             83.2            416.2           158.9           237.6        691.7      8,400.0
Shipyard Subtotal..................................           746.8            746.8         1,013.4             30.3            151.6            58.7            86.8        252.0      3,086.4
                                                    --------------------------------------------------------------------------------------------------------------------------------------------
Total, All Industries..............................         2,762.7          2,762.7         3,794.1            113.6            567.8           217.6           324.4        943.6     11,486.4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Data may not sum to totals due to rounding.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Sources: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility and Office of Regulatory Analysis-Health.


                                                    Table V-9--Number of Workers Exposed to Beryllium by Affected Industry and Exposure Range
                                                                                         [[micro]g/m\3\]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                               Exposure level  ([micro]g/m\3\)
      Application group/NAICS               Industry       -------------------------------------------------------------------------------------------------------------------------------------
                                                              0 to <=0.05   >0.05 to <=0.1   >0.1 to <=0.2  >0.2 to <=0.25  >0.25 to <=0.5   >0.5 to <=1.0   >1.0 to <=2.0     >2.0      Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
238320.............................  Painting and Wall             1,046.3         1,046.3         1,443.3            43.2           216.0            82.5           123.3      359.0    4,360.0
                                      Covering Contractors.
238990.............................  All Other Specialty             969.5           969.5         1,337.4            40.0           200.2            76.4           114.3      332.7    4,040.0
                                      Trade Contractors.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Abrasive Blasting--Shipyards *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611a............................  Ship Building and               734.3           734.3         1,013.0            30.3           151.6            57.9            86.6      252.0    3,060.0
                                      Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Welding in Shipyards **
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611b............................  Ship Building and                12.5            12.5             0.4             0.0             0.0             0.8             0.2        0.0       26.4
                                      Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal..............  .....................         2,015.8         2,015.8         2,780.7            83.2           416.2           158.9           237.6      691.7    8,400.0
Shipyard Subtotal..................  .....................           746.8           746.8         1,013.4            30.3           151.6            58.7            86.8      252.0    3,086.4
                                                           -------------------------------------------------------------------------------------------------------------------------------------
Total, All Industries..............  .....................         2,762.7         2,762.7         3,794.1           113.6           567.8           217.6           324.4      943.6   11,486.4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Data may not sum to totals due to rounding.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Sources: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility and Office of Regulatory Analysis-Health.

Loaded Wages and New Hire Rate
    For this PEA, OSHA updated the 2016 FEA wage estimates from 2015 to 
2016 levels using data for base wages by Standard Occupational 
Classification (SOC) from the March 2017 Occupational Employment 
Statistics survey of the Bureau of Labor Statistics. OSHA applied a 
fringe markup (loading factor) of 46.0 percent of base wages (BLS, 
2016c, Document ID 1980); \7\ loaded hourly wages by application group 
and SOC are shown in Table V-10.
---------------------------------------------------------------------------

    \7\ A fringe markup (loading factor) of 46.0 percent was 
calculated in the following way. Employer costs for employee 
compensation for civilian workers averaged $33.94 per hour worked in 
March 2016. Wages and salaries averaged $23.25 per hour worked and 
accounted for 68.5 percent of these costs, while benefits averaged 
$10.70 and accounted for the remaining 31.5 percent. Therefore, the 
fringe markup (loading factor) is $10.70/$23.25, or 45.6 percent. 
Total employer compensation costs for private industry workers 
averaged $32.06 per hour worked in March 2016 (BLS, 2016c, Document 
ID 1980).
---------------------------------------------------------------------------

    OSHA also updated the new hire rate for manufacturing from its 2016 
FEA

[[Page 29197]]

estimate of 27.2 percent to a final estimate of 23.9 percent (BLS, 
2016b, Document ID 1977). The Agency applied the updated rate (23.9 
percent) in this preliminary profile and requests public comment on the 
preliminary wage and hire rates shown in Table V-10.
Baseline Industry Practices and Existing Regulatory Requirements 
(``Current Compliance'') On Hazard Controls and Ancillary Provisions
    Table V-11 reflects OSHA's estimate of current industry compliance 
rates, by application group and job category, for each of the ancillary 
provisions that, under the January 9, 2017 final rule, would affect the 
establishments that are subject to this preliminary deregulatory 
action. See Chapter III of the 2016 FEA for additional discussion of 
the current baseline compliance rates for each provision, which were 
estimated based on site visits, industry contacts, published 
literature, and the Final Report of the Small Business Advocacy Review 
(SBAR) Panel (SBAR, 2008, Document ID 0345). Note that the compliance 
rate is typically the same for all jobs in a given sector, except for 
administrative workers, who generally have zero percent compliance with 
hygiene requirements and 100 percent compliance with PPE (because they 
are not expected to need PPE during work assignments).
    In the 2016 FEA, OSHA estimated that abrasive blasters in 
construction and shipyards had a 75 percent compliance rate with the 
PPE requirements in the beryllium standards. However, upon further 
review of existing OSHA standards, OSHA is revising that estimate to 
100 percent compliance for the purpose of this preliminary economic 
analysis. In construction, OSHA standard 29 CFR 1926.57(f)(5)(v) 
requires abrasive blasting operators to wear full PPE, including 
respirators, gloves, safety shoes, and eye protection. Similarly, 29 
CFR 1915.34(c)(3) requires full PPE for abrasive blaster operators 
performing mechanical paint removal in shipyards. Because it would not 
be appropriate to claim cost savings for withdrawing a rule when 
existing rules already have the same requirements, for the purpose of 
calculating cost savings and foregone benefits in this proposal, OSHA 
preliminarily estimates that withdrawing the beryllium rule's PPE 
requirements for abrasive blaster operators in construction and 
shipyards would have no effect on PPE compliance because those workers 
are already required to wear full PPE. In addition, OSHA also found, 
after a review of shipyard personal protective equipment requirements, 
that gloves are required under 1915.157(a) to protect workers from 
hazards faced by welders, such as thermal burns.\8\ Therefore, for the 
purpose of calculating cost savings and foregone benefits in this 
proposal, the Agency now preliminarily estimates that abrasive blasting 
operators in shipyards and construction and welders in shipyards are 
already equipped with full personal protective equipment 100 percent of 
the time when exposed to beryllium.
---------------------------------------------------------------------------

    \8\ In fact, the 0 percent baseline compliance rate for PPE in 
shipyard welding in the 2016 FEA was simply a mistake insofar as 
baseline compliance rate for PPE in general industry was 100 percent 
in the same document. For a discussion of existing welding 
requirements, see the discussion in Section V.C, Costs, in this 
preamble.
---------------------------------------------------------------------------

    Additionally, upon review, OSHA has preliminarily determined that 
relevant PPE is required by the existing Personal Protective Equipment 
standard (1926.95) and the existing Hand and Body Protection standard 
(1915.157) to protect blasting helpers in construction and shipyards, 
respectively, from dermal exposure to beryllium dust. Therefore, the 
Agency now preliminarily estimates that all affected employees are 
already required to be equipped with PPE 100 percent of the time when 
exposed to beryllium, and uses this preliminary determination in 
calculating proposed cost savings and foregone benefits.
    OSHA requests public comment on this revised approach and on the 
other preliminary baseline compliance estimates shown in Table V-11, as 
well as the methodology behind them as set forth in Chapter III of the 
2016 FEA.
    OSHA also reviewed existing housekeeping requirements and found 
that some housekeeping is also already required for abrasive blasting 
operations in construction and shipyards. CFR 1926.57(f)(7) requires 
that dust not be allowed to accumulate and that spills be cleaned up 
promptly. The general industry Ventilation standard requires the same 
in abrasive blasting in shipyards (see 29 CFR 1910.94(a)(7), 
1910.5(c)). 29 CFR 1926.57(f)(3) and (f)(4) also require exhaust 
ventilation and dust collection and removal systems in abrasive 
blasting operations in construction. Therefore, compliance with 
1926.57(f) and 1910.94(a)(7) already ensures that employers take some 
steps during the blasting operations to prevent accumulations of dust 
sufficient to create exposures exceeding the PEL in clean-up after 
blasting operations are completed.\9\ For these reasons, in this 
proposal, OSHA is only taking a cost savings for housekeeping in 
abrasive blasting operations in construction and shipyards for the cost 
of HEPA-filtered vacuums and similar equipment.
---------------------------------------------------------------------------

    \9\ As explained in the Abrasive Blasting section of the 
Technological Feasibility chapter of the FEA, abrasive blasting 
cleanup workers are those who are ``responsible for cleaning up 
spent abrasive (e.g., by vacuuming or sweeping) at the end of the 
day's blasting.'' Of the 30 cleanup workers in the exposure profile 
of the FEA, two had exposures over the new PEL of 0.2 [micro]g/m\3\. 
One cleanup worker had an 8-hour TWA sample result of 1.1 [micro]g/
m\3\, but blasting took place in the area during this worker's 
cleanup task and it is likely that the nearby abrasive blasting 
contributed to the sample result. The other cleanup worker had a 
sample result of 7.4 [micro]g/m\3\, but that worker's exposure 
appears to be associated with the use of compressed air for cleaning 
in conjunction with nearby abrasive blasting.
---------------------------------------------------------------------------

    In Table V-11, where current labor compliance rates are 100 
percent, OSHA indicates that removal of the ancillary provision in 
question would have no effect on labor compliance rates.
    OSHA welcomes comments on the baseline compliance estimates shown 
in Table V-11, particularly with respect to PPE and housekeeping.
    As a final point on baseline industry practices, OSHA acknowledges 
the possibility of a future decline in the use of coal slag abrasive 
materials and welcomes comment and information on this issue. To the 
extent that coal slag abrasives are replaced by other blasting 
materials which do not have the potential for beryllium exposures of 
concern, the costs and benefits of the PELs for abrasive blasting 
operations would also decrease.

[[Page 29198]]



            Table V-10--Loaded Hourly Wages and Hire Rate for Occupations (Jobs) Exposed to Beryllium and Affected by OSHA's Proposed Action
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                  Fringe        Loaded
                                                                                                                     Median       markup      hourly (or
      Provision in the standard                 Job               NAICS       SOC \a\           Occupation        hourly wage   percentage,   daily \d\)
                                                                                                                                 total \b\       wage
--------------------------------------------------------------------------------------------------------------------------------------------------------
Monitoring \c\......................  Industrial Hygienist             N/A          N/A  N/A....................          N/A           N/A      $164.81
                                       Consultant.
Monitoring \d\......................  IH Technician--Initial.  ...........  ...........  .......................  ...........  ............          \d\
                                                                                                                                                2,642.59
                                      IH Technician--          ...........  ...........  .......................  ...........  ............          \d\
                                       Additional and                                                                                           1,321.30
                                       Periodic.
Regulated Area/Job Briefing \e\.....  Production Worker......        31-33      51-0000  Production Occupations.       $16.55            46        24.16
Medical Surveillance \e\............  Human Resources Manager        31-33      11-3121  Human Resources                49.61            46        72.42
                                                                                          Managers.
Exposure Control Plan, Medical        Clerical...............        31-33      43-4071  File Clerks............        15.43            46        22.53
 Surveillance, and Medical Removal
 \e\.
Training \e\........................  Training Instructor....        31-33      13-1151  Training and                   28.32            46        41.34
                                                                                          Development
                                                                                          Specialists.
Medical Surveillance \e\............  Physician (Employers'          31-33      29-1062  Family and General             90.96            46       132.79
                                       Physician).                                        Practitioners.
Multiple Provisions \f\.............  First Line Supervisor..      Various      51-1011  First-Line Supervisors         28.14            46        41.08
                                                                                          of Production and
                                                                                          Operating Workers.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance.
\a\ 2010 Standard Occupational Classification System. Bureau of Labor Statistics. http://www.bls.gov/soc/classification.htm.
\b\ BLS, 2016c, Document ID 1980.
\c\ ERG estimates based on discussions with affected industries, and inflated to 2016 dollars (BEA, 2017).
\d\ Wages used in the economic analysis for the Silica final rule, inflated to 2016 dollars. Wage rates shown are estimated daily remuneration for
  industrial hygiene services.
\e\ BLS, 2017a.
\f\ BLS, 2017a; Weighted average for SOC 51-1011 in NAICS 313000, 314000, 315000, 316000, 321000, 322000, 323000, 324000, 325000, 326000, 327000,
  335000, 336000, 337000, and 339000.


[[Page 29199]]


                                                    Table V-11--Estimated Current Compliance Rates for Industry Sectors Affected by OSHA's Proposed Deregulatory Action on Beryllium
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                        Hygiene
                                                           Exposure    Beryllium    Regulated      Medical      Medical      Exposure                        ----------------------------   Training                           Vacuum,
        Application group                   Job           monitoring   work areas   areas (%)   surveillance  removal (%)    control             PPE            Employee   Establishment      (%)       Housekeeping labor      bags,
                                                             (%)          (%)                      \a\ (%)                   plan (%)                             (%)           (%)                                           labels (%)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting Construction...  All.................  ...........  ...........  ...........  ............  ...........  ...........  ....................  ...........  .............  ...........  ....................  ...........
Blasting Construction............  Abrasive Blaster....            0           75           75            75            0           75  100% No Effect......           75            75            75  100% No Effect......            0
Blasting Construction............  Pot Tender..........            0           75           75            75            0           75  100% No Effect......           75            75            75  100% No Effect......            0
Blasting Construction............  Cleanup.............            0           75           75            75            0           75  100% No Effect......           75            75            75  100% No Effect......            0
Blasting Shipyards *.............  All.................  ...........  ...........  ...........  ............  ...........  ...........  ....................  ...........  .............  ...........  ....................  ...........
Blasting Shipyards...............  Abrasive Blaster....            0           75           75            75            0           75  100% No Effect......           75            75            75  100% No Effect......            0
Blasting Shipyards...............  Pot Tender..........            0           75           75            75            0           75  100% No Effect......           75            75            75  100% No Effect......            0
Blasting Shipyards...............  Cleanup.............            0           75           75            75            0           75  100% No Effect......           75            75            75  100% No Effect......            0
Welding Shipyard **..............  All.................  ...........  ...........  ...........  ............  ...........  ...........  ....................  ...........  .............  ...........  ....................  ...........
Welding Shipyard.................  Welder..............            0            0            0             0            0            0  100% No Effect......            0             0             0  0%..................            0
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2016).
\a\ Estimated compliance rates for medical surveillance do not include medical referrals. OSHA estimates that baseline compliance rates for medical referrals are zero percent for all application groups shown in the table.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.


[[Page 29200]]

