Limited Extension of Select Compliance Dates for Occupational Exposure to Beryllium in General Industry, 39351-39360 [2018-17106]

Download as PDF sradovich on DSK3GMQ082PROD with RULES Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations becoming subject to, an involuntary petition for relief under title 11 of the United States Code; and (4) The partnership has sufficient assets, and reasonably anticipates having sufficient assets, to pay a potential imputed underpayment with respect to the partnership taxable year that may be determined under subchapter C of chapter 63 of the Internal Revenue Code as amended by the BBA; and (F) A representation, signed under penalties of perjury, that the individual signing the statement is duly authorized to make the election described in this paragraph (b) and that, to the best of the individual’s knowledge and belief, all of the information contained in the statement is true, correct, and complete. (iii) Notice of Administrative Proceeding. Upon receipt of the election described in this paragraph (b), the IRS will promptly mail a notice of administrative proceeding to the partnership and the partnership representative, as required under section 6231(a)(1) as amended by the BBA. Notwithstanding the preceding sentence, the IRS will not mail the notice of administrative proceeding before the date that is 30 days after receipt of the election described in paragraph (b) of this section. (c) Election for the purpose of filing an administrative adjustment request (AAR) under section 6227 as amended by the BBA—(1) In general. A partnership that has not been issued a notice of selection for examination as described in paragraph (b)(1) of this section may make an election with respect to a partnership return for an eligible taxable year for the purpose of filing an AAR under section 6227 as amended by the BBA. Once an election under this paragraph (c) is made, all of the amendments made by section 1101 of the BBA, except section 6221(b) as added by the BBA, apply with respect to the partnership taxable year for which such election is made. (2) Time for making the election. No election under this paragraph (c) may be made before January 1, 2018. (3) Form and manner of making an election. An election under this paragraph (c) must be made in the manner prescribed by the IRS for that purpose in accordance with applicable regulations, forms and instructions, and other guidance issued by the IRS. (4) Effect of filing an AAR before January 1, 2018. Except in the case of an election made in accordance with paragraph (b) of this section, an AAR filed on behalf of a partnership before January 1, 2018, is deemed for purposes of paragraph (d)(2) of this section, to be VerDate Sep<11>2014 15:49 Aug 08, 2018 Jkt 244001 an AAR filed under section 6227(c) (prior to amendment by the BBA) or an amended return of partnership income, as applicable. (d) Eligible taxable year—(1) In general. For purposes of this section, the term eligible taxable year means any partnership taxable year beginning after November 2, 2015 and before January 1, 2018, except as provided in paragraph (d)(2) of this section. (2) Exception if AAR or amended return filed or deemed filed. Notwithstanding paragraph (d)(1) of this section, a partnership taxable year is not an eligible taxable year for purposes of this section if for the partnership taxable year— (i) The tax matters partner has filed an AAR under section 6227(c) (prior to amendment by the BBA), (ii) The partnership is deemed to have filed an AAR under section 6227(c) (prior to the amendment by the BBA) in accordance with paragraph (c)(4) of this section, or (iii) An amended return of partnership income has been filed or has been deemed to be filed under paragraph (c)(4) of this section. (e) Applicability date. These regulations are applicable to returns filed for partnership taxable years beginning after November 2, 2015 and before January 1, 2018. § 301.9100–22T [Removed] Par. 5. Section 301.9100–22T is removed. ■ Kirsten Wielobob, Deputy Commissioner for Services and Enforcement. Approved: July 20, 2018. David J. Kautter, Assistant Secretary of the Treasury (Tax Policy). [FR Doc. 2018–17002 Filed 8–6–18; 4:15 pm] BILLING CODE 4830–01–P DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1910 [Docket ID OSHA–H005C–2006–0870] RIN 1218–AD19 Limited Extension of Select Compliance Dates for Occupational Exposure to Beryllium in General Industry Occupational Safety and Health Administration (OSHA), Labor. ACTION: Final rule. AGENCY: PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 39351 With this final rule, OSHA is extending the compliance date for certain ancillary requirements of the general industry beryllium standard to December 12, 2018. This standard protects workers from the hazards of beryllium exposure. OSHA has determined that this final rule will maintain essential safety and health protections for workers while OSHA prepares a Notice of Proposed Rulemaking (NPRM) to clarify specific provisions of the beryllium standard in accordance with a settlement agreement entered into with stakeholders. The December 12, 2018, compliance date affects only certain ancillary provisions, i.e., methods of compliance, beryllium work areas, regulated areas, personal protective clothing and equipment, hygiene areas and practices, housekeeping, communication of hazards, and recordkeeping. DATES: This rule is effective August 9, 2018. ADDRESSES: For purposes of 28 U.S.C. 2112(a), OSHA designates Edmund Baird, Acting Associate Solicitor of Labor for Occupational Safety and Health, to receive petitions for review of the final rule. Contact the Acting Associate Solicitor at the Office of the Solicitor, Room S–4004, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693–5445. SUMMARY: