Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, 29182-29224 [2017-12871]
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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
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SUMMARY:
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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.
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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).
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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
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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
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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
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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
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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
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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 ........................
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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.
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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
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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.
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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
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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
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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).
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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.
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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.
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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).
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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
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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.
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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
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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 **
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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.
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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
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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.
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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.
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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.
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NAICS
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336611b ...
Abrasive Blasting—Shipyards ..........
Welding in Shipyards .......................
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..........................................................
..........................................................
..........................................................
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
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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
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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
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exposures occurring below 0.1 ug/m3) and do not
materially change the exposure assessment
assumptions.
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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
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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
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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).
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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
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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.
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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.
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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.
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....................
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
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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.
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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
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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
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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.
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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.
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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.
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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
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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.
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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
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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
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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.
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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.
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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
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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.
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($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.
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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;
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(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
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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.
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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.
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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.’’
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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
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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
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$42.83
$128.48
OV through PW. The annualized cost savings are
calculated at 7, 3 and 0 percent in columns PO
through PW.
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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
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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,
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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).
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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
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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.
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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
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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.
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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.
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Cost Savings Estimates
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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
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$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.
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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.
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.......................................................
.......................................................
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
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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
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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
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compliance costs between years 1 and 2,
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remaining years.
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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
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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.
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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 .........................
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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.
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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.
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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
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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.’’
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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.
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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
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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
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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.
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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
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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.
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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.
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§ 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.
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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
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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.
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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.
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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
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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.
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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
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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.
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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.
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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
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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
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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.
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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
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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
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‘‘[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.
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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.
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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
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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
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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.
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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
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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
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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.
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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
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]]>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
-----------------------------------------------------------------------
Occupational Safety and Health Administration
-----------------------------------------------------------------------
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]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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\
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\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.
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\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.
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\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