References
Brush Wellman, 2004. Individual full-shift personal breathing zone 
(lapel-type) exposure levels collected by Brush Wellman in 1999 at 
their Elmore, Ohio facility were provided to ERG in August 2004. 
Brush Wellman, Inc., Cleveland, Ohio. Document ID 0578.
Bureau of Economic Analysis, 2017 (BEA, 2017). Table 1.1.9. Implicit 
price deflators for Gross Domestic Product. February 28, 2017. 
Available at: https://www.bea.gov/iTable/iTable.cfm?ReqID=9&step=1#reqid=9&step=3&isuri=1&904=1929&903=13&906=a&905=2016&910=x&911=0 (Accessed March 2, 2017).
Bureau of Labor Statistics, 2010 (BLS, 2011). Occupational 
Employment Statistics Survey--May 2010.
Bureau of Labor Statistics, 2011 (BLS, 2012). Occupational 
Employment Statistics Survey--May 2011.
Bureau of Labor Statistics, 2015 (BLS, 2016a). Occupational 
Employment Statistics Survey--May 2015. (Released March 30, 2016). 
Available at: http://www.bls.gov/oes/tables.htm (Accessed February 
25, 2017).
Bureau of Labor Statistics, 2015 (BLS, 2016b). Job Openings and 
Labor Turnover Survey (JOLTS): 2015. Available at: http://www.bls.gov/jlt/data.htm (Accessed April 25, 2016).
Bureau of Labor Statistics, 2015 (BLS, 2016c). Employer Costs for 
Employee Compensation--March 2016. News Release, June 9, 2016. 
https://www.bls.gov/news.release/archives/ecec_06092016.htm 
(Accessed March 6, 2017).
Bureau of Labor Statistics, 2016 (BLS, 2017a). Occupational 
Employment Statistics Survey--May 2016. (Released March 31, 2017). 
Available at http://www.bls.gov/oes/tables.htm (Accessed March 31, 
2017).
Bureau of Labor Statistics, 2015 (BLS, 2017b). Occupational Outlook 
Handbook. Painters, Construction and Maintenance. https://www.bls.gov/ooh/construction-and-extraction/painters-construction-and-maintenance.htm#tab-2. December 17, 2015. Accessed April 5, 
2017.
ERG, 2014. ``Summary of ERG Interviews on Abrasive Blasters' Use of 
Beryllium Blast Media,'' Memo from Eastern Research Group, October 
6. Document ID 0516.
Greskevitch, M., 2000. Personal email communication between Mark 
Greskevitch of the U.S. National Institute for Occupational Safety 
and Health (NIOSH) and Eastern Research Group, Inc., February 17, 
2000. Document ID 0701.
Kolanz, M., 2001. Brush Wellman Customer Data Summary. OSHA 
Presentation, July 2, 2001. Washington, DC. Document ID 0091.
Meeker, J.D., P. Susi, and A. Pellegrino, 2006. Case Study: 
Comparison of Occupational Exposures Among Painters Using Three 
Alternative Blasting Abrasives. Journal of Occupational and 
Environmental Hygiene 3(9): D80-D84. Document IDs 0698; 1606; and 
1815, Attachment 93.
NIOSH, 1976. National Institute for Occupational Safety and Health, 
1976. Abrasive Blasting Operations: Engineering Control and Work 
Practices Manual. NIOSH Publication No. 76-179. March 1976. Document 
ID 0779.
NIOSH/KTA-Tator, 1998a. Evaluation of Substitute Materials for 
Silica Sand in Abrasive Blasting. KTA-Tator, Inc. Prepared for 
Department of Health and Human Services, Public Health Service, 
Centers for Disease Control and Prevention, National Institute for 
Occupational Safety and Health. Contract No. 200-95-2946. September 
1998. Document ID 1090; 1815, Attachment 85.
NIOSH/KTA-Tator, 1998b. Evaluation of Substitute Materials for 
Silica Sand in Abrasive Blasting. Prepared for Department of Health 
and Human Services, Public Health Service, Centers for Disease 
Control and Prevention, National Institute for Occupational Safety 
and Health. Prepared by KTA-Tator, Inc., Pittsburgh, Pennsylvania. 
Phase 2 (Field Investigations), December 1998. Document ID 0769; 
1815, Attachment 86.
The National Shipbuilding Research Program, 1999. (NSRP, 1999) 
Feasibility and Economics Study of the Treatment, Recycling and 
Disposal of Spent Abrasives. NSRP, U.S. Department of the Navy, 
Carderock Division, Naval Surface Warfare Center in cooperation with 
National Steel and Shipbuilding Company, San Diego, California. NSRP 
0529, N1-93-1. April 9. Document ID 0767.
The National Shipbuilding Research Program, 2000. Cost-Effective 
Clean Up of Spent Grit. NSRP, U.S. Department of the Navy, Carderock 
Division, Naval Surface Warfare Center in cooperation with National 
Steel and Shipbuilding Company, San Diego, California. NSRP 0570, 
N1-95-4. December 15. Document ID 0766.
OSHA. (OSHA, 2004). OSHA Integrated Management Information System. 
Beryllium data provided by OSHA covering the period 1978 to 2003. 
Document ID 0340, Attachment 6.
OSHA. (OSHA, 2005). Beryllium Exposure Data for Hot Work and 
Abrasive Blasting Operations from Four U.S. Shipyards (Sample Years 
1995 to 2004). Data provided to Eastern Research Group (ERG), Inc. 
by the U.S. Department of Labor, Occupational Safety and Health 
Administration. March 2005. [Unpublished]. Document ID 1166. 
Accessed March 10, 2017.
OSHA. (OSHA, 2009). Integrated Management Information System (IMIS). 
Beryllium exposure data, updated April 21, 2009. Data provided to 
Eastern Research Group, Inc. by the U.S. Department of Labor, 
Occupational Safety and Health Administration, Washington, DC 
[Unpublished, electronic files]. Document ID 1165.
OSHA. (OSHA, 2016). Technical and Analytical Support for OSHA's 
Final Economic Analysis for the Final Standard on Beryllium and 
Beryllium Compounds: Excel Spreadsheets Supporting the FEA. OSHA, 
Directorate of Standards, Office of Regulatory Analysis. December 
2016. Document ID OSHA-H005C-2006-0870-2044.
OSHA. (OSHA, 2017). Excel Spreadsheets of Economic Costs, Impacts, 
and Benefits in Support of OSHA's Preliminary Economic Analysis 
(PEA) for the Proposed Deregulatory Action of Removing the Ancillary 
Revisions for the Maritime Sector and the Construction Sector from 
the Scope of the New Beryllium Standards: May 2017.
Queensland Government, 1999. Abrasive Blasting Industry Code of 
Practice. Department of Employment, Training and Industrial 
Relations, Division of Workplace Health and Safety, Queensland 
Government, Australia. June 22, 1999. Document ID 0694.
Small Business Advocacy Review, 2008 (SBAR, 2008). SBAR Panel Final 
Report, OSHA. Document ID 0345.
U.S. Census Bureau, 2009. County Business Patterns: 2007. Available 
at http://www.census.gov/econ/cbp/index.html.
U.S. Census Bureau, 2012. County Business Patterns: 2010. Available 
at http://www.census.gov/econ/cbp/index.html. Document ID 0685.
U.S. Census Bureau, 2014. County Business Patterns: 2012. Available 
at http://www.census.gov/data/datasets/2012/econ/cbp/2012-cbp.html.
U.S. Census Bureau, 2015. Statistics of US Businesses: 2012. 
Available at: https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.
U.S. Environmental Protection Agency, 1997a. (EPA, 1997a) Emission 
Factor Documentation for AP-42, Section 13.2.6, Abrasive Blasting. 
Final Report. U.S. EPA, Office of Air Quality Planning and 
Standards, Emission Factor and Inventory Group, Research Triangle 
Park, North Carolina. September. Document ID 0784.
U.S. Environmental Protection Agency, 1997b. (EPA, 1997b) EPA Office 
of Compliance Sector Notebook Project: Profile of the Shipbuilding 
and Repair Industry. U.S. EPA, Office of Compliance, Office of 
Enforcement and Compliance Assurance, Washington, DC Document No. 
EPA/310-R-97-008. November 1997. Document ID 0783.
U.S. Navy, 2003. 6-19-2: Attachment (1). Navy Occupational Exposure 
Database (NOED) Query Report Personal Breathing Zone Air Sampling 
Results for Beryllium. Document ID 0145. Accessed March 10, 2017.
WorkSafe, 2000. Code of Practice: Abrasive Blasting. WorkSafe 
Western Australia Commission. June. Document ID 0692.

C. Costs of Compliance

Introduction
    In this section, OSHA estimates the cost savings to shipyard and 
construction establishments in all affected application groups as a 
result of this proposal to revoke the ancillary

[[Page 29201]]

provisions in the new shipyard and construction beryllium standards. 
These ancillary provisions to be revoked encompass the following: 
exposure assessment, beryllium regulated areas (and competent persons 
in construction), a written exposure control plan, protective work 
clothing, hygiene areas and practices, housekeeping, medical 
surveillance, medical removal, and worker training. However, affected 
employers are estimated to incur a small additional cost to familiarize 
themselves with the changes to the ancillary provisions in the final 
rule as a result of this proposal. These cost savings incorporate 
OSHA's preliminary updated baseline compliance estimates described in 
section V.B, on which OSHA seeks comment.
    These estimates of cost savings are largely based on the cost 
estimates presented for Regulatory Alternative 2a in the preamble for 
the new beryllium standards (82 FR 2470, 2612-2615 (January 9, 2017)), 
which were in turn derived from the Costs of Compliance chapter 
(Chapter V) of the supporting Final Economic Analysis (``2016 FEA''; 
Document ID 2042). Note that, as OSHA has not proposed changing the 
permissible exposure limit (PEL) or short-term exposure limit (STEL) 
set forth in the new beryllium standards, OSHA has not estimated any 
cost savings related to engineering controls or respirators. OSHA 
retained the same calculation methodology from the 2016 FEA and has 
updated the wages and unit costs from 2015 to 2016 dollars.
    OSHA estimates that this proposal would yield a total annualized 
cost savings of $11.0 million using a 3 percent discount rate across 
the shipyard and construction sectors. All cost savings in this section 
are expressed in 2016 dollars and were annualized using discount rates 
of 3 percent and 7 percent, as required by OMB.\10\ Costs in the 2016 
FEA were expressed in 2015 dollars. Cost savings for this proposal have 
been updated to 2016 dollars. Unit costs developed in this section were 
multiplied by the number of workers who would have to comply with the 
provisions, as identified in Section B of this PEA (Profile of Affected 
Application Groups, Establishments, and Employees). The estimated 
number of affected workers depends on what level of exposure triggers a 
particular provision and the percentage of those workers estimated to 
already be in compliance. In a few cases, costs were calculated based 
on the number of firms.
---------------------------------------------------------------------------

    \10\ See OMB Memo M-17-21 (April 5, 2017). OSHA included the 3 
percent rate in its primary analysis, but Appendix V-A of this PEA 
also presents costs by NAICS industry and establishment size 
categories using, as alternatives, a 7 percent discount rate--shown 
in Table V-22--and a 0 percent discount rate--shown in Table V-23.
---------------------------------------------------------------------------

    The cost methodology is detailed in Chapter V of the 2016 FEA. A 
discussion of affected workers is presented in Section B of this PEA. 
Complete calculations are available in the OSHA spreadsheet in support 
of this PEA (OSHA, 2017). Annualization periods for expenditures on 
equipment are based on equipment life, and one-time costs are 
annualized over a 10-year period.\11\
---------------------------------------------------------------------------

    \11\ Executive Order 13563 directs agencies ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' In addition, OMB 
Circular A-4 suggests that analysis should include all future costs 
and benefits using a ``rule of reason'' to consider for how long it 
can reasonably predict the future and limit its analysis to this 
time period. Annualization should not be confused with depreciation 
or amortization for tax purposes. Annualization spreads costs out 
evenly over the time period (similar to the payments on a mortgage) 
to facilitate comparison of costs and benefits across different 
years. In cases where costs occur on an annual basis, but do not 
change between years, annualization is not necessary, and OSHA may 
refer simply to ``annual'' costs.
---------------------------------------------------------------------------

    Table V-12 shows, by affected application group and six-digit NAICS 
code, annualized compliance cost savings for all establishments, for 
all small entities (as defined by the Small Business Act and the Small 
Business Administration's (SBA's) implementing regulations; see 15 
U.S.C. 632 and 13 CFR 121.201), and for all very small entities 
(defined by OSHA as those with fewer than 20 employees).
    The Agency notes that it did not include an overhead labor cost 
either in the FEA in support of the January 9, 2017 final standards or 
in the primary analysis of this PEA. It is important to note that there 
is not one broadly accepted overhead rate and that 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 costs 
of any specific regulation. There are several approaches to look at the 
cost elements that fit the definition of overhead and there are a range 
of overhead estimates currently used within the federal government--for 
example, the Environmental Protection Agency has used 17 percent,\12\ 
and government contractors have been reported to use an average of 77 
percent.\13\,\14\ Some overhead costs, such as advertising 
and marketing, vary with output rather than with labor costs. 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 those costs 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 (e.g., computer use costs associated 
with 2 hours for rule familiarization by an existing employee).
---------------------------------------------------------------------------

    \12\ Cody Rice, U.S. Environmental Protection Agency, ``Wage 
Rates for Economic Analyses of the Toxics Release Inventory 
Program,'' June 10, 2002.
    \13\ Grant Thornton LLP, 2015 Government Contractor Survey. 
(https://www.grantthornton.com/~/media/content-page-files/public-
sector/pdfs/surveys/2015/Gov-Contractor-Survey.ashx).
    \14\ For a further example 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, as was done in a sensitivity analysis in the FEA 
in support of OSHA's 2016 final rule on Occupational Exposure to 
Respirable Crystalline Silica, the base wages would increase cost 
savings by approximately $238,000 per year, or approximately 2.2 
percent above the primary estimate of cost savings.\15\
---------------------------------------------------------------------------

    \15\ OSHA is reluctant to make changes to the primary estimates 
in this proposal that create cost savings greater than the original 
costs estimated for the beryllium final rule.

[[Page 29202]]



    V-12--Total Annualized Cost Savings, by Sector and Six-Digit NAICS Industry, for Entities Affected by the
Proposed Shipyard and Construction Beryllium Standards; Results Shown by Size Category (3 Percent Discount Rate,
                                                  2016 Dollars)
----------------------------------------------------------------------------------------------------------------
                                                                                                   Very small
        Application group/NAICS               Industry               All        Small entities   entities  (<20
                                                               establishments    (SBA-defined)     employees)
----------------------------------------------------------------------------------------------------------------
                                         Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320................................  Painting and Wall           $4,087,412      $3,445,984        $2,420,659
                                         Covering
                                         Contractors.
238990................................  All Other Specialty          3,787,418       2,916,925         1,998,054
                                         Trade Contractors.
----------------------------------------------------------------------------------------------------------------
                                         Abrasive Blasting--Shipyards *
----------------------------------------------------------------------------------------------------------------
336611a...............................  Ship Building and            3,081,907         990,140           524,187
                                         Repairing.
----------------------------------------------------------------------------------------------------------------
                                             Welding in Shipyards **
----------------------------------------------------------------------------------------------------------------
336611b...............................  Ship Building and               34,217          11,283             6,421
                                         Repairing.
----------------------------------------------------------------------------------------------------------------
                                                      Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal.................  ....................         7,874,830       6,362,909         4,418,712
Shipyard Subtotal.....................  ....................         3,116,125       1,001,423           530,608
                                                             ---------------------------------------------------
Total, All Industries.................  ....................        10,990,954       7,364,331         4,949,321
----------------------------------------------------------------------------------------------------------------
Notes: Figures in rows may not add to totals due to rounding.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use
  mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may
  do both welding and abrasive blasting.
 Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.

    Estimated baseline compliance rates were presented in Table V-11 in 
Section B of this preamble. The estimated costs for the new beryllium 
standards represented the additional costs necessary for employers to 
achieve full compliance. The cost of complying with the new beryllium 
standards' program requirements therefore depended on the extent to 
which OSHA believed employers in affected application groups had 
already undertaken some of the required actions. For example, paragraph 
(e)(1) of the new beryllium standard for shipyards required employers 
to provide regulated areas if employee exposures cannot be reduced 
below the final PEL by using engineering and work practice controls. If 
all employers in an industry have already provided regulated areas, 
perhaps by physically isolating high exposure processes and restricting 
access, then the industry's compliance rate for that requirement would 
be 100 percent, and that industry would incur no new costs for this 
provision under the new beryllium standard for shipyards. Similarly, if 
all employers in shipyards have already provided regulated areas, cost 
savings from removing this requirement would not include the avoidance 
of costs already incurred by employers in shipyards prior to enactment 
of the new beryllium standards.
    Throughout this section, OSHA presents cost-saving formulas in the 
text, usually in parentheses, to help explain the derivation of cost-
saving estimates for the individual provisions. Because the values used 
in the formulas shown in the text are shown only to the second decimal 
place, while the spreadsheets supporting the text are not limited to 
two decimal places, the calculation using the presented formula will 
sometimes differ slightly from the totals presented in the tables.
Program Cost Savings and Definitions of Affected Worker Populations
    This subsection presents OSHA's estimated cost savings from this 
proposal due to revoking the ancillary provisions in the new beryllium 
standards for shipyards and construction. The ancillary provisions 
contained in the new beryllium standards encompass the following nine 
employer duties, whose removal would each provide potential cost 
savings: (1) Assess employees' exposure to airborne beryllium, (2) 
establish beryllium regulated areas (and competent person in 
construction), (3) develop a written exposure control plan, (4) provide 
personal protective work clothing and equipment, (5) establish hygiene 
areas and practices, (6) implement housekeeping measures, (7) provide 
medical surveillance, (8) provide medical removal for employees who 
have developed CBD or been confirmed positive for beryllium 
sensitization, and (9) provide appropriate training. In addition, OSHA 
has estimated that employers would incur a modest cost to familiarize 
themselves with the changes to the ancillary provisions in the final 
rule as a result of this proposal.
    The affected worker population varies by each program element, as 
discussed in each subsection below. For example, in the 2016 FEA the 
regulated area program requirements triggered by the final PEL of 0.2 
[mu]g/m\3\ would apply to a subset of shipyard workers: those for whom 
feasible engineering controls and work practices are not adequate. In 
this PEA, OSHA tracks the cost reductions in the same way and would 
remove those costs.
    Cost savings for each removed program requirement are aggregated by 
employment and by industry. For the most part, unit cost savings do not 
vary by industry, and any variations are specifically noted.
Exposure Assessment
Overview of Regulatory Requirements in the New Beryllium Standards
    Under the new beryllium standards, the employer must assess the 
exposure of each employee who is, or who may reasonably be expected to 
be, exposed to airborne beryllium under either a

[[Page 29203]]

performance option or a scheduled monitoring option.
    The employer must reassess exposures whenever a change in the 
production, process, control equipment, personnel, or work practices 
may reasonably be expected to result in new or additional exposures at 
or above the action level, or when the employer has any reason to 
believe that new or additional exposures at or above the action level 
have occurred.
Proposal Cost-Savings Estimates
    V-13 shows the unit cost savings for avoided initial monitoring and 
subsequent monitoring. These savings are identical to the unit costs 
identified in the 2016 FEA when adjusted to 2016 dollars.

            Table V-13--Exposure Monitoring Unit Cost Savings
------------------------------------------------------------------------
                                              Initial       Subsequent
                  Item                      monitoring      monitoring
------------------------------------------------------------------------
Industrial hygienist daily rate.........       $2,642.59       $1,321.30
Total samples collected per day \1\.....               6               6
Industrial hygienist cost per sample....         $440.43         $220.22
Laboratory cost to process sample.......         $150.79         $150.79
Total direct cost per time weighted              $591.22         $371.01
 average sample \2\.....................
Total direct cost for two STEL samples         $1,182.44         $742.01
 \3\....................................
Worker productivity loss per sample \4\.           $4.03           $4.03
HR recordkeeping per sample (includes              $6.04           $6.04
 employee notification) \4\.............
Total cost savings per time weighted             $601.28         $381.07
 average sample.........................
Total cost savings for two STEL samples.       $1,202.57         $762.14
------------------------------------------------------------------------
Notes:
\1\ Assumes two workers sampled per day and three samples (one TWA
  sample and two STEL samples) taken per worker.
\2\ Includes the cost for one TWA sample plus laboratory cost to process
  sample.
\3\ Includes the cost for two short-term samples plus laboratory costs
  to process samples.
\4\ Includes the prorated cost for a single sample from a combination of
  one TWA and two short-term samples.
Sources: OSHA, 2016 (Document ID 2044); BEA, 2016 (Document ID 1970);
  OSHA, Directorate of Standards and Guidance, Office of Regulatory
  Analysis.