Citation Method In the docket for the beryllium rulemaking, found at http:// www.regulations.gov, every submission was assigned a document identification (ID) number that consists of the docket number (OSHA–H005C–2006–0870) followed by an additional four-digit number. For example, the document ID number for OSHA’s Preliminary Economic Analysis and Initial Regulatory Flexibility Analysis is OSHA–H005C–2006–0870–0426. Some document ID numbers include one or more attachments, such as the National Institute for Occupational Safety and Health (NIOSH) prehearing submission (see Document ID OSHA–H005C–2006– 0870–1671). When citing exhibits in the docket, OSHA includes the term ‘‘Document ID’’ followed by the last four digits of the document ID number, the attachment number or other attachment identifier, if applicable, and page numbers (designated ‘‘p.’’ or ‘‘Tr.’’ for pages from a hearing transcript). In a citation that contains two or more document ID numbers, the document ID numbers are separated by semicolons. FOR FURTHER INFORMATION CONTACT: E:\FR\FM\09AUR1.SGM 09AUR1 39352 Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations Press inquiries: Mr. Frank Meilinger, OSHA Office of Communications; telephone: (202) 693–1999; email: meilinger.francis2@dol.gov. General information and technical inquiries: Mr. William Perry or Ms. Maureen Ruskin, Directorate of Standards and Guidance; telephone: (202) 693–1950; email: perry.bill@ dol.gov. Copies of this Federal Register document and news releases: Electronic copies of these documents are available at OSHA’s web page at https:// www.osha.gov. SUPPLEMENTARY INFORMATION: sradovich on DSK3GMQ082PROD with RULES I. Explanation of Regulatory Action A. Introduction This final rule extends the compliance date to December 12, 2018, for certain ancillary provisions of the beryllium rule for general industry, specifically provisions related to methods of compliance, beryllium work areas, regulated areas, personal protective clothing and equipment, hygiene areas and practices, housekeeping, communication of hazards, and recordkeeping. This rule does not affect the new permissible exposure limits (PELs) for general industry, construction, and shipyards or the general industry provisions for exposure assessment, respiratory protection, medical surveillance, and medical removal, which OSHA began enforcing on May 11, 2018. This final rule also does not affect the March 11, 2019, compliance date for the provisions on change rooms and showers in paragraph (i) (hygiene areas and practices) or the March 10, 2020, compliance date for implementation of the engineering controls required by paragraph (f) (methods of compliance). Finally, this rule does not affect the applicability of paragraph (a) (scope and application) or paragraph (b) (definitions). (Document ID 2156). OSHA has determined that this final rule will maintain essential safety and health protections for workers while OSHA prepares a Notice of Proposed Rulemaking (NPRM) to clarify specific provisions of the beryllium standard in accordance with a settlement agreement entered into with stakeholders. The revisions that OSHA plans to propose are designed to enhance worker protections by ensuring that the rule is well-understood and compliance is simple and straightforward. B. Summary of Economic Impact OSHA has determined that this final rule is not economically significant. The rule revises 29 CFR 1910.1024(o)(2) to VerDate Sep<11>2014 15:49 Aug 08, 2018 Jkt 244001 extend the deadline for compliance with certain provisions of the general industry beryllium standard until December 12, 2018. OSHA’s final economic analysis shows that this compliance date extension will result in a net cost savings for the affected industries. At a 3 percent discount rate over 10 years, the extension will result in net annual cost savings of $0.76 million per year; at a discount rate of 7 percent over 10 years, the net annual cost savings is $1.73 million per year. When the Department uses a perpetual time horizon, the annualized cost savings of the final rule is $1.65 million with a 7 percent discount rate. The detailed final economic analysis, which includes more information on OSHA’s cost/cost savings estimates for this final rule, can be found in the ‘‘Agency Determinations’’ section of this preamble. The rule is also an Executive Order (E.O.) 13771 deregulatory action. C. Regulatory Background OSHA published a Notice of Proposed Rulemaking (NPRM) for occupational exposure to beryllium in the Federal Register on August 7, 2015. (80 FR 47566). In the NPRM, the agency made a preliminary determination that employees exposed to beryllium and beryllium compounds at the previous PEL faced a significant risk to their health and that promulgating the NPRM’s proposed standard would substantially reduce that risk. The NPRM invited interested stakeholders to submit comments on a variety of issues. OSHA held a public hearing in Washington, DC, on March 21 and 22, 2016. The agency heard testimony from a number of organizations, including public health groups, industry representatives, and labor unions. Following the hearing, participants had an opportunity to submit additional evidence and data, as well as final briefs, arguments, and summations (Document ID 1756, Tr. 326). On January 9, 2017, after considering the entire record, OSHA issued a final rule with separate standards for general industry, shipyards, and construction, in order to tailor requirements to the circumstances found in these sectors. See 82 FR 2470. The general industry standard became effective on March 10, 2017, and the compliance date for most of the standard’s provisions was March 12, 2018. However, on March 2, 2018, OSHA issued a memorandum stating that no