    OSHA estimates that the total annualized exposure assessment cost 
savings would be $5,359,520 for all affected industries.\16\ These cost 
savings, along with the cost savings for each affected NAICS industry, 
are shown in Table V-18 at the end of this program cost-savings 
section.
---------------------------------------------------------------------------

    \16\ The exposure monitoring cost savings are calculated in the 
cost spreadsheet in the `Rule' tab in column BL through CY. Initial 
monitoring cost savings begin in column BT, additional monitoring 
cost savings begin in column CC, and periodic monitoring cost 
savings begin in column CI. The annualized cost savings are 
calculated at 7, 3 and 0 percent in columns CQ through CY.
---------------------------------------------------------------------------

Beryllium Regulated Areas (and Competent Persons in Construction)
Overview of Regulatory Requirements in the New Beryllium Standards
    The new beryllium standard for shipyards requires the employer to 
establish and maintain a regulated area wherever an employee's airborne 
exposure exceeds, or can reasonably be expected to exceed, either the 
time-weighted average (TWA) permissible exposure limit (PEL) or short 
term exposure limit (STEL). A regulated area can include temporary work 
areas where maintenance or non-routine tasks are performed. There is no 
regulated area requirement for construction.
    Employers with employees in regulated areas must comply with 
specific provisions that both limit employee exposure within the 
boundaries of the regulated area and curb the migration of beryllium 
outside the area.
    The new beryllium standard for the construction industry requires 
that, wherever employees are, or can reasonably be expected to be, 
exposed to airborne beryllium at levels above the TWA PEL or STEL, the 
employer designate a competent person to make frequent and regular 
inspections of job sites, materials, and equipment to implement the 
written exposure control plan.
    OSHA assumed that, in restricting access in construction, employers 
would use the briefing option half of the time and direct access 
control the other half.
Cost Savings Estimates
    Based on OSHA's cost estimates in the 2016 FEA (adjusted to 2016 
dollars), the cost savings involved in removing the requirements of 
setting up the regulated area in shipyards include initial set-up time 
by a supervisor ($329), tape to demarcate the regulated area ($29 
annually), and the one-time cost of warning signs to mark the regulated 
area ($144). There is also the annual cost for daily use of disposable 
clothing and two disposable respirators by authorized persons who might 
need to enter the area in the course of their job duties ($6,900). The 
annual total regulated area cost savings in shipyards for the tape, 
clothing, and respirators is therefore $6,929, and annualized cost 
savings is $55 (including the annualized value of the one-time labor 
and sign costs of $329 and $144).
    In the new beryllium construction standard, a competent person must 
implement the written exposure control plan to limit access to work 
areas and ensure that employees use respiratory protection and personal 
protective clothing and equipment. A competent person may implement the 
written exposure control plan either by using the briefing option or 
the direct access control option.
    As shown in Table V-14,\17\ the annual cost savings of the briefing 
option are $90.16 per at-risk worker. These costs savings are drawn 
directly from the costs in the 2016 FEA, beginning on page V-169, with 
the adjustments previously described in this document. The labor cost 
savings for the supervisor to plan and communicate the plan per job 
($10.27 and $4.11, respectively), plus the labor cost savings per job 
for the production worker to be briefed ($9.66) provides a total job 
briefing cost savings per job of $24.04. Assuming an average of 15 jobs 
per year (= 150 working days / 10 day average job length), this equates 
to a job briefing cost savings per year of ($360.63 = $24.04 cost 
savings per job briefing x 15 jobs per year). If the average number of 
workers per crew is 4 workers, then the annual cost savings per worker 
is

[[Page 29204]]

($90.16 = $360.63 cost savings per year / 4 workers).
---------------------------------------------------------------------------

    \17\ Note that numbers may not add due to rounding.
---------------------------------------------------------------------------

    As shown in Table V-14, the annualized cost savings of the direct 
access control option is $80.45 per at-risk crew member. This cost 
savings per at-risk crew member includes the avoided supervisor time to 
set up the area per job ($10.27) which, assuming 15 jobs per year, 
equals $154.05 per year. Dividing the annual cost savings ($154.05) by 
the average number of workers per crew (4) equals the per worker cost 
savings for the avoided supervisor time to set up the area ($38.51). 
The other unit cost savings are the annualized hazard tape cost savings 
per worker ($35.55 = $9.48 hazard tape cost savings per job x 15 jobs 
per year / 4 workers per crew). The annualized warning sign cost 
savings per worker ($6.38 = $25.54 warning signs cost savings per year 
/ 4 workers per crew), which total an annualized materials cost savings 
per worker of $41.94. Adding the annualized cost savings per worker to 
identify and set up the controlled access area ($38.51) to the 
annualized materials cost savings per worker ($41.94) equals the total 
cost savings of the direct access control option per worker per year 
($80.45). Consequently, as shown in Table V-14, the annualized cost 
savings of competent persons restricting access to work areas is $85.30 
per at-risk crew member (average of $90.16 and $80.45).

           V-14--Unit Cost Savings for Not Implementing Written Exposure Control Plan in Construction
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Item                                                       Value
----------------------------------------------------------------------------------------------------------------
                                     Job Frequency and Crew Size Assumptions
----------------------------------------------------------------------------------------------------------------
Average crew size (workers).....................               4
Average job length (days).......................              10
Working days per year...........................             150
Percentage choosing Option 1....................             50%
----------------------------------------------------------------------------------------------------------------
                                             Option 1: Job Briefing
----------------------------------------------------------------------------------------------------------------
Item                                                 Hour burden      Labor cost  Materials cost      Total unit
                                                                                                            cost
----------------------------------------------------------------------------------------------------------------
Supervisor time to revise plan per job..........            0.25          $10.27             N/A          $10.27
Supervisor and worker time for briefing per job.            0.10           13.77             N/A           13.77
Total per job...................................            0.35           24.04             N/A           24.04
Total cost savings per worker per year..........            1.31           90.16             N/A           90.16
----------------------------------------------------------------------------------------------------------------
                                         Option 2: Direct Access Control
----------------------------------------------------------------------------------------------------------------
Supervisor time to identify and set up work area            0.25           10.27             N/A           10.27
 per job........................................
Supervisor time to identify and set up work area            0.94           38.51             N/A           38.51
 per worker per year............................
Hazard tape cost savings per job (100 ft.)......             N/A             N/A           $9.48            9.48
Hazard tape cost savings per worker per year....             N/A             N/A           35.55           35.55
One-time warning signs cost savings (3 signs)...             N/A             N/A           72.23           72.23
Annualized warning sign cost savings (3%, 3                  N/A             N/A           25.54           25.54
 years).........................................
Annualized warning sign cost savings per worker.             N/A             N/A            6.38            6.38
Total annualized materials cost savings per                  N/A             N/A           41.94           41.94
 worker.........................................
Total cost savings per worker per year..........             N/A           38.51           41.94           80.45
----------------------------------------------------------------------------------------------------------------
                              Weighted Average Annual Unit Cost Savings per Worker
----------------------------------------------------------------------------------------------------------------
Average annual unit cost savings per worker.....             N/A             N/A             N/A           85.30
----------------------------------------------------------------------------------------------------------------
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis
Note: Figures in rows may not add to totals due to rounding.

    OSHA estimates the total annualized cost savings of regulated areas 
and competent person requirements is $261,099 for all affected shipyard 
and construction industries, with competent person requirements 
accounting for $8,464 of the total.\18\ The cost savings for each 
affected NAICS industry is shown in Table V-18 at the end of this 
program cost-savings section.
---------------------------------------------------------------------------

    \18\ The regulated area cost savings are calculated in the cost 
spreadsheet in the `Rule' tab in column CZ through FS. The 
annualized cost savings are calculated at 7, 3, and 0 percent in 
columns FK through FS.
---------------------------------------------------------------------------

Written Exposure Control Plan
Overview of Regulatory Requirements in the New Beryllium Standards
    Under the new beryllium standards, employers are required, for 
tasks generating airborne beryllium exposure above the action level, to 
establish and maintain a written exposure control plan.
    Further, employers must update the exposure control plan when:
    (A) Any change in production processes, materials, equipment, 
personnel, work practices, or control methods results or can reasonably 
be expected to result in new or additional airborne exposures to 
beryllium;
    (B) The employer becomes aware that an employee has a beryllium-
related health effect or symptom; or
    (C) The employer has any reason to believe that new or additional 
airborne exposures are occurring or will occur.
    Finally, the employer must make a copy of the written exposure 
control plan accessible to each employee who is, or can reasonably be 
expected to be, exposed to airborne beryllium.
Cost Savings Estimates
    The estimated cost savings per establishment for an average-sized 
firm to develop the initial written exposure control plan is $579.39--
based on a manager spending 8 hours, at an hourly wage of $72.42 (Human 
Resources

[[Page 29205]]

Managers, SOC: 11-3121), to develop the plan--for an annualized cost of 
$67.92.
    In addition, because larger firms with more affected workers will 
need to develop more complicated written control plans, OSHA estimated 
that the development of a plan would require an extra thirty minutes of 
a manager's time per affected employee. The cost for an extra thirty 
minutes of a manager's time per affected employee to develop a more 
complicated plan is $36.21 (0.5 x $72.42) per affected employee in this 
PEA, for an annualized cost of $4.50 per employee.
    Because of various triggers under which the employer would have to 
update the plan annually after the first year, the Agency further 
estimated that, on average, managers would need 12 minutes (0.2 hours) 
per affected employee per quarter--or 48 minutes (4 x 12), which equals 
0.8 hours, per affected employee per year--to review and update the 
plan. Thus, the cost for managers to review and update the plan would 
be $57.94 (0.8 x $72.42 per affected employee for years 2-10.
    Finally, each year, 5 minutes of clerical time for providing each 
employee with a copy of the written exposure control plan, at a 
clerical wage of $22.53 per hour (File Clerks SOC 43-4071), comes to an 
annual cost of $1.88 per employee.
    OSHA estimates that the total annualized cost savings for removing 
the requirements for development, implementation, distribution, and 
update of a written exposure control plan is $233,032 for all affected 
industries in shipyards and construction.\19\ These cost savings, along 
with the cost savings for each affected NAICS industry, are shown in 
Table V-18 at the end of this program cost-savings section.
---------------------------------------------------------------------------

    \19\ The written exposure control plan cost savings are 
calculated in the cost spreadsheet in the `Rule' tab in column LG 
through ML. The annualized cost savings are calculated at 7, 3 and 0 
percent in columns MA through ML.
---------------------------------------------------------------------------

Personal Protective Clothing and Equipment
Overview of Regulatory Requirements in the New Beryllium Standards
    Under the new beryllium standards, personal protective clothing and 
equipment are required for workers in shipyards and construction:
    1. Whose airborne exposure exceeds, or can reasonably be expected 
to exceed, the TWA PEL or STEL; or
    2. Where employees' skin can reasonably be expected to be exposed 
to beryllium.
    For the most part, the cost savings for PPE follow the cost 
estimates in the 2016 FEA. However, there are two exceptions. First, 
the new beryllium standards require shipyard welders to wear gloves 
because it is reasonable to expect that their skin will be exposed to 
beryllium. In the 2016 FEA OSHA listed the shipyard welders' compliance 
rate with this PPE requirement at 0 percent, inadvertently suggesting 
that shipyard welders were not already wearing gloves when, in fact, 
all shipyard welders are already required to wear gloves. In preparing 
this proposal, OSHA reviewed its compliance rates and discovered the 
oversight.\20\ As a result of this review, OSHA has preliminarily 
adjusted estimated shipyard welding compliance rates with the PPE 
requirement from 0 percent in the FEA to 100 percent for this proposal 
and calculated proposed cost savings using this preliminary estimate.
---------------------------------------------------------------------------

    \20\ Upon review, the Agency now realizes that, under 
1915.157(a) for PPE (as well as under OSHA guidance for shipyards 
during welding), employers must provide gloves to protect against 
burns. In addition, OSHA now understands that gloves for shipyard 
welders are standard industry practice.
---------------------------------------------------------------------------

    Second, for the same reason as with welders, the beryllium 
standards also require abrasive blasters in shipyards and construction 
to wear gloves as PPE. In the 2016 FEA, OSHA estimated that abrasive 
blasters in construction and shipyards had a 75 percent compliance rate 
with the PPE requirements in the beryllium standard. However, upon 
review, OSHA has preliminarily revised this estimate because the 2016 
FEA inadvertantly did not take account of the fact that relevant PPE 
was actually already required by other OSHA standards for abrasive 
blasters in construction and shipyards. See 1915.34(c)(3)(iv); 
1926.57(f)(5)(v). Additionally, OSHA has determined that relevant PPE 
is required by the existing Personal Protective Equipment standard 
(1926.95) and the existing Hand and Body Protection standard (1915.157) 
to protect blasting helpers in construction and shipyards, 
respectively, from dermal exposure to beryllium dust. Therefore, for 
the purpose of calculating cost savings, the Agency now preliminarily 
estimates that all affected employees are already required to be 
equipped with PPE 100 percent of the time when exposed to beryllium.
Cost Savings Estimates
    As discussed above, given the existing PPE requirements, OSHA 
estimates that there are no estimated cost savings as a result of 
revoking the PPE requirements for construction and shipyard employers 
in the beryllium final rule.
Hygiene Areas and Practices
Overview of Regulatory Requirements in the New Beryllium Standards
    The new beryllium standards require affected shipyard and 
construction employers to provide readily accessible washing facilities 
to remove beryllium from the hands, face, and neck of each employee 
exposed to beryllium. The employer must also provide a designated 
change room in workplaces where employees would have to remove their 
personal clothing and don the employer-provided protective clothing. 
The employer must ensure that each employee exposed to beryllium uses 
these facilities when necessary.
Cost Savings Estimates
    The Agency included in the 2016 FEA no additional cost for readily 
accessible washing facilities, under the expectation that employers 
already have such facilities in place. OSHA notes that employers of 
abrasive blasters exposed to beryllium in shipyards and construction 
work are typically already required to provide readily accessible 
washing facilities to comply with other OSHA standards.\21\ Therefore, 
OSHA is estimating no cost savings from washing facilities due to this 
proposal.
---------------------------------------------------------------------------

    \21\ OSHA's shipyard standard at 29 CFR 1915.58(e) requires 
handwashing facilities ``at or adjacent to each toilet facility'' 
and ``equipped with . . . running water and soap, or with waterless 
skin-cleansing agents that are capable of . . . neutralizing the 
contaminants to which the employee may be exposed.'' OSHA's 
construction standard at 29 CFR 1926.51(f)(1) requires ``adequate 
washing facilities for employees engaged in . . . operations where 
contaminants may be harmful to the employees. Such facilities shall 
be in near proximity to the worksite and shall be so equipped as to 
enable employees to remove such substances.''
---------------------------------------------------------------------------

    The Agency is, however, including cost savings for the removal of 
requirements to add a change room and segregated lockers. OSHA included 
these costs in the 2016 FEA for acquisition of portable structures, for 
employers who would need to add these. OSHA estimates that portable 
structures, adequate for 10 workers per establishment, could be rented 
annually for $3,579 (adjusted from Lerch, 2003) and that lockers could 
be procured for a capital cost of $448--or $53 annualized--per 
establishment (adjusted from Lab Safety, 2004). This results in an 
annualized cost of $4,027 ($3,579 + $448) per facility for a portable 
change room with lockers.
    OSHA estimated in the 2016 FEA that 10 percent of affected 
establishments will be unable to meet the final TWA PEL and will, 
therefore, require change

[[Page 29206]]

rooms. The Agency expected that, in many cases, a worker will simply be 
adding, and later removing, a layer of clothing (such as a lab coat, 
coverall, or shoe covers) at work, which might involve no more than a 
couple of minutes a day. However, in other cases, a worker may need a 
full clothing change. Taking all these factors into account, OSHA 
estimated that a worker using a change room would need 5 minutes per 
day to change clothes. The annual cost per employee to change clothes 
(in a change room) is $480.54. This cost was based on a production 
worker earning $24.16 an hour (Production Occupation, SOC: 51-0000) and 
taking 5 minutes per day to change clothes for 250 days per year ((5/
60) x $24.16 x 250).
    The Agency estimates the total annualized cost savings of removing 
the provision on hygiene areas and practices to be $1,573,230 for all 
affected establishments.\22\ The breakdown of these cost savings by 
NAICS code can be seen in Table V-18 at the end of this program cost-
savings section.
---------------------------------------------------------------------------

    \22\ The hygiene areas and practices cost savings are calculated 
in the cost spreadsheet in the `Rule' tab in column NO through OU. 
The annualized cost savings are calculated at 7, 3 and 0 percent in 
columns OJ through OU.
---------------------------------------------------------------------------

Housekeeping
Overview of Regulatory Requirements in the New Beryllium Standards
    Housekeeping includes following the written exposure control plan, 
promptly cleaning up all spills and emergency releases of beryllium, 
and, when cleaning, using methods such as HEPA-filtered vacuuming. The 
new beryllium standards prohibits cleaning methods that could cause 
dust to be airborne, such as dry sweeping or compressed air without 
adequate LEV, unless proper respiratory equipment is worn. All methods 
must be in accordance with the written exposure control plan. When a 
shipyard or construction employer transfers materials containing 
beryllium to another party for use or disposal, the employer must 
provide the recipient with a copy of the warning label language.
Cost-Savings Estimates
    OSHA estimated the following costs in the 2016 FEA in shipyards 
(amounts adjusted for 2016 dollars): A one-time annualized cost per 
worker of a HEPA-filtered vacuum ($614); the annual cost per worker of 
the additional time needed to perform housekeeping ($503); and the 
annual cost of the warning labels per worker ($5). The total annual 
per-employee cost was $509, updated to 2016 dollars. Upon further 
review, OSHA preliminarily determined that affected employers in 
construction are already required to minimize dust accumulations 
through compliance with 29 CFR 1926.57(f)(7), which requires that dust 
not be allowed to accumulate and that spills be cleaned up promptly, 
and 29 CFR 1926.57(f)(3) and (f)(4), which require exhaust ventilation 
and dust collection and removal systems in abrasive blasting operations 
in construction. Similarly, the general industry Ventilation standard 
requires that dust not be allowed to accumulate and that spills be 
cleaned up promptly in abrasive blasting in shipyards (see 29 CFR 
1910.94(a)(7), 1910.5(c)). For these reasons, OSHA preliminarily 
determined that affected employers would already have to perform some 
housekeeping, and for the purpose of the cost savings estimates in this 
proposal, OSHA is only including a cost savings for housekeeping in 
abrasive blasting operations in construction and shipyards for the cost 
of HEPA-filtered vacuums and similar equipment.
    The Agency estimates that there are 11,460 total affected employees 
in blasting in construction and shipyards, as well as 26 affected 
employees in shipyard welding, and that the total annualized cost 
savings in this proposal of removing this ancillary provision is 
$901,335.\23\ Of this, $886,008 is attributed to blasting in 
construction and shipyards and encompasses only the cost savings for 
HEPA vacuums and associated equipment. As shown in Table V-11 above, 
OSHA preliminarily determined that employers in these operations are 
already fully compliant with any labor requirements due to existing 
requirements. The Agency has preliminarily determined that the shipyard 
welding operation would not already be compliant with any labor 
requirements; thus, the $15,327 estimated cost savings in this sector 
is attributed to both labor and equipment. The breakdown of these cost 
savings by NAICS code is shown in Table V-18 at the end of this program 
cost-savings section.
---------------------------------------------------------------------------

    \23\ The housekeeping cost savings are calculated in the cost 
spreadsheet in the `Rule' tab in column OV through PW. The 
annualized cost savings are calculated at 7, 3 and 0 percent in 
columns PO through PW.
---------------------------------------------------------------------------

Medical Surveillance
Overview of Regulatory Requirements in the New Beryllium Standards
    The new beryllium standards require affected employers in shipyards 
and construction to make medical surveillance available at a reasonable 
time and place, and at no cost, to the following employees:
    1. Employees who have been, or are reasonably expected to be, 
exposed at or above the action level for more than 30 days in the last 
12 months;
    2. Employees who show signs or symptoms of chronic beryllium 
disease (CBD) or signs or symptoms of other beryllium-related health 
effects, such as rashes;
    3. Employees exposed to beryllium during an emergency; and
    4. Employees whose most recent written medical opinion required by 
this standard recommends periodic medical surveillance.
Cost Savings Estimates
    OSHA previously identified the fees and other medical expenses that 
employers would incur to comply fully with the medical surveillance 
requirements in the new standards. Those costs would be saved under 
this proposal and are expressed as cost savings in the tables that 
follow.
Unit Cost Savings for Medical Surveillance
    Table V-15 below lists the direct unit cost savings for removing 
initial medical surveillance activities including: Work and medical 
history, physical examination, pulmonary function test, BeLPT, LDCT 
scan, and additional tests.