provisions of the general industry standard would be enforced until May 11, 2018.1 Two subsequent 1 On May 7, 2018, OSHA published a Direct Final Rule (DFR) which became effective July 6, 2018. (83 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 enforcement delays followed—the first, on May 9, 2018, delayed enforcement until June 25, 2018, of some of the general industry standard’s ancillary provisions (related to methods of compliance, beryllium work areas, regulated areas, personal protective clothing and equipment, hygiene areas and practices, housekeeping, communication of hazards, and recordkeeping). The second delay, on June 21, 2018, postponed enforcement of those provisions until August 9, 2018. Following promulgation of the final rule in January 2017, several general industry employers, including Materion Corporation (‘‘Materion’’), challenged the rule in federal court. As part of a settlement agreement with Materion,2 OSHA is planning to propose revisions to certain provisions in the general industry standard and to rely on its de minimis policy while the rulemaking is pending so that employers may comply with the proposed revisions to the standard without risk of a citation.3 The revisions OSHA plans to propose under the settlement agreement are generally designed to clarify the standard in response to stakeholder questions or to simplify compliance, while in all cases maintaining a high degree of protection from the adverse health effects of beryllium exposure (Document ID 2156). D. Summary of Public Comments and Explanation of Final Action On June 1, 2018, OSHA published a proposed rule to extend the compliance FR 19936; 83 FR 31045). The DFR clarified the definitions of ‘‘beryllium work area,’’ ‘‘emergency,’’ ‘‘dermal contact,’’ and ‘‘beryllium contamination.’’ It also clarified OSHA’s intent with respect to provisions for disposal and recycling of materials that contain or are contaminated with beryllium, and with respect to provisions that the agency intends to apply only where skin can be exposed to materials containing at least 0.1 percent beryllium by weight. 2 The Materion settlement agreement can be viewed on regulations.gov (Document ID 2156): https://www.regulations.gov/document?D=OSHAH005C-2006-0870-2156. 3 The OSH Act allows the Secretary of Labor to prescribe procedures for issuing notices instead of citations for ‘‘de minimis violations’’ that have no direct or immediate relationship to safety or health. 29 U.S.C. 658(a). OSHA’s de minimis policy is set forth in its Field Operations Manual, available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_ 02-00-160.pdf. OSHA considers it a de minimis condition when an employer ‘‘complies with a proposed OSHA standard or amendment or a consensus standard rather than with the standard in effect at the time of the inspection and the employer’s action clearly provides equal or greater employee protection.’’ De minimis conditions do not result in citations or penalties. See 29 CFR 1903.15(c) (‘‘Penalties shall not be proposed for de minimis violations which have no direct or immediate relationship to safety or health.’’); See Employer Rights and Responsibilities Following a Federal OSHA Inspection, https://www.osha.gov/ Publications/osha3000.pdf. E:\FR\FM\09AUR1.SGM 09AUR1 Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES date to December 12, 2018 for certain ancillary requirements of the general industry beryllium standard. (83 FR 25536). OSHA explained that the proposed extension would give the agency time to prepare and publish a planned NPRM to amend the general industry standard before employers would be required to comply with certain ancillary provisions affected by that NPRM. That in turn would allow employers to comply with the proposed provisions without risk of a citation until any such changes are finalized (Document ID 2156). In the proposal, OSHA requested comments from the public on both the duration and scope of the proposed compliance date extension (83 FR 25539). OSHA asked commenters to include a rationale for any concerns they had with the proposal, as well as for any alternatives they suggested. OSHA also requested comments on the ‘‘Agency Determinations’’ section of the proposal, including the preliminary economic analysis and other regulatory effects on employers and workers. OSHA received ten comments in response to the proposal (Document IDs 2159–2168). The comments generally focused on three issues arising from the proposed extension: (1) Whether to extend the compliance date, (2) the scope of any extension, and (3) the appropriate duration of any extension. Below we examine these three issues, in that order—by summarizing the comments and then explaining the agency’s determinations based on the record as a whole. We then address two miscellaneous comments. 1. Extension of the Compliance Date for Certain Ancillary Provisions in the General Industry Standard Five commenters supported the agency’s proposed extension of the compliance date for ancillary provisions affected by OSHA’s forthcoming, substantive NPRM. (See Document ID 2161; 2165–2168). For example, Century Aluminum Company stated that ‘‘the affected portions of the Standard should be delayed to allow OSHA time to prepare and publish the substantive proposed rule so that employers do not take unnecessary and costly measures.’’ (Document ID 2165, p.1). It added that the proposed delay would also limit confusion among employers and other stakeholders. (Document ID 2165, p.1). Materion similarly observed that the proposed extension would address the concern that beginning enforcement of provisions affected by the NPRM could result in employer confusion or improper implementation of the relevant provisions of the rule. VerDate Sep<11>2014 15:49 Aug 08, 2018 Jkt 244001 (Document ID 2161, p.2). Airborn Inc., Mead Metals, Inc., and the National Association of Manufacturers (NAM) supported Materion’s comments and registered their own support for the extension. (Document ID 2166, p.1; 2167, p.1; 2168, pp.1–2). These three stakeholders agreed that an extension is ‘‘necessary to give OSHA enough time to draft and publish’’ the forthcoming, substantive NPRM. (Document ID 2166, p.1; 2167, p.1; 2168, p.1). NAM added that the proposed extension was ‘‘another positive step toward a more effective general industry standard for the benefit of workers.’’ (Document ID 2168, p.2). NAM also expressed its appreciation for ‘‘OSHA’s recognition of employers’ reasonable and practical concerns regarding compliance in anticipation of [the forthcoming, substantive NPRM].’’ (Document ID 2168, p.2). Four other commenters, the United Steelworkers (USW), Public Citizen, UNITE HERE! International Union (UNITE HERE), and the National Employment Law Project (NELP), opposed the proposed extension. (Document ID 2160; 2162–2164). These commenters argued that the extension would be unnecessary and unjustified, and would delay the implementation of important protections for workers. (See, e.g., Document ID 2160, pp. 1–2). For example, Public Citizen maintained that ‘‘[e]xpeditious implementation of the ancillary provisions in general industry is absolutely necessary to enhance the benefits of the newly adopted PEL, ultimately providing another level of protection in occupational settings.’’ (Document ID 2162, p.3). It argued that delaying implementation would allow employers to continue to expose workers to unsafe levels of beryllium, ensuring ‘‘the occurrence of even more cases of beryllium sensitization, chronic beryllium disease, . . . . lung cancer,’’ and other adverse health effects. (Document ID 2162, p.3). OSHA understands Public Citizen’s concerns; the agency’s goal is to protect the health and safety of workers. That is why OSHA has narrowly tailored the scope of the compliance date extension to cover only provisions that will be affected by the forthcoming, substantive NPRM. OSHA is enforcing, and will continue to enforce, many of the provisions that provide critical protection to general industry employees. This final rule does not affect critical worker protections afforded by enforcement of the revised lower PEL, the new short-term exposure limit (STEL), and requirements for exposure assessment, respiratory PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 39353 protection, medical surveillance, and medical removal. Moreover, in adopting this final rule, OSHA recognizes that the goal of worker protection can be frustrated where employers do not clearly understand OSHA’s requirements or how to implement them. OSHA appreciates the concerns of those stakeholders who note that, until OSHA releases its planned NPRM, employers may lack clarity regarding how to implement and comply with the beryllium standard. OSHA has determined that it would be undesirable, for both the agency and those it regulates, to begin enforcement of certain ancillary provisions of the standard that will likely be affected by the upcoming rulemaking—a scenario that could result in employers taking unnecessary measures to comply with provisions to which OSHA intends to propose clarifications. NELP and Public Citizen also asserted that the proposed compliance-date extension conflicted with OSHA’s finding that a comprehensive standard is needed to protect workers exposed to beryllium. (Document ID 2162; 2163). OSHA disagrees with that assertion that this extension is in conflict with OSHA’s findings. OSHA believes that a comprehensive standard is critically important for the protection of workers exposed to beryllium in general industry settings. However, the benefits of a comprehensive standard may not be fully realized where employers do not clearly understand, and have trouble implementing, its requirements. OSHA finds that this limited, short-term extension of the compliance date for certain ancillary requirements of the standard will give the agency the time necessary to ensure that employers have clear direction on how to protect workers exposed to beryllium. Additionally, as noted previously, OSHA will continue to maintain essential safety and health protections for workers through ongoing enforcement of many of the beryllium standard’s key provisions. Enforcement of other OSHA standards, such as the Hazard Communication Standard (29 CFR 1910.1200) and Access to Employee Exposure and Medical Records (29 CFR 1910.1020) will also provide other important protections for workers in general industry. In particular, employers are, and will remain, obligated to label hazardous chemicals containing beryllium, ensure that safety data sheets are readily available, and train workers on the hazards of beryllium in accordance with the Hazard Communication Standard. OSHA encourages employers to review their hazard communication programs, E:\FR\FM\09AUR1.SGM 09AUR1 sradovich on DSK3GMQ082PROD with RULES 39354 Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations employee training, and other hazard communication practices (such as workplace labeling) to ensure continued compliance with the Hazard Communication Standard. USW and UNITE HERE also questioned OSHA’s justification for the proposed extension of compliance dates. USW objected to OSHA’s preliminary determination that beginning enforcement of the ancillary provisions identified in the proposal before publication of the substantive NPRM could result in employer confusion or improper implementation of the relevant provisions of the rule. (Document ID 2160, p.2). USW argued that employers could avoid confusion by complying with the revisions that are identified in the settlement agreement. (Document ID 2160, p.2). In addition, USW and UNITE HERE claimed that OSHA proposed this extension to ‘‘demonstrate that it has taken deregulatory action.’’ (Document ID 2160, p.2; 2164). OSHA does not agree with the USW that this extension of compliance dates is unnecessary because employers can rely on the regulatory revisions identified in the settlement agreement before publication of the substantive NPRM. The settlement agreement contains only a redlined version of the relevant regulatory text. It does not include a full summary and explanation of the revisions, in which OSHA explains the meaning of the proposed revisions to the regulatory text and, in some cases, provides further information and examples to aid compliance. For example, OSHA is planning to propose changes to paragraph (j)(3), to address reuse of beryllium-containing materials in addition to disposal and recycling, because in some cases materials may be directly reused without being recycled. In the summary and explanation for the proposed rule, OSHA will explain the intended meaning of the term ‘‘reuse’’ and the circumstances under which the cleaning and bagging requirements included in paragraph (j)(3) would apply to the reuse of materials that contain beryllium. OSHA also disagrees with USW and UNITE HERE’s characterization of the rationale for this extension. Although OSHA noted in the proposal that the proposed extension was ‘‘expected to be an . . . E.O.[ ] 13771 deregulatory action,’’ it included that statement to carry out its obligations under E.O. 13771, not to justify the rulemaking. As stated above, the reason for this rulemaking is to provide OSHA sufficient time to promulgate proposed clarifications to the general industry VerDate Sep<11>2014 15:49 Aug 08, 2018 Jkt 244001 standard, so that employers can easily understand and properly implement the standard in order to keep workers healthy and safe. Based on the record as a whole, OSHA finds the arguments in favor of the proposed extension of compliance dates to be more persuasive than those against the proposal. Therefore, the agency has decided to adopt the proposed extension of compliance dates to allow time for the preparation and publication of the planned, substantive NPRM. 2. Scope of the Extension Having determined that an extension of the compliance date for certain ancillary provisions in the beryllium standard for general industry is appropriate, OSHA next addresses comments regarding which provisions will be included in the extension. In the NPRM, OSHA proposed extending the compliance date for the following provisions: Beryllium work areas and regulated areas (paragraph (e)), written exposure control plans (paragraph (f)(1)), personal protective clothing and equipment (paragraph (h)), hygiene areas and practices (paragraph (i) except for change rooms and showers), housekeeping (paragraph (j)), communication of hazards (paragraph (m)), and recordkeeping (paragraph (n)). OSHA requested comments on the proposed scope of the extension. Several commenters objected to the scope of the proposed compliance-date extension. For example, USW asserted that the underlying settlement agreement only ‘‘affects beryllium products whose content is less [than] 1% by weight, but which does not generate exposures above the PEL.’’ (Document ID 2160, p. 1). Therefore, USW argued, ‘‘[t]here is no basis for staying ancillary provisions of the standard in workplaces where exposures to beryllium are above the PEL.’’ (Document ID 2160, pp. 1–2). UNITE HERE also asserted that the proposed extension of compliance dates should be limited to provisions that OSHA intends to change. (Document ID 2164). It further argued that ‘‘there is no justification to delay any provision of the standard to the extent that it would regulate exposures above the PEL.’’ (Document ID 2164). NELP similarly commented that the proposal was ‘‘broad and needlessly pushes back compliance dates of important worker protections to a highly toxic substance.’’ (Document ID 2163, p.1). Century Aluminum, however, argued that OSHA should not extend the compliance date for only certain portions of affected paragraphs, as PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 proposed by some of the other commenters. Beyond making it clear that the compliance dates for engineering and work practice controls (March 10, 2020) and change rooms and showers (March 11, 2019) remain unchanged, Century Aluminum asserted that differentiating by portions of affected paragraphs would lead to substantial confusion among employers and other stakeholders.4 OSHA agrees with Century Aluminum’s assessment that an extension of compliance dates that differentiated between individual subparagraphs of the affected ancillary provisions, as suggested by USW and UNITE HERE, would create substantial confusion.5 In addition, OSHA does not find that the extension should be limited to only those situations where beryllium exposures do not exceed the PEL. Contrary to USW’s assertion, the substantive changes OSHA intends to propose to the beryllium standard for general industry do apply to processes that generate exposures above the PEL, and they are not limited to products whose beryllium content is less than one percent by weight. For example, changes to provisions for methods of compliance, personal protective clothing and equipment, housekeeping, and hygiene areas and practices involve all beryllium-containing materials where exposures may occur. Therefore, 4 Materion commented that the proposed extension of compliance dates did not cover all of the provisions that could be affected by the forthcoming, substantive NPRM. (Document ID 2161, p.1). Specifically, Materion noted that the NPRM could also affect the requirements for medical surveillance and change rooms. (Document ID 2161, p.1 (citing Document ID 2156, Appendix B)). However, Materion did not ask OSHA to make any changes to the scope of the extension based on its comment. Rather, its comment appeared to serve as a recommendation to other employers to ‘‘take careful note of the proposed changes identified in the settlement agreement, and to take them into account when implementing their compliance programs for medical surveillance and change rooms.’’ (Document ID 2161, p.1). OSHA notes that, until the NPRM is published, employers may comply with the medical surveillance provisions as clarified by the definitions of ‘‘CBD diagnostic center,’’ ‘‘chronic beryllium disease,’’ and ‘‘confirmed positive’’ that OSHA has agreed to propose, which are available in the docket (Document ID 2156) and in OSHA’s interim enforcement guidance (https://www.osha.gov/lawsregs/standardinterpretations/2018-05-09). 5 OSHA recognizes that three paragraphs, i.e., the paragraphs related to change rooms and showers in paragraph (i) and the requirement in paragraph (f)(2) for the implementation for engineering controls, have different compliance dates than those set for other paragraphs in paragraphs (i) and (f). However, this is a function of the way the compliance date provisions were structured in the January 9, 2017, final rule, and those dates were set based on specific findings made by the agency in that rulemaking. The agency believes employers have had ample notice of when the agency intends to begin enforcement of these particular provisions. E:\FR\FM\09AUR1.SGM 09AUR1 Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations OSHA’s rationale for the extension of compliance dates applies to all general industry workplaces within the scope of the beryllium standard, including those where beryllium exposures may exceed the PEL. Finally, as to UNITE HERE’s comment that the extension should be limited to provisions that OSHA intends to change in the final standard, OSHA has reexamined each of the provisions covered by the proposed extension and confirmed that the final extension of compliance dates applies only to paragraphs affected by the upcoming, substantive NPRM. After considering these comments, OSHA has decided to retain the scope of the extension as proposed. The extension of compliance dates, therefore, will apply to the following provisions: Beryllium work areas and regulated areas (paragraph (e)), written exposure control plans (paragraph (f)(1)), personal protective clothing and equipment (paragraph (h)), hygiene areas and practices (paragraph (i) except for change rooms and showers), housekeeping (paragraph (j)), communication of hazards (paragraph (m)), and recordkeeping (paragraph (n)). sradovich on DSK3GMQ082PROD with RULES 3. Duration of the Extension Having determined that it is appropriate to extend the compliance date for certain ancillary provisions in the general industry beryllium standard, the remaining issue is the duration of the extension. In the NPRM, OSHA proposed extending the relevant compliance date until December 12, 2018. OSHA requested comments on the duration of the extension. Very few commenters expressly opined on the duration of the proposed compliance date extension, and those who did disagreed as to whether a longer or shorter extension was appropriate. For example, Century Aluminum asked OSHA to consider extending the relevant compliance date for an additional three months, to March 11, 2019. (Document ID 2165, pp. 1–2). It argued that ‘‘[a]n additional three months would give OSHA the time to receive comments on the substantive proposed rule and publish a final rule.’’ (Document ID 2165, p.1). It further stated that a longer extension would prevent confusion and unnecessary costs: A delay until the substantive rulemaking is completed would also prevent a situation where employers comply with the de minimis policy, only to have to change practices if the final rule does not adopt all of the revisions in the proposed rule. The costs of such a midstream about-face could be significant. Moreover, aligning the compliance date with March 11, 2019, which VerDate Sep<11>2014 15:49 Aug 08, 2018 Jkt 244001 is the compliance date for the change rooms and showers required by paragraph (i) of the Standard, would simplify compliance efforts and limit confusion among affected entities. Finally, the additional few months would allow state plans time to consider whether to adopt any revisions OSHA makes to the Standard without causing significant disruption in their respective states. (Document ID 2165, p.2). USW and UNITE HERE, on the other hand, recommended that the proposed extension continue until thirty days after the substantive NPRM is issued or December 12, 2018, whichever comes first. USW maintained that the potentially shorter extension would allow time for employers to conform their practices to the content of the NPRM, while providing workers with necessary protections as soon as possible. After considering these comments, OSHA is not persuaded that it should alter the duration of the proposed extension. Although OSHA appreciates Century Aluminum’s points, the agency must balance arguments in favor of a longer extension against the concerns raised by commenters, such as USW, that an unnecessarily lengthy extension could deny general industry workers certain protections afforded to them under the affected ancillary provisions. Moreover, although OSHA understands Century Aluminum’s concern about the potential increase in costs that could result if the provisions adopted as a result of the planned substantive rulemaking do not mirror those proposed in the substantive NPRM, the agency cannot, at this time, estimate with much certainty when any final rule will be promulgated.6 OSHA also rejects USW and UNITE HERE’s call for compliance dates based on the publication of the substantive NPRM; a timeline based on a currently uncertain date would be more difficult and confusing for employers and workers. The agency finds that the proposed compliance date of December 12, 2018, appropriately balances the concerns raised by stakeholders, will provide the agency sufficient time to draft and publish the NPRM, and will give employers sufficient time to comply. Therefore, OSHA has decided to extend the compliance date for the identified provisions until December 12, 2018, as proposed. 