    Table V-15--Direct Unit Cost Savings for the Medical Surveillance
                                 Program
------------------------------------------------------------------------
                          Item                                 Value
------------------------------------------------------------------------
                          Initial Medical Costs
------------------------------------------------------------------------
Work and medical history................................          $42.83
Physical examination (skin and respiratory tract).......         $128.48

[[Page 29207]]

 
Pulmonary function test.................................          $60.21
Cost Savings of additional tests deemed appropriate by           $220.19
 PLHCP..................................................
Percent of workers requiring additional tests...........             10%
Total initial medical cost savings per worker...........         $253.54
------------------------------------------------------------------------
                             Lost Work Time
------------------------------------------------------------------------
Employee hours..........................................            2.08
Employee wage...........................................          $24.16
HR manager hours........................................            0.25
HR manager wage.........................................          $72.42
Supervisor hours........................................            0.33
Supervisor wage.........................................          $41.08
Cost Savings of Lost work time..........................          $82.13
------------------------------------------------------------------------
       Total Medical and Lost Work Time Cost Savings per Employee
------------------------------------------------------------------------
Total cost savings per employee.........................         $335.68
Annualized total cost savings per employee..............         $211.50
------------------------------------------------------------------------
                                  BeLPT
------------------------------------------------------------------------
BeLPT...................................................         $313.77
Employee hours..........................................            0.08
Employee wage...........................................          $24.16
Cost Savings of Lost work time..........................           $2.01
Unit BeLPT cost savings per employee....................         $315.78
Annualized per employee cost savings of biennial BeLPTs          $198.97
 for 10 years \1\.......................................
------------------------------------------------------------------------
                                LDCT Scan
------------------------------------------------------------------------
LDCT scan...............................................         $847.74
Review LDCT Scan with specialist........................         $275.24
Employee hours..........................................            3.50
Employee wage...........................................          $24.16
Cost Savings of Lost work time..........................          $84.56
Unit LDCT scan cost savings per employee................       $1,207.54
Annualized per employee cost savings of biennial LDCT            $612.69
 scan for 10 years \2\..................................
------------------------------------------------------------------------
               Total Annualized cost savings per employee
------------------------------------------------------------------------
Total...................................................       $1,023.17
------------------------------------------------------------------------
Notes:
\1\ Calculated as the annualized discounted present value of $1,640 for
  biennial BeLPTs. See following discussion for more detail.
\2\ Calculated as the annualized discounted present value of $3,363 for
  bi-annual CT scans. See following discussion for more detail.
Sources: National Jewish Medical Center, 2005 (Document ID 2001);
  Intellimed International, 2003, (Document ID 2012); Cost Helper, 2010;
  (Document ID 1990); BLS, 2017a; BLS, 2017c; BLS, 2016c (Document ID
  1980) ; BEA, 2017 (Document ID 1970); US DOL, OSHA, Directorate of
  Standards and Guidance, Office of Regulatory Analysis.

Biennial Examination and Testing and BeLPT Testing
    The fees, in 2016 dollars, for the total unit annual cost savings 
for the avoided medical examinations and tests (excluding the BeLPT 
test) and the time required for both the employee and the supervisor is 
$335.68. The total unit annual cost savings for the avoided BeLPT costs 
is $315.78. Because the required medical examination and the BeLPT 
would each typically occur only every two years, OSHA calculates the 
annualized cost savings of removing that examination and the BeLPT test 
as follows: taking the present value (PV) of the costs over 10 years 
and then annualizing them over 10 years at 3 percent. Using this 
methodology, the unit annualized biennial exam cost savings are $211.50 
and the unit annualized BeLPT cost savings are $198.97.
LDCT Scans
    The new beryllium standards require that a low-dose computed 
tomography (LDCT scan) be offered to employees eligible for medical 
surveillance whenever recommended by the licensed physician.
    As it did with the 2016 FEA costs for LDCT scans, OSHA has based 
its cost saving estimates on the eligible employees receiving LDCTs 
every two years.
    The total yearly cost savings for biennial LDCT scans consists of 
avoided medical costs totaling $1,122.98, comprised of an $847.74 fee 
for the scan (CT-scan, 2012, Document ID 0568) and the cost of a 
specialist to review the results, which OSHA estimates would cost 
$275.24. The Agency estimates an additional cost savings of $84.56 of 
lost work time,\24\ for a total of $1,207.54 ($1,122.98 + $84.56). The 
annualized cost savings for avoided biennial CT scans is $364.00. The 
annualized total

[[Page 29208]]

cost savings per employee is $612.69 ($430.13 + $139.65 + $42.91).\25\
---------------------------------------------------------------------------

    \24\ Time cost is calculated using a wage rate of $23.87 
(Production Worker, SOC 51-0000) and a total of 3.5 hours lost: 60 
minutes to travel to and from the appointment, 60 minutes to 
administer the scan, 60 minutes to travel to and from a meeting with 
a specialist to review the results and 30 minutes to review the 
results with the specialist (updated from ERG, 2013) (Document ID 
1781).
    \25\ The components represent the annualized unit cost-saving 
elements of the LDCT scan, reviewing the LDCT scan with a 
specialist, and lost work time.
---------------------------------------------------------------------------

Number of Workers Requiring LDCT Scans
    In the 2016 FEA, OSHA estimated that the number of workers that the 
physician recommends to receive LDCT scans would be 25 percent of 
workers who are exposed above 0.2 in the exposure profile. The estimate 
of 25 percent was based on the fact that roughly this percentage of 
workers has 15+ years of job tenure in the durable manufacturing sector 
(BLS, 2013, Document ID 0672) and that all those with 15+ years of job 
tenure and current exposure over 0.2 would have had at least 5 years of 
such exposure in the past. OSHA uses the same estimate in calculating 
the cost savings in this PEA.
CBD Diagnostic Center Referrals and Evaluations
    For purposes of costing this consultation, OSHA used the marginal 
costs of a physician's time (wages plus fringe benefits) of $132.79 per 
hour (Physicians and Surgeons, All Other, SOC: 29-1069); the 
physician's cost for the 15 minute consultation is therefore $33.20 
((15/60) x $132.79). Similarly the worker's time for this consultation, 
with a production worker's hourly wage of $24.16 (updated from 
Production Occupations, SOC: 51-0000), results in a cost for the 
employee's time of $6.04 ((15/60) x $24.16). Hence the total employer 
cost savings of avoiding this consultation is $39.24 ($33.20 + $6.04). 
These cost savings are included in Table V-16 below.
    Table V-16 also lists the direct unit cost savings for a clinical 
evaluation with a specialist at a CBD diagnostic center.

  Table V-16--Unit Cost Savings for Medical Evaluation and Testing per
               Worker Referred to a CBD Diagnostic Center
------------------------------------------------------------------------
                          Item                                 Value
------------------------------------------------------------------------
                               All Workers
------------------------------------------------------------------------
Referral examination for new patients \1\...............       $6,456.80
Employer physician hours................................            0.25
Employer physician wage.................................         $132.79
------------------------------------------------------------------------
                           Travelling Workers
------------------------------------------------------------------------
Employee hours..........................................           24.25
Employee wage...........................................          $24.16
Lost work time \2\......................................         $619.09
Cost-savings of travel & living expenses per employee            $620.71
 \3\....................................................
                                                         ---------------
    Total cost savings per travelling employee..........       $7,696.60
------------------------------------------------------------------------
                         Workers Tested Locally
------------------------------------------------------------------------
Employee hours..........................................            4.25
Employee wage...........................................          $24.16
Lost work time \4\......................................         $135.88
                                                         ---------------
    Total cost savings per non-travelling employee......       $6,592.68
------------------------------------------------------------------------
                      Weighted Average--All Workers
------------------------------------------------------------------------
Average cost-savings per employee.......................       $7,420.62
------------------------------------------------------------------------
\1\ Includes an exam with a specialist, blood tests, plethysmography, a
  pulmonary stress test, bronchoscopy with lung biopsy, and a chest CT
  scan. The unit costs of the components of the evaluation are
  considered confidential by Healthcare Facility A.
\2\ For \3/4\ of eligible workers, assumes three 8-hour work days for
  the employee at $24.16/hour as well as a 15 minute discussion between
  the employee and the physician at $132.79/hour. See following
  discussion for more detail.
\3\ Includes out-of-town travel costs and $53/day living expenses for \3/
  4\ of workers. See following discussion for more detail.
\4\ For \1/4\ of eligible workers, assumes four hours for the employee
  at $24.16/hour as well as a 15 minute discussion between the employee
  and the physician at $132.79/hour. See following discussion for more
  detail.
Sources: Healthcare Facility A, 2014 (Document ID 2044): U.S. DOT, 2012
  (PEA) (Document ID 2031); OSHA Estimate (PEA) (Document ID 0385); BLS,
  2016a (Document ID 1978); BLS, 2016 (Document ID 1980); BEA, 2016
  (Document ID 1970): U.S. DOL, OSHA, Directorate of Standards and
  Guidance, Office of Regulatory Analysis.

    In addition, as shown in Table V-16, there are cost savings for 
avoided lost productivity and travel.
    The total cost of a clinical evaluation with a specialist at a CBD 
diagnostic center is equal to the cost of the examination plus the cost 
of lost work-time and the cost for the employee to travel to the CBD 
diagnostic center. For the two latter types of costs, 75 percent were 
based on out-of-town travel to a CBD diagnostic center and 25 percent 
were based on a local CBD diagnostic center. The resulting weighted-
average cost-saving estimates of $7,420.62 for testing at a CBD 
diagnostic center are presented in Table V-16.
    Employees who are not already diagnosed with CBD can be referred to 
a CBD diagnostic center if the employee is confirmed positive 
(sensitized to beryllium). OSHA estimated in the 2016 FEA that during 
the first year that the medical surveillance provisions are in effect 
14.0 percent of the 640 workers who are tested for beryllium 
sensitization will be confirmed positive for sensitization (through 
BeLPT tests) and referred to a CBD diagnostic center.

[[Page 29209]]

    Based on these unit costs and the number of employees requiring 
medical surveillance estimated above, OSHA estimated that the removal 
by this proposal of the medical surveillance and referral provisions 
would result in an annualized total cost savings of $1,414,112.\26\ 
These cost savings by NAICS code are shown in Table V-18 at the end of 
the program cost-savings section.
---------------------------------------------------------------------------

    \26\ The medical surveillance cost savings are calculated in the 
cost spreadsheet in the `Rule' tab in column FT through KK. The 
annualized cost savings are calculated at 7, 3 and 0 percent in 
columns JT through KK.
---------------------------------------------------------------------------

Medical Removal Provision
Overview of Regulatory Requirements in the New Beryllium Standards
    For affected construction and shipyard establishments, if an 
employee works in a job with airborne exposure at or above the action 
level, is diagnosed with CBD or confirmed positive, and provides 
documentation of the employee's diagnosis of CBD or confirmed positive 
status to the employer, that employee is eligible for medical removal 
and has two choices:
    i. Removal from the current job, or
    ii. Remain in a job with airborne exposure at or above the action 
level while wearing a respirator in accordance with paragraph (g) of 
the standards.
    If the employee chooses removal, the employee must accept 
comparable work if such work is available. If comparable work is not 
available the employer must offer the employee paid leave for six 
months or until such time as comparable work becomes available, 
whichever comes first. During that six-month period, whether the 
employee is re-assigned or placed on paid leave, the employer must 
continue to maintain the employee's base earnings, seniority and other 
rights and benefits that existed at the time of removal.
Cost Savings Estimates
    Revoking the medical removal provision would provide cost savings 
due to workers no longer being eligible for medical removal. OSHA 
estimated that, under the January 2017 final standards for construction 
and shipyards, 332 workers would be eligible for medical removal in the 
first year and 26 workers each year would be eligible in subsequent 
years. OSHA estimated an average medical removal cost per worker 
assuming that 75 percent of firms would be able to find the employee an 
alternate job, and the remaining 25 percent of firms would not. With 
updated hourly wages for a production worker of $24.16 (Production 
Occupations, SOC: 51-0000) and for a clerical worker of $22.53 (File 
Clerks, SOC: 43-4071), the weighted average of these costs is $7,266 
per worker (0.75 x $1,363 + $273 \27\) + 0.25 x ($24,161).
---------------------------------------------------------------------------

    \27\ The cost of the salary differential for 6 months of work in 
a job with exposures less than the AL plus one month of re-training.
---------------------------------------------------------------------------

    Based on the above unit costs, OSHA estimates that revoking the 
medical removal provision in this proposal would result in an 
annualized total cost savings of $471,601.\28\ The breakdown of these 
cost savings by NAICS code can be seen in Table V-18 at the end of this 
program cost section.
---------------------------------------------------------------------------

    \28\ The medical removal cost savings are calculated in the cost 
spreadsheet in the `Rule' tab in column KL through LF. The 
annualized cost savings are calculated at 7, 3 and 0 percent in 
columns KX through LF.
---------------------------------------------------------------------------

Familiarization Costs
Overview of Regulatory Requirements in the New Beryllium Standards
    In the new beryllium standards, OSHA included familiarization costs 
to account for employers' time to understand the ancillary provisions 
and the other new and revised components of the applicable new 
standard.
Cost Estimates
    As some employers may already have been reviewing the 2016 FEA, in 
an effort to be conservative, OSHA has not assumed any familiarization 
cost savings. In the 2016 FEA, the amount of familiarization time 
required depended, in part, on the range of beryllium-related 
operations. As the focus of this proposal is on removing the ancillary 
requirements, this variability of required familiarization time has 
been largely eliminated. Employers would thus only need to spend a 
brief amount of time reviewing this proposal (if it became final) to 
look at the changes from the 2016 FEA. Therefore, OSHA expects that if 
this proposal is adopted, employers would spend one-tenth of one hour 
per firm (or 6 minutes) reviewing its changed requirements.
    Table V-17 shows the unit costs, by establishment size, of 
reviewing the changes in this proposal as a result of removing the 
ancillary provisions. These costs will likely be one-time costs 
incurred during the first year in which this PEA becomes final, but the 
aggregate costs are annualized for consistency with the other estimates 
for this proposal. Based on the unit familiarization (negative) cost 
savings in Table V-17, the total annualized familiarization costs of 
this proposal are estimated to be $1,346.\29\ The breakdown of these 
costs by NAICS code can be seen in Table V-18 at the end of this 
program cost-savings section.
---------------------------------------------------------------------------

    \29\ The familiarization cost savings are calculated in the cost 
spreadsheet in the `Rule' tab in column TP through UZ. The 
annualized cost savings are calculated at 7, 3 and 0 percent in 
columns UF through UZ.

            Table V-17--Familiarization--Construction and Shipyards Assumptions and Unit Cost Savings
----------------------------------------------------------------------------------------------------------------
                                                                                    Medium (20-
                                                                    Small (<20)        499)        Large (500+)
----------------------------------------------------------------------------------------------------------------
Hours per establishment.........................................             0.1             0.1             0.1
Total cost savings per establishment............................         ($4.11)         ($4.11)         ($4.11)
Annualized cost savings.........................................         ($0.48)         ($0.48)         ($0.48)
----------------------------------------------------------------------------------------------------------------
Note: Based on supervisor wage of $41.08, inclusive of benefits (BLS, 2016) (Document ID 1980).
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis, based on OSHA
  (2017) (Document ID 2044).

Training
Overview of Regulatory Requirements in the New Beryllium Standards
    As specified in both the new shipyard and construction beryllium 
standards and the existing OSHA standard 29 CFR 1910.1200 on hazard 
communication, the employer must provide initial training and repeat 
annual training for each employee who is, or who can reasonably be 
expected to be, exposed to airborne beryllium. The initial training is 
required by the time of initial assignment, and will be applicable to 
affected shipyard and construction employers.

[[Page 29210]]

Cost Savings Estimates
    The cost savings track the training costs in the 2016 FEA to 
educate employees about the new requirements of beryllium standards. 
This additional training would not be necessary if the only impact on 
construction and shipyards is a change to the PEL. In the 2016 FEA, 
OSHA determined that training, which includes hazard communication 
training, will likely be conducted by in-house safety or supervisory 
staff with the use of training modules and videos. It is estimated that 
this training will last, on average, eight hours. (Note that this 
estimate does not include the time taken for hazard communication 
training that is already required by 29 CFR 1910.1200.) The Agency 
anticipated that establishments will be able to purchase sufficient 
training materials at an average cost of $2.12 per worker, encompassing 
the cost of handouts, video presentations, and training manuals and 
exercises. For initial and periodic training, OSHA estimated an average 
class size of five workers (each at a wage of $24.16 (updated from 
Production Occupations, SOC: 51-0000)) with one instructor (at a wage 
of $41.34 (Median Wage for Training and Development Specialists, SOC: 
13-1151)) over an eight hour period. The estimated per-worker cost of 
initial training is $259.43 (= (8 x $24.16) + (8 x $41.34/5) + 
$2.12).\30\
---------------------------------------------------------------------------

    \30\ Note that wages are rounded and may not total exactly.
---------------------------------------------------------------------------

    Annual retraining of workers is also required by the new beryllium 
standards. OSHA estimated the same unit costs as for initial training, 
so retraining would require the same per-worker cost of $259.43.
    Finally, using these calculations, as well as accounting for 
industry-specific baseline compliance rates (from Section V.B. of this 
PEA), and based on a 25.7 percent new hire rate (BLS 2016a, annual 
manufacturing new hire rate),\31\ OSHA preliminarily estimates that the 
removal of the training requirements in this proposal would result in 
an annualized total cost savings of $778,371.\32\ The breakdown of 
these cost savings by NAICS code is presented in Table V-18 below.
---------------------------------------------------------------------------

    \31\ OSHA used the same hire rate for abrasive blasters in 
construction, judging that abrasive blasters in construction are 
more like skilled production workers (including abrasive blasters) 
in manufacturing and shipyard than day laborers in construction.
    \32\ The training cost savings are calculated in the cost 
spreadsheet in the `Rule' tab in column PX through QO. The 
annualized cost savings are calculated at 7, 3 and 0 percent in 
columns QJ through QO.

[[Page 29211]]



                                      Table V-18--Annualized Cost Savings of Program Requirements for Industries Affected by the Proposed Beryllium Standard by Sector and Six-Digit NAICS Industry
                                                                                            [In 2016 dollars using a 3 percent discount rate]
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                            Written      Protective                                             Total
                                                                             Rule         Exposure    Regulated    Beryllium      Medical      Medical      exposure   work  clothing    Hygiene                               program
         Application group/NAICS                    Industry           familiarization   assessment     areas      work areas  surveillance    removal      control     &  equipment    areas and   Housekeeping   Training      cost
                                                                                                                      ***                     provision       plan          ****        practices                              savings
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
238320..................................  Painting and Wall Covering             -$525   $2,037,910       $4,393           $0      $536,953     $179,409      $88,335              $0     $610,420      $337,085   $293,431   $4,087,412
                                           Contractors.
238990..................................  All Other Specialty Trade               -486    1,888,339        4,071            0       497,544      166,241       81,852               0      565,618       312,345    271,895    3,787,418
                                           Contractors.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Abrasive Blasting--Shipyards *
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611a.................................  Ship Building and Repairing             -332    1,430,277      252,463            0       376,852      125,915       60,706               0      393,508       236,578    205,940    3,081,907
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          Welding--Shipyards **
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611b.................................  Ship Building and Repairing               -3        2,994          172            0         2,762           36        2,139               0        3,684        15,327      7,106       34,217
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                  Total
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal...................  ...........................           -1,011    3,926,250        8,464            0     1,034,497      345,650      170,187               0    1,176,038       649,430    565,325    7,874,830
Shipyard Subtotal.......................  ...........................             -335    1,433,271      252,635            0       379,615      125,951       62,845               0      397,192       251,905    213,046    3,116,125
                                                                      ------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total, All Industries...................  ...........................           -1,346    5,359,520      261,099            0     1,414,112      471,601      233,032               0    1,573,230       901,335    778,371   10,990,954
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Totals may not sum due to rounding.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
*** The 2016 FEA also included a requirement for beryllium work areas. As that provision only applied to general industry, it is not relevant, nor discussed, in this proposal, and all references show a zero-dollar cost savings.


[[Page 29212]]

Total Annualized Cost Savings
    As shown in Table V-19, the total annualized cost savings of this 
proposal, using a 3 percent discount rate, is estimated to be about 
$11.0 million.

          Table V-19--Annualized Cost Savings to Industries Affected by the Proposed Beryllium Standard, by Sector and Six-Digit NAICS Industry
                                                    [In 2016 dollars using a 3 percent discount rate]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Engineering
               Application group/NAICS                             Industry                controls and     Respirator     Program costs    Total cost
                                                                                          work practices       costs          savings         savings
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Abrasive Blasting--Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
238320..............................................  Painting and Wall Covering                      $0              $0      $4,087,412      $4,087,412
                                                       Contractors.
238990..............................................  All Other Specialty Trade                        0               0       3,787,418       3,787,418
                                                       Contractors.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Abrasive Blasting--Shipyards
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611a.............................................  Ship Building and Repairing.......               0               0       3,081,907       3,081,907
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Welding--Shipyards
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611b.............................................  Ship Building and Repairing.......               0               0          34,217          34,217
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal...............................  ..................................               0               0       7,874,830       7,874,830
Shipyard Subtotal...................................  ..................................               0               0       3,116,125       3,116,125
                                                                                         ---------------------------------------------------------------
Total, All Industries...............................  ..................................               0               0      10,990,954      10,990,954
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.

Time Distribution of Costs
    OSHA analyzed the stream of (un-annualized) compliance costs for 
the first ten years after the rule would take effect. As shown in Table 
V-20, compliance cost savings are expected to decline from year 1 to 
year 2 by more than half after the initial set of capital and program 
start-up expenditures has been incurred. Costs are then essentially 
flat with relatively small variations for the following years.

                                        Table V-20--Distribution of Undiscounted Compliance Cost Savings by Year
                                                                     [2016 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Program cost                                                 Rule
                           Year                                 savings          Respirators        Engineering      familiarization         Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........................................................        $24,009,232                 $0                 $0           -$11,484        $23,997,748
2........................................................          8,173,911                  0                  0                  0          8,173,911
3........................................................          8,951,304                  0                  0                  0          8,951,304
4........................................................          8,332,508                  0                  0                  0          8,332,508
5........................................................          8,834,132                  0                  0                  0          8,834,132
6........................................................          8,418,670                  0                  0                  0          8,418,670
7........................................................          8,770,344                  0                  0                  0          8,770,344
8........................................................          8,466,731                  0                  0                  0          8,466,731
9........................................................          8,733,739                  0                  0                  0          8,733,739
10.......................................................          8,494,159                  0                  0                  0          8,494,159
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.

    Table V-21 breaks out total costs by each application group for the 
first ten years. Each application group follows the same pattern of a 
sharp decrease in compliance costs between years 1 and 2, and then 
remains relatively flat for the remaining years.

[[Page 29213]]



                                                       Table V-21--Total Undiscounted Cost Savings of the New Beryllium Standards by Year
                                                                                         [2016 Dollars]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Year
                      Application group                       ----------------------------------------------------------------------------------------------------------------------------------
                                                                     1            2            3            4            5            6            7            8            9            10
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction..............................   $17,383,709   $5,814,352   $6,382,594   $5,930,492   $6,296,968   $5,993,216   $6,250,595   $6,028,337   $6,223,603   $6,048,622
Abrasive Blasting--Shipyards.................................     6,547,501    2,331,174    2,538,176    2,373,155    2,506,984    2,396,331    2,489,764    2,409,125    2,480,258    2,416,188
Welding--Shipyards...........................................        66,538       28,385       30,533       28,861       30,180       29,123       29,985       29,268       29,877       29,348
                                                              ----------------------------------------------------------------------------------------------------------------------------------
    Total....................................................    23,997,748    8,173,911    8,951,304    8,332,508    8,834,132    8,418,670    8,770,344    8,466,731    8,733,739    8,494,159
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.

References
Domestic Product. February 26, 2016. Available at: http://www.bea.gov/iTable/iTable.cfm?reqid=9&step=3&isuri=1&903=13#reqid=9&step=3&isuri=1&904=2013&903=13&906=a&905=2015&910=x&911=1 (Accessed February 26, 2016). 
(Document ID 1970).
BLS, 2017a. Occupational Employment Statistics Survey--May 2016 
(Released March 31, 2017). Available at: http://www.bls.gov/oes/tables.htm (Accessed April 1, 2017).
BLS, 2017c. 2017 Employer Costs for Employee Compensation, U.S. 
Bureau of Labor Statistics. Available at: http://www.bls.gov/ncs/ect/.
Telephone Interview between Angie Lerch, Rental Coordinator, 
Satellite Shelters, Inc. and Robert Carney of ERG (Document ID 
0562).
OSHA, 2016. Cost of Compliance (Chapter V) of the Final Economic 
Analysis (``2016 FEA''; Document ID 2042).
OSHA, 2017. Excel Spreadsheets of Economic Costs, Impacts, and 
Benefits in Support of OSHA's Preliminary Economic Analysis (PEA) 
for the Proposed Deregulatory Action of Removing the Ancillary 
Revisions for the Maritime Sector and the Construction Sector from 
the Scope of the New Beryllium Standards: May 2017.

Appendix V-A

Summary of Annualized Costs by Entity Size Under Alternative Discount 
Rates

    In addition to using a 3 percent discount rate in its cost 
analysis, OSHA estimated compliance cost savings using alternative 
discount rates of 7 percent and 0 percent. Tables V-22 and V-23 
present--for 7 percent and 0 percent discount rates, respectively--
total annualized cost savings for affected employers by NAICS 
industry code and employment size class (all establishments, small 
entities, and very small entities).
    As shown in these tables, the choice of discount rate has only a 
minor effect on total annualized compliance costs--for example, 
annualized costs for all establishments increase from $11.0 million 
using a 3 percent discount rate to $11.5 million using a 7 percent 
discount rate, and decline to $10.8 million using a 0 percent 
discount rate.

V-22--Total Annualized Cost Savings, for Entities Affected by the New Beryllium Standards; Results Shown by Size
                              Category, by Sector, and by Six-Digit NAICS Industry
                                   [7 percent discount rate, in 2016 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                   Very small
       Application group/NAICS               Industry              All         Small entities     entities (<20
                                                             establishments     (SBA-defined)      employees)
----------------------------------------------------------------------------------------------------------------
                                         Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320...............................  Painting and Wall          $4,280,908        $3,605,768        $2,527,303
                                        Covering
                                        Contractors.
238990...............................  All Other Specialty         3,966,713         3,050,668         2,084,462
                                        Trade Contractors.
----------------------------------------------------------------------------------------------------------------
                                         Abrasive Blasting--Shipyards *
----------------------------------------------------------------------------------------------------------------
336611a..............................  Ship Building and           3,217,754         1,026,481           542,567
                                        Repairing.
----------------------------------------------------------------------------------------------------------------
                                              Welding--Shipyards **
----------------------------------------------------------------------------------------------------------------
336611b..............................  Ship Building and              35,196            11,599             6,601
                                        Repairing.
----------------------------------------------------------------------------------------------------------------
                                                      Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal................  ...................         8,247,620         6,656,436         4,611,766
Shipyard Subtotal....................  ...................         3,252,950         1,038,080           549,167
                                                           -----------------------------------------------------
Total, All Industries................  ...................        11,500,570         7,694,516         5,160,933
----------------------------------------------------------------------------------------------------------------
Notes: Figures in rows may not add to totals due to rounding.
``NA'' indicates not applicable because OSHA determined there were no affected entities in a particular industry
  of a particular size.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use
  mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may
  do both welding and abrasive blasting.


[[Page 29214]]


 Table V-23--Total Annualized Cost Savings, for Entities Affected by the New Beryllium Standards; Results Shown
                          by Size Category, by Sector, and by Six-Digit NAICS Industry
                                   [0 percent discount rate, in 2016 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                   Very small
       Application group/NAICS               Industry              All         Small entities     entities (<20
                                                             establishments     (SBA-defined)      employees)
----------------------------------------------------------------------------------------------------------------
                                         Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320...............................  Painting and Wall          $4,002,659        $3,375,763        $2,373,392
                                        Covering
                                        Contractors.
238990...............................  All Other Specialty         3,708,886         2,858,041         1,959,635
                                        Trade Contractors.
----------------------------------------------------------------------------------------------------------------
                                         Abrasive Blasting--Shipyards *
----------------------------------------------------------------------------------------------------------------
336611a..............................  Ship Building and           3,021,057           973,324           515,607
                                        Repairing.
----------------------------------------------------------------------------------------------------------------
                                              Welding--Shipyards **
----------------------------------------------------------------------------------------------------------------
336611b..............................  Ship Building and              33,823            11,135             6,336
                                        Repairing.
----------------------------------------------------------------------------------------------------------------
                                                      Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal................  ...................         7,711,545         6,233,805         4,333,027
Shipyard Subtotal....................  ...................         3,054,880           984,460           521,943
                                                           -----------------------------------------------------
Total, All Industries................  ...................        10,766,425         7,218,264         4,854,970
----------------------------------------------------------------------------------------------------------------
Notes: Figures in rows may not add to totals due to rounding.
``NA'' indicates not applicable because OSHA determined there were no affected entities in a particular industry
  of a particular size.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use
  mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may
  do both welding and abrasive blasting.

Appendix V-B

Summary of Annualized Cost Savings by Cost Type Under Alternative 
Discount Rates

    In addition to using a 3 percent discount rate in its cost 
analysis, OSHA estimated compliance cost savings using alternative 
discount rates of 7 percent and 0 percent. Tables V-24 and V-25 
present--for 7 percent and 0 percent discount rates, respectively--
total annualized cost savings for affected employers by NAICS 
industry code and type of cost savings.

       Table V-24--Annualized Compliance Cost Savings for Employers Affected by the New Beryllium Standards by Sector and Six-Digit NAICS Industry
                                                       [7 percent discount rate, in 2016 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Engineering
               Application group/NAICS                             Industry                controls and     Respirator     Program costs    Total costs
                                                                                          work practices       costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Abrasive Blasting--Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
238320..............................................  Painting and Wall Covering                      $0              $0      $4,280,908      $4,280,908
                                                       Contractors.
238990..............................................  All Other Specialty Trade                        0               0       3,966,713       3,966,713
                                                       Contractors.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Abrasive Blasting--Shipyards *
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611a.............................................  Ship Building and Repairing......                0               0       3,217,754       3,217,754
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Welding--Shipyards **
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611b.............................................  Ship Building and Repairing......                0               0          35,196          35,196
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal...............................  .................................                0               0       8,247,620       8,247,620
Shipyard Subtotal...................................  .................................                0               0       3,252,950       3,252,950
                                                                                        ----------------------------------------------------------------
Total, All Industries...............................  .................................                0               0      11,500,570      11,500,570
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the
  surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.


[[Page 29215]]


       Table V-25--Annualized Compliance Cost Savings for Employers Affected by the New Beryllium Standards by Sector and Six-Digit NAICS Industry
                                                       [0 percent discount rate, in 2016 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Engineering
               Application group/NAICS                             Industry                controls and     Respirator     Program costs    Total costs
                                                                                          work practices       costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Abrasive Blasting--Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
238320..............................................  Painting and Wall Covering                      $0              $0      $4,002,659      $4,002,659
                                                       Contractors.
238990..............................................  All Other Specialty Trade                        0               0       3,708,886       3,708,886
                                                       Contractors.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Abrasive Blasting--Shipyards *
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611a.............................................  Ship Building and Repairing......                0               0       3,021,057       3,021,057
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Welding--Shipyards **
--------------------------------------------------------------------------------------------------------------------------------------------------------
336611b.............................................  Ship Building and Repairing......                0               0          33,823          33,823
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal...............................  .................................                0               0       7,711,545       7,711,545
Shipyard Subtotal...................................  .................................                0               0       3,054,880       3,054,880
                                                                                        ----------------------------------------------------------------
Total, All Industries...............................  .................................                0               0      10,766,425      10,766,425
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Figures in rows may not add to totals due to rounding.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the
  surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.

D. Foregone Benefits

Estimated Foregone Benefits and Net Benefits by Construction and 
Shipyards for the Final Standards for Occupational Exposure to 
Beryllium
    In the 2016 FEA, OSHA estimated that, in addition to other health 
benefits, the rule would, at the final steady state after a gradual 45-
year phase in period, prevent 86 cases of fatal Chronic Beryllium 
Disease, 46 cases of non-fatal CBD morbidity, and 4 fatal cases of lung 
cancer annually, the large majority of these cases falling within 
General Industry (see FEA Chapter VII, Benefits and Net Benefits in 
Document ID 2042). OSHA estimated the net benefits for the rule as a 
whole would be worth $487 million ($561 million in benefits minus $74 
million in costs). These estimates were midpoints of a very wide range 
of estimates. Factors contributing to the range included varying risk 
models, varying approaches to occupational tenure, and widely varying 
estimates of the effects of ancillary provisions. The construction and 
shipyard sectors were only a small fraction of this total. 
Specifically, as indicated in Table VIII-12 in the preamble to the 
January 9, 2017 final rule (82 FR 2613), the Agency estimated, using 
the mid-point of a range of benefits, that the rule would prevent 4 
cases of fatal and 2 cases of non-fatal CBD annually in these two 
sectors. Almost all of these estimated benefits were the result of the 
ancillary provisions. Given uncertainties about possible benefits from 
lowering the PEL, the FEA attributed no benefits to implementing the 
PEL alone for abrasive blasting operations.\33\ These sectors accounted 
for an estimated $11.9 million in costs, or 16.1 percent of the costs 
of the final rule, and an estimated $27.6 million in benefits, or 4.9 
percent of the total benefits of the final rule. Without the benefits 
derived from the construction and shipyards sectors, the net benefit of 
the rulemaking was reduced by $15.7 million, or 3.2 percent of the 
total net benefits of the rule.
---------------------------------------------------------------------------

    \33\ See footnote 3 on p. VII-10 of Chapter VII, Benefits, for 
the FEA for the final beryllium standards. This footnote states: 
``Given uncertainties about the level of existing respirator use 
among other workers involved in abrasive blasting operations, OSHA 
conservatively assigned no benefits related to a reduction in their 
airborne exposure to beryllium.''
---------------------------------------------------------------------------

    This distribution was due both to the much larger number of workers 
exposed in general industry, compared to construction and shipyards, 
and uncertainties about how many residual benefits would remain in 
abrasive blasting operations after existing regulatory requirements 
were taken into account. In short, the net benefits attributable to 
these sectors were both small and uncertain.
Review of FEA Benefits Analysis
    In the FEA, OSHA expressed uncertainty about whether there would be 
benefits from reduced airborne exposure related to abrasive blasting 
operations in both shipyards and construction, as well as a limited 
number of welders in the shipyards sector.\34\ OSHA noted that abrasive 
blasting operators in construction are already required to wear 
respirators and assumed that additional engineering and work-practice 
controls for the operators were infeasible. As explained in this 
proposal, abrasive blasters in shipyards are often required to wear 
respirators under the requirements of the Mechanical paint removers 
standard, 29 CFR 1915.34. However, these standards do not necessarily 
cover pot tenders or clean-up workers, and may not have required some 
pot tenders or clean-up workers exposed above the revised PEL of 0.2 
[mu]g/m\3\ to wear respirators. The exposure data show some pot tenders 
or clean-up workers are exposed above the revised PEL, but the data do 
not show whether any of these pot tenders or clean-up workers exposed 
above the revised PEL were wearing respirators. This uncertainty about 
baseline respirator use led OSHA to take a conservative approach in the 
2016 FEA: In the benefits analysis, OSHA assumed no new benefits from 
the PEL requirements (thereby potentially underestimating benefits 
related to the lower PEL), but in the cost analysis, to err on the side 
of overestimating costs, OSHA assumed

[[Page 29216]]

that only 75 percent of abrasive blaster helpers, including cleanup 
workers, were already provided with the respiratory protection required 
by the new standard.
---------------------------------------------------------------------------

    \34\ In the 2016 FEA Industry Profile, OSHA estimated that there 
were 26 welders in shipyards who would be affected by the final 
rule.
---------------------------------------------------------------------------