6 Although not suggested by Century Aluminum, OSHA also notes that an indefinite extension of compliance deadlines, i.e., a compliance date determined by the date the substantive rulemaking is completed, is likely to result in greater, not less, confusion. PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 39355 4. Miscellaneous Comments OSHA also received two comments that did not directly relate to the proposed extension of compliance dates. The first, from Materion, is related to a statement the agency made in the proposal. (Document ID 2161, p.2). Specifically, OSHA stated that it ‘‘expects to publish the planned, substantive NPRM well in advance of the compliance dates’’ for change rooms and showers (March 11, 2019) and engineering controls (March 10, 2020). Materion maintained that ‘‘it is reasonable and necessary for OSHA to not only publish the NPRM, but complete its final changes to the General Industry Standard for beryllium well ahead of March 11, 2019, since the revisions OSHA plans to propose are primarily clarifying or simplifying in nature . . . and designed to enhance worker protections by ensuring that the rule is well-understood and compliance is simple and straightforward.’’ (Document ID 2161, p.2 (citing Document ID 2156)). Materion further commented that ‘‘[e]mployees will benefit most by completion of all changes as soon as possible, and certainly before early 2019.’’ (Document ID 2161, p.2). OSHA understands Materion’s concern, and agrees that prompt finalization of any substantive revisions to the general industry standard for beryllium would be ideal. Therefore, the agency will proceed with the substantive rulemaking as expeditiously as possible. However, OSHA will also need to ensure that stakeholders have a meaningful opportunity to comment on the forthcoming proposal and that the agency has adequate time to consider and address stakeholder comments. Consequently, at this time the agency does not have a specific target date for conclusion of the substantive rulemaking. The second comment that was not directly related to the proposed extension of compliance dates was submitted by an anonymous commenter, who indicated strong support for the beryllium rule generally. (Document ID 2159). The commenter submitted summary statistics on relationships between beryllium exposure and the prevalence of beryllium sensitization and chronic beryllium disease in a cohort at a beryllium precision machining facility and stated that the results support the control of workplace beryllium exposures. However, this commenter did not address how the data or conclusions provided related to the proposed extension of compliance dates E:\FR\FM\09AUR1.SGM 09AUR1 39356 Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations or otherwise offer any comments on the specific terms of the proposed extension. To the extent that this commenter intended to argue that the proposed extension of compliance dates would have a detrimental impact on worker health, that comment is addressed above in response to similar concerns expressed by USW, Public Citizen, UNITE HERE, and NELP. II. Agency Determinations sradovich on DSK3GMQ082PROD with RULES A. Final Economic Analysis and Regulatory Flexibility Certification Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601–612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)) require that OSHA estimate the benefits, costs, and net benefits of regulations, and analyze the effects of certain rules that OSHA promulgates. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This final rule is not an ‘‘economically significant regulatory action’’ under E.O. 12866 or UMRA, or a ‘‘major rule’’ under the Congressional Review Act (5 U.S.C. 801 et seq.). Neither the benefits nor the costs of this final rule would exceed $100 million in any given year. This final rule to extend the compliance date for certain ancillary provisions in the beryllium standard would result in cost savings. Cost savings arise in this context because a delay in incurred costs for employers would allow them to invest the funds (and earn an expected return at the going interest rate) that would otherwise have been spent to comply with the beryllium standard. OSHA did not receive any comments on the preliminary economic analysis OSHA prepared for the proposal. At a discount rate of 3 percent, this final compliance-date extension yields annualized cost savings of $0.76 million per year for 10 years. At a discount rate of 7 percent, this final rule yields an annualized cost savings of $1.73 million per year for 10 years. When the Department uses a perpetual time horizon to allow for cost comparisons under E.O. 13771 (82 FR 9339, Jan. 30, 2017), the annualized cost savings of this final compliance date extension are $1.65 million at a discount rate of 7 percent. 