    Welders in shipyards also have some exposures above the PEL. 
However, employers are already required to provide welders with 
ventilation and air-line respirators under 29 CFR 1915.51. 
Nevertheless, in the cost section of the 2016 FEA, OSHA again provided 
a conservative estimate for the cost of one new respirator and added a 
small increment to benefits as result of the new PEL.
Estimate of Foregone Benefits
    As explained in the Summary and Explanation of this preamble, OSHA 
has decided to retain the 0.2 [mu]g/m\3\ PEL portion of the current 
standards for construction and maritime. Therefore, the key question 
with respect to the magnitude of the benefits foregone for this rule is 
the effect of the ancillary provisions (over and above their effect in 
ensuring compliance with the PEL) in reducing illnesses and fatalities.
    In the FEA, the Agency attributed some reduction in disease to the 
standards' new lower PEL and the standards' ancillary provisions. 
However, as explained in the FEA, there was uncertainty of the efficacy 
of the ancillary requirements across different work environments. For 
General Industry, the efficacy was estimated to range from no effect to 
reducing as much as 90 percent of the CBD cases not averted by the new 
PEL. The FEA referenced several case studies from general industry 
where benefits at the high end of this scale had come to pass 
empirically, on top of whatever engineering controls had been 
implemented. These benefits were attributed most specifically to the 
introduction of a combination of dermal and respiratory PPE, as well as 
more aggressive housekeeping.
    Throughout the rulemaking process, OSHA has been aware that the 
situations in shipyards and construction may be substantially different 
from those in general industry. Baseline usage of respirators and PPE 
is far higher in construction and shipyards. While the general industry 
``model'' for the efficacy of the ancillary provisions may apply 
relatively well at other places in general industry (since it was based 
largely on the experience at Materion facilities), it might be less 
effective for construction and shipyards. As indicated in the FEA, most 
workers in construction and shipyard abrasive blasting and shipyard 
welding operations are already required by other standards to wear 
respirators, and it is unclear how many of the abrasive blasting 
workers would benefit from additional dermal protection requirements. 
As a result, compared to the earlier (2015) PEA, the Agency estimated a 
much lower range of benefits to the ancillary provisions for 
construction and shipyards. Between the 2015 PEA and the FEA, the 
Agency judged that the benefits estimated for abrasive blasting should 
be even lower than in the 2015 PEA (which had estimated them at half 
that of general industry, or a range of 0 to 45 percent), and halved 
them again to 0 to 22.5 percent in the FEA. The high end of this range 
was simply an estimate of 25 percent of the range used in general 
industry, as a way of accounting for the extensive use of respirators 
and PPE in these two sectors.
    Upon further review, OSHA believes that this estimate of 0 to 22.5 
percent is too high. While the FEA estimates recognized a high baseline 
level of compliance, the benefit estimates did not account for 
compliance with PPE and housekeeping provisions by shipyard welders and 
construction and shipyard abrasive blasting workers. As a result, based 
on OSHA's preliminary revised baseline compliance estimates, there 
should have been limited to no benefits in terms of reduced cases of 
CBD attributed to the ancillary provisions for the construction and 
shipyards standards in the January 2017 rule. OSHA also, upon review, 
found that shipyard welders already use extensive PPE, and thus, based 
on OSHA's preliminary revised baseline compliance estimates, should 
have had more limited benefits attributable to the ancillary provisions 
than originally estimated in the January 2017 rule. This issue of 
baseline compliance, along with the estimates underlying OSHA's 
proposed revised baseline compliance rates, was discussed in section 
V.B, Profile of Affected Application Groups, Establishments, and 
Employees, of this preamble. Based on the proposed revised compliance 
rates discussed there, OSHA has therefore preliminarily concluded that 
abrasive blasting workers in construction and shipyards and welders in 
shipyards will have limited to no foregone benefits as a result of 
withdrawing the ancillary provisions.
    Using the proposed revised baseline compliance rates in section V.B 
of this PEA would also lower the estimate of benefits for the 
construction and shipyard sectors by lowering the baseline estimate of 
illnesses and fatalities. (Such an issue was not relevant for general 
industry because there were not such high levels of baseline 
compliance.)
Conclusions
    For the reasons discussed above, OSHA has preliminarily concluded 
that there are limited to no foregone benefits (due to reducing the 
number of cases of CBD) as a result of revoking the ancillary 
provisions of the beryllium final standards for Construction and 
Shipyards because based on the proposed revised baseline compliance 
estimates presented in section V.B. of this PEA, the benefits 
attributed to the ancillary provisions in those sectors were 
overestimated. The Agency continues to believe that the new PEL will 
ensure that workers receive additional protection from exposure to 
beryllium.\35\
---------------------------------------------------------------------------

    \35\ The FEA attributed benefits to lowering the PEL for welders 
in shipyards. While there are also benefits among abrasive blasting 
pot tenders and cleanup workers for lowering the PEL, in order to 
avoid overestimating benefits in the FEA, OSHA took the conservative 
approach of estimating no benefits for these workers due to 
uncertainty about the extent of baseline respirator use. The new 
lower PEL may also result in more protective respirators being used 
in abrasive blasting operations, and will protect workers in the 
event that respirators fail, although this is difficult to quantify.
---------------------------------------------------------------------------

VI. Economic Feasibility Analysis and Regulatory Flexibility 
Certification Economic Feasibility Analysis

Shipyards

    OSHA is proposing to revoke the ancillary provisions in shipyards 
and amend the Z Table with the new lower PEL and STEL. OSHA 
preliminarily concludes that the proposed removal of these provisions 
for shipyards from the new beryllium standards would reduce costs for 
shipyard employers. Because these revisions do not create new 
requirements, OSHA has preliminarily determined that neither new costs 
nor compliance burdens would be incurred by shipyard employers. Instead 
there would be cost savings as compared to the January 9, 2017 final 
standard for occupational exposure to beryllium in shipyards.

Construction

    OSHA is proposing to revoke the ancillary provisions in 
construction and amend Appendix A of 1926.55 with the new lower PEL and 
STEL. OSHA preliminarily concludes that the proposed removal of these 
provisions for the construction sector would reduce costs for 
construction employers. Because these revisions do not create new 
requirements, OSHA has preliminarily determined that neither new costs 
nor compliance burdens would be incurred by construction

[[Page 29217]]

employers. Instead there would be cost savings as compared to the 
January 9, 2017 final standard for occupational exposure to beryllium 
in construction.

Economic Feasibility Determination

    Based on the preceding discussion, it is clear that no shipyard or 
construction employer would incur new costs as a result of this 
proposal beyond the minimal cost of familiarization. Because there are 
no new requirements, OSHA preliminarily concludes that the proposed 
rule is economically feasible. The Agency welcomes comment on this 
preliminary finding.

Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq. (as amended), OSHA has examined the regulatory requirements of the 
proposal for shipyards and construction to determine whether they would 
have a significant economic impact on a substantial number of small 
entities. The proposal would remove ancillary provisions for shipyards 
and construction from the new beryllium rule, resulting in a reduction 
of overall costs. Furthermore, because OSHA is proposing no new 
requirements, the Agency believes that this proposal would not impose 
any costs on small entities covered by this proposal. The 2016 FEA 
analysis showed that the costs, and thus the cost savings, would not 
represent a significant impact on a substantial numbers of small 
entities and, therefore, the cost savings in this proposal would not 
have a significant impact on the construction and shipyard subset of 
those small entities. The Agency certifies that the proposal would not 
have a significant economic impact on a substantial number of small 
entities.

Executive Order 13771: Reducing Regulation and Controlling Regulatory 
Costs

    Consistent with Executive Order 13771 (82 FR 9339, February 3, 
2017) we have estimated the total annualized cost savings of this 
proposed rule, using a 3 percent discount rate, to be about $11.0 
million, or using a 7 percent discount rate, to be about $11.5 million. 
Therefore, this proposed rule, if finalized, is expected to be an 
Executive Order 13771 deregulatory action.

VII. OMB Review Under the Paperwork Reduction Act of 1995

A. Overview

    The current beryllium standards for occupational exposure to 
beryllium--general industry (29 CFR 1910.1024), construction (29 CFR 
1926.1124), and shipyard (29 CFR 1915.1024)--contain collection of 
information (paperwork) requirements that have been approved by the 
Office of Management and Budget (OMB) under the Paperwork Reduction Act 
of 1995 (PRA), and approved under OMB Control number 1218-0267. The 
proposal would revoke the beryllium standards, and their collections of 
information, in the shipyard and construction sectors, while retaining 
the new lower permissible exposure limits. The PRA defines ``collection 
of information'' to mean ``the obtaining, causing to be obtained, 
soliciting, or requiring the disclosure to third parties or the public, 
of facts or opinions by or for an agency, regardless of form or 
format'' (44 U.S.C. 3502(3)(A)).
    Under the PRA, a Federal agency cannot conduct or sponsor a 
collection of information unless OMB approves it, and the agency 
displays a currently valid OMB control number (44 U.S.C. 3507). Also, 
notwithstanding any other provision of law, no employer shall be 
subject to penalty for failing to comply with a collection of 
information if the collection of information does not display a 
currently valid OMB control number (44 U.S.C. 3512). The major 
collections of information found in the standards are listed below.

B. Solicitation of Comments

    OSHA prepared and submitted a revised Information Collection 
Request (ICR) to OMB removing the Beryllium Shipyard and Construction 
collections of information from the existing OMB approved paperwork 
package in accordance with 44 U.S.C. 3507(d). The Agency solicits 
comments on the removal of the collection of information requirements 
and reduction in estimated burden hours associated with these 
requirements, including comments on the following items:
     Whether collections of information are necessary for the 
proper performance of the Agency's functions, including whether the 
information is useful;
     The accuracy of OSHA's estimate of the burden (time and 
cost) of the collections of information, including the validity of the 
methodology and assumptions used;
     The quality, utility, and clarity of the information 
collected; and
     Ways to minimize the compliance burden on employers, for 
example, by using automated or other technological techniques for 
collecting and transmitting information (78 FR 56438).

C. Proposed Information Collection Requirements

    As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the 
following paragraphs provide information about this ICR.
    1. Title: The Occupational Exposure to Beryllium.
    2. Description of the ICR: The proposal would remove both the 
Shipyard and Construction Standards from the currently approved 
Beryllium ICR.
    3. Brief Summary of the Information Collection Requirements
    The proposed ICR does not contain the collection of information 
requirements in the construction and shipyard industries. The proposal 
to remove standards for construction and shipyards is based on the 
Agency's reconsideration of the need for ancillary provisions in those 
sectors.
    Below is a summary of the collection of information requirements 
identified in the currently approved Beryllium Information Collection. 
In this proposed rulemaking, the Agency is proposing to remove the 
construction and shipyard standards and retain the general industry 
standard in the Beryllium rule. A copy of this ICR is available to the 
public at: http://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1218-0267.

------------------------------------------------------------------------
  Retaining collections of        Removing collections of information
         information         -------------------------------------------
-----------------------------                           Construction
      General industry          Maritime industry         industry
------------------------------------------------------------------------
Sec.   1910.1024(d)(2)        Sec.                  Sec.
 Performance Option.           1915.1024(d)(2)       1926.1124(d)(2)
                               Performance Option.   Performance Option.
Sec.   1910.1024(d)(3)(i),    Sec.                  Sec.
 (ii), & (iii) Scheduled       1915.1024(d)(3)(i),   1926.1124(d)(3)(i),
 Monitoring Options.           (ii), & (iii)         (ii), & (iii)
                               Scheduled             Scheduled
                               Monitoring Options.   Monitoring Options.
Sec.   1910.1024(d)(3)(iv),   Sec.                  Sec.
 (v), & (vi) Scheduled         1915.1024(d)(3)(iv)   1926.1124(d)(3)(iv)
 Monitoring Options.           , (v), & (vi)         , (v), & (vi)
                               Scheduled             Scheduled
                               Monitoring Options.   Monitoring Options.
Sec.   1910.1024(d)(4)        Sec.                  Sec.
 Reassessment of Exposure.     1915.1024(d)(4)       1926.1124(d)(4)
                               Reassessment of       Reassessment of
                               Exposure.             Exposure.

[[Page 29218]]

 
Sec.   1910.1024(d)(6)(i) &   Sec.                  Sec.
 (ii) Employee Notification    1915.1024(d)(6)(i)    1926.1124(d)(6)(i)
 of Assessment Results.        & (ii) Employee       & (ii) Employee
                               Notification of       Notification of
                               Assessment Results.   Assessment Results.
Sec.   1910.1024(e)(2)(i) &   Sec.                  Sec.
 (ii) Demarcation of           1915.1024(e)(2)       1926.1124(e)(2)
 Beryllium Work Area and       Regulated Areas--     Competent Person.
 Regulated Areas--.            Demarcation.
Sec.   1910.1024(f)(1)(i),    Sec.                  Sec.
 (ii), & (iii) Methods of      1915.1024(f)(1)(i),   1926.1124(f)(1)(i),
 Compliance--Written           (ii), & (iii)         (ii), & (iii)
 Exposure Control Plan.        Methods of            Methods of
                               Compliance--Written   Compliance--Written
                               Exposure Control      Exposure Control
                               Plan.                 Plan.
Sec.   1910.1024(g)(2)        Sec.   1915.1024(g)   Sec.   1926.1124(g)
 Respiratory Protection        Respiratory           Respiratory
 Program.                      Protection Program.   Protection Program.
Sec.   1910.1024(h)(2)(v)     Sec.                  Sec.
 Personal Protective           1915.1024(h)(2)(v)    1926.1124(h)(2)(v)
 Clothing and Equipment--      Personal Protective   Personal Protective
 Removal and Storage.          Clothing and          Clothing and
                               Equipment--Removal    Equipment--Removal
                               and Storage.          and Storage.
Sec.   1910.1024(h)(3)(iii)   Sec.                  Sec.
 Personal Protective           1915.1024(h)(3)(iii   1926.1124(h)(3)(iii
 Clothing and Equipment--      ) Personal            ) Personal
 Cleaning and Replacement.     Protective Clothing   Protective Clothing
                               and Equipment--       and Equipment--
                               Cleaning and          Cleaning and
                               Replacement.          Replacement.
Sec.   1910.1024(j)(3)(i) &   Sec.                  Sec.
 (ii) Housekeeping--Disposal.  1915.1024(j)(3)       1926.1124(j)(3)
                               Housekeeping--Dispo   Housekeeping--Dispo
                               sal.                  sal.
Sec.   1910.1024(k)(1), (2),  Sec.                  Sec.
 & (3) Medical Surveillance.   1915.1024(k)(1),      1926.1124(k)(1),
                               (2), & (3) Medical    (2), & (3) Medical
                               Surveillance.         Surveillance.
Sec.   1910.1024(k)(4)        Sec.                  Sec.
 Medical Surveillance--        1915.1024(k)(4)       1926.1124(k)(4)
 Information Provided to the   Medical               Medical
 PLHCP.                        Surveillance--Infor   Surveillance--Infor
                               mation Provided to    mation Provided to
                               the PLHCP.            the PLHCP.
Sec.   1910.1024(k)(5)(i),    Sec.                  Sec.
 (ii), & (iii) Medical         1915.1024(k)(5)(i),   1926.1124(k)(5)(i),
 Surveillance--Licensed        (ii), & (iii)         (ii), & (iii)
 Physician's Written Medical   Medical               Medical
 Report for the Employee.      Surveillance--Licen   Surveillance--Licen
                               sed Physician's       sed Physician's
                               Written Medical       Written Medical
                               Report for the        Report for the
                               Employee.             Employee.
Sec.   1910.1024(k)(6)        Sec.                  Sec.
 Medical Surveillance--        1915.1024(k)(6)       1926.1124(k)(6)
 Licensed Physician's          Medical               Medical
 Written Medical Opinion for   Surveillance--Licen   Surveillance--Licen
 the Employer.                 sed Physician's       sed Physician's
                               Written Medical       Written Medical
                               Opinion for the       Opinion for the
                               Employer.             Employer.
Sec.   1910.1024(k)(7)        Sec.                  Sec.
 Medical Surveillance--        1915.1024(k)(7)       1926.1124(k)(7)
 Referral to the CBD           Medical               Medical
 Diagnostic Center.            Surveillance--Refer   Surveillance--Refer
                               ral to the CBD        ral to the CBD
                               Diagnostic Center.    Diagnostic Center.
Sec.   1910.1024(l)(1)        Sec.                  Sec.
 Medical Removal.              1915.1024(l)(1)       1926.1124(l)(1)
                               Medical Removal.      Medical Removal.
Sec.   1910.1024(m)(1)        Sec.                  Sec.
 Communication of hazards.     1915.1024(m)(1)       1926.1124(m)(1)
                               Communication of      Communication of
                               hazards.              hazards.
Sec.   1910.1024(m)(2)        Sec.                  N/A.
 Warning Signs.                1915.1024(m)(2)
                               Warning Signs.
Sec.   1910.1024(m)(3)        Sec.                  Sec.
 Warning labels.               1915.1024(m)(3)       1926.1124(m)(3)
                               Warning labels.       Warning labels.
Sec.   1910.1024(m)(4)(iv)    Sec.                  Sec.
 Employee Information.         1915.1024(m)(4)(iv)   1926.1124(m)(4)(iv)
                               Employee              Employee
                               Information.          Information.
Sec.   1910.1024(n)(1)(i),    Sec.                  Sec.
 (ii), & (iii)                 1915.1024(n)(1)(i),   1926.1124(n)(1)(i),
 Recordkeeping--Air            (ii), & (iii)         (ii), & (iii)
 Monitoring Data.              Recordkeeping--Air    Recordkeeping--Air
                               Monitoring Data.      Monitoring Data.
Sec.   1910.1024(n)(2)(i),    Sec.                  Sec.
 (ii), & (iii)                 1915.1024(n)(2)(i),   1926.1124(n)(2)(i),
 Recordkeeping--Objective      (ii), & (iii)         (ii), & (iii)
 Data.                         Recordkeeping--Obje   Recordkeeping--Obje
                               ctive Data.           ctive Data.
Sec.   1910.1024(n)(3)(i),    Sec.                  Sec.
 (ii), & (iii)                 1915.1024(n)(3)(i),   1926.1124(n)(3)(i),
 Recordkeeping--Medical        (ii), & (iii)         (ii), & (iii)
 Surveillance.                 Recordkeeping--Medi   Recordkeeping--Medi
                               cal Surveillance.     cal Surveillance.
Sec.   1910.1024(n)(4)(i) &   Sec.                  Sec.
 (ii) Recordkeeping--          1915.1024(n)(4)(i)    1926.1124(n)(4)(i)
 Training.                     & (ii)                & (ii)
                               Recordkeeping--Trai   Recordkeeping--Trai
                               ning.                 ning.
------------------------------------------------------------------------

    1. Title: Beryllium (29 CFR 1910.1024).
    2. Type of Review: Revision.
    3. OMB Control Number: 1218-0267.
    4. Affected Public: Business or other for-profit. This standard 
would only apply to employers in general industry.
    5. Number of Respondents: 4,008 employers.
    6. Frequency of Responses: On occasion; quarterly, semi-annually, 
annual; biannual.
    7. Number of Responses: 142,679.
    8. Average Time per Response: Varies from 5 minutes (.08 hours) for 
a clerical worker to generate and maintain an employee medical record, 
to more than 8 hours for a human resource manager to develop and 
implement a written exposure control plan.
    9. Estimated Annual Total Burden Hours: 83,787. This is a reduction 
of 47,791 hours from the existing annualized 131,578 burden hours.
    10. Estimated Annual Cost (capital-operation and maintenance): 
$20,584,209. This is an annualized cost savings of $9,980,781 from the 
existing annualized cost of $30,564,990.

D. Submitting Comments

    Members of the public who wish to comment on the revisions to the 
paperwork requirements in this proposal must send their written 
comments to the Office of Information and Regulatory Affairs, Attn: OMB 
Desk Officer for the Department of Labor, OSHA (RIN-1218 -AB76), Office 
of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 
202-395-6929/Fax: 202-395-6881 (these are not toll-free numbers), 
email: OIRA_submission@omb.eop.gov. The Agency encourages commenters 
also to submit their comments on these paperwork requirements to the 
rulemaking docket (Docket Number OSHA-H005C-2006-0870), along with 
their comments on other parts of the proposed rule. For instructions on 
submitting these comments to the rulemaking docket, see the sections of 
this Federal Register notice titled DATES and ADDRESSES. Comments 
submitted in response to this notice are public records; therefore, 
OSHA cautions commenters about submitting personal information such as 
Social Security numbers and dates of birth.

E. Docket and Inquiries

    To access the docket to read or download comments and other 
materials related to this paperwork determination, including the 
complete Information Collection Request (ICR) (containing the 
Supporting Statement with attachments describing the paperwork 
determinations in detail) use the procedures described under the 
section of this notice titled ADDRESSES.

[[Page 29219]]

You also may obtain an electronic copy of the complete ICR by visiting 
the Web page at: http://www.reginfo.gov/public/do/PRAMain, scroll under 
``Currently Under Review'' to ``Department of Labor (DOL)'' to view all 
of the DOL's ICRs, including those ICRs submitted for proposed 
rulemakings. To make inquiries, or to request other information, 
contact Mr. Todd Owen, Directorate of Standards and Guidance, OSHA, 
Room N-3609, U.S. Department of Labor, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone (202) 693-2222.

VIII. Federalism

    OSHA reviewed this proposed beryllium rule according to the most 
recent Executive Order (``E.O.'') on Federalism, E.O. 13132, 64 FR 
43255 (Aug. 10, 1999). The E.O. requires that Federal agencies, to the 
extent possible, refrain from limiting State policy options, consult 
with States before taking actions that would restrict States' policy 
options, and take such actions only when clear constitutional authority 
exists and the problem is of national scope. The E.O. allows Federal 
agencies to preempt State law only with the expressed consent of 
Congress. In such cases, Federal agencies must limit preemption of 
State law to the extent possible.
    Under Section 18 of the Occupational Safety and Health Act (the 
``Act'' or ``OSH Act''), 29 U.S.C. 667, Congress expressly provides 
that States may adopt, with Federal approval, a plan for the 
development and enforcement of occupational safety and health 
standards. OSHA refers to States that obtain Federal approval for such 
plans 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 their own 
occupational safety and health standards.
    This proposed rule would revoke the ancillary provisions for the 
construction and shipyard industries, but retain the recently revised 
PEL of 0.2 [mu]g/m\3\ and STEL of 2.0 [mu]g/m\3\ for those industries. 
This would provide more flexibility to State-Plan States to develop and 
enforce their own standards, provided those standards require 
workplaces to be at least as safe and healthful as federal OSHA 
standards. Additionally, standards promulgated under the OSH Act do not 
apply to any worker whose employer is a state or local government. 29 
U.S.C. 652(5).
    This proposed rule 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 rule 
would limit State policy options in the same manner as every standard 
promulgated by the Agency. In States with OSHA-approved State plans, 
this rulemaking would not limit State policy options to adopt stricter 
standards.

IX. State-Plan States

    When Federal OSHA promulgates a new standard or a more stringent 
amendment to an existing standard, the States and U.S. territories with 
their own OSHA-approved occupational safety and health plans (``State-
Plan States'') must revise their standards to reflect the new standard 
or amendment. The State standard must be at least as effective as the 
Federal standard or amendment, and must be promulgated within 6 months 
of the publication date of the final Federal rule. 29 CFR 1953.5(a). 
Currently, there are 28 State-Plan States.
    Of the 28 States and territories with OSHA-approved State plans, 22 
cover public and private-sector employees: 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. The 
remaining six states and territories cover only public-sector 
employees: Connecticut, Illinois, New Jersey, Maine, New York, and the 
Virgin Islands.
    This rule, if adopted as proposed, would eliminate the ancillary 
provisions for the construction and shipyard industries, but retain the 
recently revised PELs of 0.2 [mu]g/m\3\ as an 8-hour time-weighted 
average and 2.0 [mu]g/m\3\ as a 15 minute short-term exposure limit for 
those industries. It would leave the beryllium standard for general 
industry intact. Therefore, no new State standards would be required 
beyond the revision of the PELs and those already required by the 
promulgation of the beryllium standard for general industry.
    If the proposal is adopted, State-Plan states may nonetheless 
choose to conform to the January 9, 2017 construction and shipyards 
ancillary provisions, although they would no longer be required to do 
so.

X. Unfunded Mandates Reform Act

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``UMRA''), 2 U.S.C. 1532, an agency must prepare a written 
``qualitative and quantitative assessment'' of any regulation creating 
a mandate that ``may result in the expenditure by the State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more (adjusted annually for inflation)'' in any one 
year before promulgating a final rule. OSHA's rule does not place a 
mandate on State or local governments, for purposes of the UMRA, 
because OSHA cannot enforce its regulations or standards on State or 
local governments. 29 U.S.C. 652(5). Under voluntary agreement with 
OSHA, some States require public sector entities to comply with State 
standards, and these agreements specify that these State standards must 
be at least as protective as OSHA standards. The OSH Act does not cover 
tribal governments in the performance of traditional governmental 
functions, though it does cover tribal governments when they engage in 
commercial activity. However, this proposed rule will not require 
tribal governments to expend, in the aggregate, $100,000,000 or more in 
any one year for their commercial activities. Thus, this proposed rule 
does not trigger the requirements of UMRA based on its impact on State, 
local, or tribal governments.
    Based on the analysis presented in the Preliminary Economic 
Analysis (see Section V above), OSHA concludes that this proposed 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. As noted below, OSHA also reviewed this proposed rule in 
accordance with E.O. 13175 on Consultation and Coordination with Indian 
Tribal Governments, 65 FR 67249 (Nov. 9, 2000), and determined that, if 
adopted, it would not have ``tribal implications'' as defined in that 
Order.

XI. Protecting Children From Environmental Health and Safety Risks

    E.O. 13045, 66 FR 19931 (Apr. 23, 2003), requires that Federal 
agencies submitting covered regulatory actions to OMB's Office of 
Information and Regulatory Affairs (``OIRA'') for review pursuant to 
E.O. 12866, 58 FR 51735 (Oct. 4, 1993), must provide OIRA with (1) an 
evaluation of the environmental health or safety effects that the 
planned regulation may have on children, and (2) an explanation of why 
the planned

[[Page 29220]]

regulation is preferable to other potentially effective and reasonably 
feasible alternatives considered by the agency. E.O. 13045 defines 
``covered regulatory actions'' as rules that may (1) be economically 
significant under E.O. 12866 (i.e., a rulemaking that has an annual 
effect on the economy of $100 million or more, or would adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities), and (2) 
concern an environmental health risk or safety risk that an agency has 
reason to believe may disproportionately affect children. In this 
context, the term ``environmental health risks and safety risks'' means 
risks to health or safety that are attributable to products or 
substances that children are likely to come in contact with or ingest 
(e.g., through air, food, water, soil, or product use).
    This proposed beryllium rule would not be economically significant 
under E.O. 12866 (see Section V of this preamble). In addition, OSHA is 
not aware of any studies showing that exposure to beryllium in 
workplaces disproportionately affects children, who typically are not 
allowed in workplaces where such exposure exists. OSHA is also not 
aware that there are a significant number of employees under 18 years 
of age who may be exposed to beryllium, or that employees of that age 
are disproportionately affected by such exposure. OSHA also does not 
believe that beryllium particles present in abrasive blasting media or 
welding fume residue that might be brought home on work clothing, 
shoes, and hair would result in exposures at or near the action level 
as defined in the January 9, 2017 standards. Therefore, OSHA believes 
that this proposed beryllium rule would not constitute a covered 
regulatory action as defined by E.O. 13045.

XII. Environmental Impacts

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

XIII. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this proposed rule in accordance with E.O. 13175 on 
Consultation and Coordination with Indian Tribal Governments, 65 FR 
67249 (Nov. 9, 2000), and determined that it does not have ``tribal 
implications'' as defined in that order. The OSH Act does not cover 
tribal governments in the performance of traditional governmental 
functions, so the proposal will not have substantial direct effects on 
one or more Indian tribes in their sovereign capacity, 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. On the other hand, employees in 
commercial businesses owned by tribes or tribal members will receive 
the same protections and benefits of the standard as all other covered 
employees.

XIV. Public Participation

    OSHA encourages members of the public to participate in this 
rulemaking by submitting comments on the proposal.
    Written Comments. OSHA invites interested persons to submit written 
data, views, and arguments concerning this proposal. When submitting 
comments, persons must follow the procedures specified above in the 
sections titled DATES and ADDRESSES.
    Informal public hearings. The Agency will schedule an informal 
public hearing on the proposed rule if requested during the comment 
period.

XV. Summary and Explanation of the Proposal

    This section of the preamble explains the changes that OSHA 
proposes to make to the beryllium standards, including Agency's 
explanation of the reasoning behind the proposed changes.
    As noted in the January 9, 2017 final rule, OSHA has evidence that 
beryllium exposure above 0.2 [mu]g/m\3\ as an 8-hour time-weighted 
average can occur in abrasive blasting in construction, abrasive 
blasting in shipyards, and welding in shipyards. OSHA determined that 
exposures at that level create a significant risk of material 
impairment of health, including developing CBD and lung cancer. These 
operations, however, are already regulated by other OSHA construction 
and shipyards standards. OSHA requested, but did not receive, 
additional data during the previous rulemaking about exposures in these 
operations and about protections provided by other OSHA standards. In 
light of the limited information regarding exposures and the potential 
that other OSHA standards may offer protection from beryllium 
exposures, OSHA is proposing, as an alternative to the comprehensive 
January 9, 2017 final rule, to revoke the ancillary provisions for 
construction and the ancillary provisions for shipyards while retaining 
the new lower PELs for these sectors. This proposal allows OSHA to open 
the rulemaking record to receive more information about exposures, 
controls, and procedures in operations within the construction and 
shipyard sectors.
    In addition, this NPRM provides stakeholders with an additional 
opportunity to offer comments on the January 9, 2017 construction and 
shipyard standards, including comments on the regulatory text and 
whether the ancillary provisions are necessary in these sectors.

Significant Risk in Construction and Shipyards

A. Summary of Relevant Exposure Data

1. Abrasive Blasting
    Despite the low concentrations of beryllium in the blast material, 
airborne concentrations of beryllium have been measured above the 
previous TWA PEL of 2 [mu]g/m\3\ when blast material containing 
beryllium is used as intended. In OSHA's exposure profile in the 
January 9, 2017 rule, summarized above in Section IV, 56 percent of 
abrasive blasting operators had beryllium exposures at or below 0.2 
[mu]g/m\3\, and 19 percent exceeded 2.0 [mu]g/m\3\. For pot tenders, 
all samples in the exposure profile were less than or equal to 0.2 
[mu]g/m\3\. Of those samples, 75 percent were non-detectable for 
beryllium. For cleanup workers, 94 percent of samples were less than or 
equal to 0.2 [mu]g/m\3\.
    Eighty-three percent of the abrasive media cleanup worker samples 
were non-detectable for beryllium. One cleanup worker had an 8-hour TWA 
sample result of 1.1 [micro]g/m\3\; however, it is likely that this 
sample result was elevated due to nearby abrasive blasting. Another 
cleanup worker had a sample result of 7.4 [micro]g/m\3\ as an 8-hour 
TWA, but this appeared to be associated with the use of compressed air 
for cleaning in conjunction with nearby abrasive blasting. The 
available data in the previous rulemaking record suggested that most 
pot tenders and cleanup workers have low beryllium exposures. The 
median exposure levels for both of these job categories were less than 
0.1 [micro]g/m\3\ and nearly all results were less than or equal to 0.2 
[micro]g/m\3\. It should be

[[Page 29221]]

noted that the exposure profile for pot tenders and cleanup workers is 
based on limited data (16 and 30 air samples, respectively), and given 
this information, OSHA believes some of these workers are exposed above 
0.2 [micro]g/m\3\.
Welding in Shipyards
    As described in Section 10, Appendix 2 of the Technological 
Feasibility chapter of the January 9, 2017 final rule (Document ID 
2042), 127 personal breathing zone (PBZ) samples collected on welders 
welding non-specified or non-beryllium-containing materials in U.S. 
shipyards and Navy facilities range from 0.02 [mu]g/m\3\ to 0.74 [mu]g/
m\3\, with a mean of 0.13 [mu]g/m\3\ and a median of 0.08 [mu]g/m\3\ 
(OSHA Shipyards, 2005, Document ID 1166; U.S. Navy, 2003, 0145). Of the 
127 samples, 123 samples (approximately 97 percent) were non-detectable 
for beryllium. This pattern was also confirmed in an observation by the 
Navy Environmental Health Center, which indicated that beryllium has 
not generally been found in welding fumes (NEHC_Jan24, 2005, Document 
ID 1236).

B. Summary of Significant Risk Finding

    As noted in the January 9, 2017 final rule, OSHA has evidence that 
workers are exposed to beryllium above 0.2 [mu]g/m\3\ in abrasive 
blasting in construction, abrasive blasting in shipyards, and welding 
in shipyards. Abrasive blasters and ancillary abrasive blasting 
workers, such as pot tenders and cleanup workers, are exposed to 
beryllium from coal slag and other mineral slags such as copper slag. 
Beryllium is a trace contaminant in these materials, but despite the 
low concentration of beryllium, airborne beryllium concentrations above 
0.2 [mu]g/m\3\ have resulted from the blasting process and may lead to 
harmful exposures to abrasive blasting operators and others in the 
vicinity of the blasting operation. In the January 9, 2017 final rule, 
OSHA determined that exposures at that level create a significant risk 
of developing CBD and lung cancer.
    In comments on the 2015 proposal, the American Blasting 
Manufacturers Alliance argued that OSHA had not established significant 
risk associated with blasting operations. In particular, it argued that 
``the Alliance members have no history of employees with beryllium 
sensitization or beryllium-related illnesses. Indeed, the Alliance 
members are not aware of a single documented case of beryllium 
sensitization or beryllium-related illness associated with coal or 
copper slag abrasive production among their employees, or their 
customers' employees working with the products of Alliance members'' 
(Document ID 1673, p. 9). However, ABMA presented no studies or 
rigorous scientific evidence to support this statement, and as OSHA 
noted in the January 9, 2017 final rule, such anecdotal reports are not 
compelling evidence, especially where there is no surveillance program, 
required or otherwise (see 82 FR 2642). Rather, the best available 
evidence indicates that there is a significant risk of CBD and lung 
cancer to workers in construction and shipyards based on the exposure 
levels observed. However, OSHA welcomes further data and comment on the 
risks of sensitization, CBD, and lung cancer among workers involved in 
abrasive blasting and welding operations in shipyards and construction.
Current Applicable Standards
    In the January 9, 2017 final rule, OSHA identified that the 
requirements for new PELs and for ancillary provisions such as medical 
surveillance, personal protective clothing and equipment, and 
beryllium-specific training provided needed protections (82 FR 2637). 
OSHA stated that it adopted ancillary provisions for construction and 
shipyards ``to ensure that workers exposed to beryllium in the 
construction and shipyard industries are provided protection that is 
comparable to the protection afforded workers in general industry.'' 
(82 FR 2639-40). However, given that other OSHA construction standards 
cover abrasive blasting operations, where the available data shows that 
beryllium exposures primarily occur, OSHA is further considering the 
need for ancillary provisions for the construction sector.
    Similarly, abrasive blasting in shipyards and welding in shipyards 
are already regulated by OSHA in various ways that limit exposure to 
beryllium among workers in these operations, and OSHA is also giving 
further consideration to the need for the ancillary standards for those 
operations.

A. Construction

    Workers in the construction sector are protected by the permissible 
exposure limits (PELs) set forth in 29 CFR 1926.55 Appendix A. The 
January 9, 2017 final rule lowered the PELs to 0.2 [mu]g/m\3\ as an 8-
hour time-weighted average and 2.0 [mu]g/m\3\ as a 15-minute short term 
exposure limit. In addition to these PELs, workers in construction are 
already protected from beryllium exposure through other standards.
    The ventilation standard in construction at 1926.57(f)(2)(ii) 
requires ``[t]he concentration of respirable dust or fume in the 
breathing zone of the abrasive-blasting operator or any other worker'' 
to remain ``below the levels specified in 1926.55,'' which OSHA 
proposes to lower to 0.2 [mu]g/m\3\ as an 8-hour time-weighted average 
and 2.0 [mu]g/m\3\ as a short term exposure limit.\36\ Through the 
construction ventilation standard, workers performing abrasive blasting 
are required to wear extensive PPE, including respirators, under 
certain conditions, including where beryllium concentrations dispersed 
by blasting may exceed the PEL and the operator is not already 
physically separated from the nozzle and blast material. 29 CFR 
1926.57(f)(5)(ii). In addition, the construction ventilation standard 
requires some housekeeping measures. 29 CFR 1926.57(f). 29 CFR 
1926.57(f)(7) requires that dust not be allowed to accumulate outside 
abrasive blasting enclosures and that spills be cleaned up promptly. 29 
CFR 1926.57(f)(3) and (f)(4) also require exhaust ventilation and dust 
collection and removal systems in abrasive blasting operations in 
construction. Compliance with those housekeeping measures during 
abrasive blasting should also reduce the amount of beryllium-containing 
dust to be cleaned, thereby protecting clean-up workers who clean spent 
abrasive blasting media after blasting operations are completed.
---------------------------------------------------------------------------

    \36\ The January 2017 final rule lowered the PELs in 
construction in 29 CFR 1926.1124. Because OSHA is now proposing to 
revoke the comprehensive construction standard while retaining the 
lower PELs, this proposal would amend the PELs in Appendix A of 29 
CFR 1926.55 to reflect the new lower PELs.
---------------------------------------------------------------------------

    Furthermore, the general industry Respiratory Protection standard 
at 1910.134 applies to construction and requires employers to provide a 
respirator to each employee when necessary to protect the employee's 
health. Additionally, OSHA requires construction employers to train 
their employees in the recognition and avoidance of unsafe conditions. 
29 CFR 1926.21. In particular, section 1926.21(b)(3) requires employers 
to instruct employees who handle harmful substances ``regarding the 
safe handling and use, and be made aware of the potential hazards, 
personal hygiene, and personal protective measures.'' The hazard 
communication standard, which applies to the construction industry, 
also requires training, including the hazards of the chemicals in the 
work area and the ``appropriate work practices, emergency procedures, 
and personal protective equipment to be used.'' 1910.1200(h)(3).

[[Page 29222]]

Shipyards
    Workers in shipyards are protected by the PELs set forth in 29 CFR 
1915.1000 Table Z. In the January 9, 2017 final rule, OSHA lowered the 
PELs to 0.2 [mu]g/m\3\ as an 8-hour time-weighted average and 2.0 
[mu]g/m\3\ as a 15-minute short term exposure limit. The January 2017 
final rule lowered the PELs in shipyards in 29 CFR 1915.1024. Because 
OSHA is now proposing to revoke the ancillary provisions for shipyards 
while retaining the lower PELs, this proposal would amend the PELs in 
Table Z of 29 CFR 1915.1000 to reflect the new lower PELs. In general, 
hazards not covered by shipyard industry standards may be covered by 
general industry standards in 29 CFR part 1910. If a hazard is covered 
by both the shipyard industry standards and the general industry 
standards, only the shipyard industry standards are cited in OSHA 
inspections (29 CFR 1910.5). In addition to these exposure limits, 
workers in shipyards are already protected from beryllium exposure 
through other standards.
1. Abrasive Blasting
    Abrasive blasting in shipyards is covered by the Mechanical paint 
removers standard. 29 CFR 1915.34. OSHA expects that most abrasive 
blasting in shipyards involves paint removal. In a comment on the 
previous proposal, the Shipbuilders Council of America commented that 
``[i]n shipyards beryllium is primarily encountered in in abrasive 
blasting operations. Coal slag particulates are used as a blast grit 
for removing paints, coatings, and rust from steel components prior to 
painting and coating.'' (Document ID 1618, p. 3). OSHA seeks comment on 
whether there are abrasive blasting operations in shipyards that are 
not covered by 1915.34. The shipyards standard at 29 CFR 1915.34(c)(3) 
requires respiratory protection and other appropriate personal 
protective equipment in abrasive blasting operations for both abrasive 
blasting operators and helpers working in the area. The general 
industry respirator standard at 1910.134 applies to shipyards and 
requires employers to provide a respirator to each employee when 
necessary to protect the employee's health. Additionally, the hazard 
communication standard requires training, including the hazards of the 
chemicals in the work area and the ``appropriate work practices, 
emergency procedures, and personal protective equipment to be used.'' 
1910.1200(h)(3).
    Certain provisions of OSHA's Ventilation standard for abrasive 
blasting (29 CFR 1910.94(a)) also apply to abrasive blasting in 
shipyards. OSHA guidance on the application of the exhaust ventilation 
paragraph of the general industry standard (29 CFR 1910.94(a)(4)) 
states that all blast-cleaning enclosures must have sufficient exhaust 
ventilation to prevent a buildup of dust-laden air and reduce the 
concentrations of hazardous air contaminants, as well as to increase 
operator visibility and prevent leakage of dust to the outside of the 
enclosure. The Ventilation standard also contains housekeeping 
requirements in the subparagraph on abrasive blasting (29 CFR 
1910.94(a)(7)). Compliance with those housekeeping measures during 
abrasive blasting should also reduce the amount of beryllium-containing 
dust to be cleaned, thereby protecting clean-up workers who clean spent 
abrasive blasting media after blasting operations are completed. In 
addition, exhaust ventilation systems must be constructed, installed, 
inspected, and maintained according to the OSHA Ventilation standard 
for abrasive blasting (29 CFR 1910.94(a)). OSHA seeks comment on 
current industry practices and legal requirements regarding PPE use for 
abrasive blasting workers, including pot tenders and clean-up workers.
    Abrasive blasting sometimes occurs in confined spaces in shipyard 
work. OSHA's standard covering confined and enclosed spaces in shipyard 
employment requires an employer to ensure that confined or enclosed 
spaces that contain or have contained toxic liquids, gases, or solids 
are inspected visually by a competent person to determine the presence 
of toxic residue contaminants and tested by a competent person before 
entry by an employee to determine the air concentration of toxic 
substances. 29 CFR 1915.12. Employees may not enter a space whose 
atmosphere exceeds a PEL except for emergency rescue, or for a short 
duration for installation of ventilation equipment, provided that the 
atmosphere in the space is monitored continuously and respiratory 
protection and other necessary and appropriate PPE and clothing are 
provided. If the beryllium PEL is exceeded in a space, the space must 
be labeled ``Not Safe for Workers'' and ventilation must be provided to 
reduce air concentrations to below the PEL. OSHA requests information 
on the prevalence of blasting in confined or enclosed spaces in 
shipyards.
2. Welding
    Welding in shipyards is likewise covered by OSHA standards. OSHA 
found, after a review of shipyard personal protective equipment 
requirements, that gloves are required under 29 CFR 1915.157(a) to 
protect workers from hazards faced by welders, such as thermal burns. 
29 CFR 1915.51 requires that ventilation be used to keep welding fumes 
and smoke within safe limits, and 29 CFR 1915.51(d)(2)(iv) specifically 
covers welding involving beryllium: ``Because of its high toxicity, 
work involving beryllium shall be done with both local exhaust 
ventilation and air line respirators.'' These safe limits in 1915.51 
are defined by the PELs in 29 CFR 1915.1000 Table Z, which currently 
has a beryllium TWA PEL of 2.0 [mu]g/m\3\ and which OSHA proposes to 
lower to 0.2 [mu]g/m\3\, along with a STEL of 2.0 [mu]g/m\3\.\37\ And, 
as previously discussed, OSHA standard 1915.12 includes protections for 
shipyard employees who perform welding in confined or enclosed spaces, 
limiting access to enclosed spaces where beryllium exposures exceed the 
PEL and requiring exposure monitoring, ventilation, warning signs, and 
PPE including respiratory protection in such spaces. The training 
provisions of the hazard communication standard apply to shipyard 
welding operations as well. OSHA seeks comment on beryllium exposures 
and existing protections among shipyard welders, and on whether the 
reduced beryllium PEL and STEL provides sufficient protection to these 
workers.
---------------------------------------------------------------------------

    \37\ The January 2017 final rule lowered the PELs in shipyards 
in 29 CFR 1915.1024. Because OSHA is now proposing to revoke the 
ancillary provisions for shipyards while retaining the lower PELs, 
this proposal would amend the PELs in Table Z of 29 CFR 1915.1000 to 
reflect the new lower PELs.
---------------------------------------------------------------------------

I. Consultation With the Advisory Committee on Construction Safety and 
Health

    Under 29 CFR 1911.10(a), OSHA must consult with the Advisory 
Committee on Construction Safety and Health (ACCSH) ``in the 
formulation of a rule to promulgate, modify, or revoke a standard.'' In 
May 2014, OSHA presented options to ACCSH for the promulgation of the 
beryllium rule. These options were (1) reducing the exposure limits in 
construction to the same level as the proposed exposure limits in 
general industry, (2) reducing the exposure limits and including a 
medical surveillance requirement, and (3) including construction in the 
scope of the rule and including the same ancillary provisions as in 
general industry. OSHA discussed the types of ancillary provisions that 
would be included but did not provide regulatory text. Some ACCSH 
members asked

[[Page 29223]]

OSHA for more information, including draft regulatory text, before 
providing OSHA with a recommendation. Without that information, ten 
members voted for the third option, and four members abstained from 
voting.
    The January 9, 2017 final rule followed ACCSH's recommendation. 
However, ACCSH's recommendation was not unanimous, and as discussed 
above, OSHA is reconsidering the ancillary provisions for construction. 
This is based on the fact that the available data show exposures of 
concern only in abrasive blasting operations, and workers engaged in 
those operations are already provided protection by a number of other 
standards. OSHA notes that this proposal is the first option that was 
presented to ACCSH at the May 2014 meeting.

II. Proposed Regulatory Text

    OSHA proposes, based on feedback from interested parties and a 
reevaluation of the applicability of existing OSHA standards, to remove 
the ancillary provisions of the comprehensive health standards in both 
construction and shipyards, but maintain the new lower PEL of 0.2 
[mu]g/m\3\ and the STEL of 2.0 [mu]g/m\3\. This would entail revoking 
both 29 CFR 1915.1024 and 29 CFR 1926.1124. It would also require 
amending 29 CFR 1915.1000 Table Z, and 29 CFR 1926.55 Appendix A. The 
entry for beryllium and beryllium compounds in section 1915.1000 Table 
Z would be amended to include a ``STEL'' designation after the ``.002'' 
entry to indicate that 2 [mu]g/m\3\ (.002 mg/m\3\) is a short term 
exposure limit, not an 8-hour TWA PEL. The entry would also be amended 
to add a ``.0002'' to reflect the change from an 8-hour TWA PEL to .2 
[mu]g/m\3\ (.0002 mg/m\3\). The references to 1915.1024 would be 
removed. OSHA would also add a new subparagraph, 29 CFR 
1915.1000(a)(3), explaining that a STEL is a short term exposure limit 
as measured over a fifteen-minute period, and amend the text to 
footnote * to include similar text. Similarly, the entry for beryllium 
and beryllium compounds in Appendix A to 29 CFR 1926.55 would be 
amended to include a ``STEL'' designation after the ``.002'' entry to 
indicate that 2 [mu]g/m\3\ (.002 mg/m\3\) is a short term exposure 
limit, not an 8-hour TWA PEL. The entry would also be amended to add a 
``.0002'' to reflect the change from an 8-hour TWA PEL to .2 [mu]g/m\3\ 
(.0002 mg/m\3\). The references to 1926.1124 would be removed. OSHA 
would also amend footnote * to explain that a STEL is a short term 
exposure limit as measured over a fifteen-minute period.
    Because OSHA has determined that significant risk remains at the 
PEL of 0.2 [mu]g/m\3\ and several OSHA construction and shipyard 
standards rely on the PEL for a portion of their provisions, the Agency 
believes it is necessary to protect workers in construction and 
shipyards using the permissible exposure limits promulgated in the 
January 9, 2017 final rule. When considering the need for ancillary 
measures in the January 9, 2017 final rule, OSHA stated that it adopted 
ancillary provisions for construction and shipyards ``to ensure that 
workers exposed to beryllium in the construction and shipyard 
industries are provided protection that is comparable to the protection 
afforded workers in general industry.'' (82 FR 2639-40). As discussed 
above, OSHA is reconsidering the need for the ancillary provisions, 
given the limited operations that are covered and the other OSHA 
standards that apply to those operations. This proposal to revoke the 
ancillary provisions for construction and shipyards while retaining the 
new PELs is intended to provide opportunity for further comment on 
these issues, and will allow OSHA to craft a new final rule with more 
extensive and detailed stakeholder input than the January 9, 2017 final 
rule.

III. Request for Comment on This Proposal and the Application of the 
January 9, 2017 Final Rule to the Construction and Shipyard Industries

    OSHA provided adequate legal notice to interested parties in its 
2015 NPRM by including regulatory alternatives that expanded the scope 
of the standard to the construction and shipyard sectors and including 
preliminary technological feasibility and economic feasibility analyses 
for those sectors. Many parties took note and commented on the 
application of the standard to construction and shipyards (e.g., ABMA, 
Document ID 1673; NABTU, Document ID 1679). However, despite the 
notice, other interested parties in the construction industry did not 
comment until the proposed delay of the effective date. (See Document 
ID 2058). Without robust participation from the construction and 
shipyard sectors, the Agency had limited data on which to proceed.
    While OSHA continues to believe that the best available evidence in 
the rulemaking record in January 9, 2017 supported the expansion of the 
scope of the rule to construction and shipyards, it is also within 
OSHA's discretion to reevaluate that decision in light of the limited 
data and concern from the regulated community. OSHA therefore seeks 
comment on this proposal to revoke the ancillary provisions for 
construction and shipyards while retaining the lower PEL and STEL. In 
particular, OSHA seeks input from interested stakeholders on the degree 
to which each provision, or combination thereof, provides (or does not 
provide) additional protections to exposed workers. OSHA requests that 
commenters provide data to support their position. In addition, OSHA 
seeks information on the steps that employers are currently taking to 
protect exposed employees. OSHA also seeks additional information and 
data commenters may have on the costs of compliance with the measures 
required by the January 9, 2017 final rule, including in particular the 
costs that small entities would incur.
    In addition to the proposal in this notice, OSHA is considering 
extending the compliance dates in the January 9, 2017 final rule by a 
year for the construction and shipyard standards. This would give 
affected employers additional time to come into compliance with its 
requirements, which could be warranted by the uncertainty created by 
this proposal. OSHA also seeks comment on that possibility, and also 
the amount of additional time employers would need to come into 
compliance with the current proposal, if adopted. As noted in the 
introduction above, while the entire beryllium rule will go into effect 
on May 20, 2017, OSHA will not enforce the January 9, 2017 shipyard and 
construction standards without further notice while this new rulemaking 
is underway.

 List of Subjects in 29 CFR Parts 1915 and 1926

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

Authority and Signature

    This document was prepared under the direction of Dorothy 
Dougherty, Deputy Assistant Secretary of Labor for Occupational Safety 
and Health, U.S. Department of Labor, 200 Constitution Avenue NW., 
Washington, DC 20210.
    The Agency issues the sections under the following authorities: 29 
U.S.C. 653, 655, 657; 40 U.S.C. 3704; 33 U.S.C. 941; Secretary of 
Labor's Order 1-2012 (77 FR 3912 (1/25/2012)); and 29 CFR part 1911.


[[Page 29224]]


    Signed at Washington, DC, on June 15, 2017.
Dorothy Dougherty,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

    For the reasons set forth in the preamble, Chapter XVII of Title 
29, parts 1915 and 1926, of the Code of Federal Regulations is proposed 
to be amended as follows:

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

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

    Authority:  33 U.S.C. 941; 29 U.S.C. 653, 655, 657; Secretary of 
Labor's Order No. 12-71 (36 FR 8754); 8-76 (41 FR 25059), 9-83 (48 
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 
50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 
55355), or 1-2012 (77 FR 3912); 29 CFR part 1911; and 5 U.S.C. 553, 
as applicable.


Sec.  1915.1024   [Removed].

0
2. Remove Sec.  1915.1024.


Sec.  1915.1000   [Amended]

0
3. Amend Sec.  1915.1000 by redesignating paragraph (a)(2) as paragraph 
(a)(3), and adding new paragraph (a)(2) to read as follows:
* * * * *
    (a)(2) Substances with Short-Term Exposure Limits (``STEL''). An 
employee's exposure to any substance in Table Z--Shipyards, the 
exposure limit of which is designated as a ``STEL,'' shall not exceed 
the exposure limit given for that substance over a sampling period of 
15 minutes.
* * * * *
0
4. In Sec.  1915.1000 amend Table Z--Shipyards, by revising the entry 
for ``Beryllium and beryllium compounds (as Be),'' removing reference 
to Sec.  1915.1024, revising footnote *, and removing footnote q.
    The revisions read as follows:


Sec.  1915.1000  Air contaminants.

* * * * *

                                               Table Z--Shipyards
----------------------------------------------------------------------------------------------------------------
                                                                                                       Skin
             Substance                 CAS No.\d\       ppm \a\ *           mg/m\3\ \b\ *           designation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Beryllium and beryllium compounds         7440-41-7  ..............  0.0002; 0.002 STEL.........  ..............
 (as Be).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
 
  * * * * * * *
* The PELs are 8-hour TWAs unless otherwise noted; a (C) designation denotes a ceiling limit; a STEL designation
  denotes a 15-minute short-term exposure limit. They are to be determined from breathing-zone air samples.
\a\ Parts of vapor or gas per million parts of contaminated air by volume at 25 [deg]C and 760 torr.
\b\ Milligrams of substance per cubic meter of air. When entry is in this column only, the value is exact; when
  listed with a ppm entry, it is approximate.
 
  * * * * * * *

* * * * *

PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

Subpart D--Occupational Health and Environmental Controls

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

     Authority: 40 U.S.C. 3704; 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 1926.61 also issued under 49 U.S.C. 5101 et seq.
    Section 1926.62 also issued under 42 U.S.C. 4853.
    Section 1926.65 also issued under 126 of Pub. L. 99-499, 100 
Stat. 1613.


Sec.  1926.1124   [Removed].

0
6. Remove Sec.  1926.1124.
0
7. In Sec.  1926.55, amend appendix A by revising the entry for 
``Beryllium and beryllium compounds (as Be),'' removing reference to 
Sec.  1926.1124, revising footnote *, and removing footnote q.
    The revisions read as follows:


Sec.  1926.55  Gases, vapors, fumes, dusts, and mists.

* * * * *

Appendix A to Sec.  1926.55--1970 American Conference of Governmental 
Industrial Hygienists' Threshold Limit Values of Airborne Contaminants 
Threshold Limit Values of Airborne Contaminants for Construction

----------------------------------------------------------------------------------------------------------------
                                                                                                       Skin
             Substance                 CAS No.\d\       ppm \a\ *            mg/m\3\ \b\            designation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Beryllium and beryllium compounds         7440-41-7  ..............  0.0002; 0.002 STEL.........  ..............
 (as Be).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
 
  * * * * * * *
* The PELs are 8-hour TWAs unless otherwise noted; a (C) designation denotes a ceiling limit; a STEL designation
  denotes a 15-minute short-term exposure limit.
 
  * * * * * * *
\a\ Parts of vapor or gas per million parts of contaminated air by volume at 25 [deg]C and 760 torr.
\b\ Milligrams of substance per cubic meter of air. When entry is in this column only, the value is exact; when
  listed with a ppm entry, it is approximate.

* * * * *
[FR Doc. 2017-12871 Filed 6-23-17; 8:45 am]
 BILLING CODE 4510-26-P