1. Changes to the Baseline: Updating to 2017 Dollars and Removing Familiarization Costs; Discussion of Overhead Costs More than one year has elapsed since promulgation of the beryllium standards VerDate Sep<11>2014 15:49 Aug 08, 2018 Jkt 244001 on January 9, 2017, so OSHA has updated the projected costs for general industry contained in the final economic analysis that accompanied the rule from 2015 to 2017 dollars, using the latest Occupational Employment Statistics (OES) wage data (for 2016) and inflating them to 2017 dollars. Additionally, although familiarization costs were included in the cost estimates developed in the 2017 economic analysis, OSHA expects that those costs have already been incurred by affected employers, and is excluding them from its analysis of the cost savings associated with this extension of compliance dates. Thus, baseline costs for this final economic analysis (FEA) are the projected costs from the 2017 economic analysis, updated to 2017 dollars, less familiarization costs. OSHA notes that it did not include an overhead labor cost in the 2017 analysis, and has not accounted for such costs in this FEA. There is not one broadly accepted overhead rate, and the use of overhead to estimate the marginal costs of labor raises a number of issues that should be addressed before applying overhead costs to analyze the cost implications of any specific regulation. There are several ways to look at the cost elements that fit the definition of overhead, and there is a range of overhead estimates currently used within the federal government—for example, the Environmental Protection Agency has used 17 percent,7 and government contractors have reportedly used 50 percent for on-site (i.e., company site) overhead.8 Some overhead costs, such as advertising and marketing, may be more closely correlated with output than with labor. Other overhead costs vary with the number of new employees. For example, rent or payroll processing costs may change little with the addition of 1 employee in a 500-employee firm, but may change substantially with the 7 Cody Rice, U.S. Environmental Protection Agency, ‘‘Wage Rates for Economic Analyses of the Toxics Release Inventory Program,’’ June 10, 2002 (document ID 2025). This analysis itself was based on a survey of several large chemical manufacturing plants: Heiden Associates, Final Report: A Study of Industry Compliance Costs Under the Final Comprehensive Assessment Information Rule, Prepared for the Chemical Manufacturers Association, December 14, 1989. 8 Grant Thornton LLP, 2017 Government Contractor Survey, https://www.grantthornton.com/ -/media/content-page-files/public-sector/pdfs/ surveys/2018/2017-government-contractor-survey. According to Grant Thornton’s 2017 Government Contractor Survey, on-site rates are generally higher than off-site rates, because the on-site overhead pool includes the facility-related expenses incurred by the company to house the employee, while no such expenses are incurred or allocated to the labor costs of direct charging personnel who work at the customer site. PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 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. If OSHA had included an overhead rate when estimating the marginal cost of labor, without further analyzing an appropriate quantitative adjustment, and adopted for these purposes an overhead rate of 17 percent on base wages, the cost savings of this final rule would increase to approximately $0.82 million per year, at a discount rate of 3 percent, or to approximately $1.87 million per year, at a discount rate of 7 percent.9 The addition of 17-percent overhead on base wages would therefore increase cost savings by approximately 8 percent above the primary estimate at either discount rate. 2. Changes to the Standard: Nine-Month Extension of the Compliance Date for Some Ancillary Provisions The general industry beryllium standard went into effect on May 20, 2017, with most compliance obligations beginning on March 12, 2018. OSHA is finalizing the extension of the compliance date for specific provisions until December 12, 2018. The compliance date for the updated PELs, as well as for the exposure assessment, respiratory protection, medical surveillance, and medical removal requirements, and for provisions for which the standard already establishes compliance dates in 2019 and 2020, do not change as a result of this rule. The applicability of the scope and application paragraph and the definitions also do not change as a result of this rule, except that employers may comply with the definitions of ‘‘CBD diagnostic center,’’ ‘‘chronic beryllium disease,’’ and ‘‘confirmed positive’’ that will be proposed in the later substantive rulemaking NPRM (Document ID 2156). The purpose of this final rule is to provide time for OSHA to issue a planned NPRM that will affect the parts of the standard that are covered by this compliance-date extension before that compliance date is reached, so that OSHA may rely on its de minimis policy and employers may 9 OSHA used an overhead rate of 17 percent on base wages in a sensitivity analysis in the final economic analysis (OSHA–2010–0034–4247, p. VII– 65) in support of the March 25, 2016, final respirable crystalline silica standards (81 FR 16286) and in the preliminary economic analysis in support of the June 27, 2017, beryllium proposal for the construction and shipyard sectors (82 FR 29201). E:\FR\FM\09AUR1.SGM 09AUR1 Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations comply with the proposed provisions without risk of a citation. OSHA estimated the cost savings of the final rule relative to baseline costs, where baseline costs reflect the costs of compliance without the final rule’s changes to the compliance date. OSHA calculated the cost savings by lagging the first-year costs for the affected provisions by nine months and then calculating the present value of the delayed costs over the 10 years following the new compliance date. Annualizing the present value of cost savings over ten years, the result is an annualized cost savings of $0.76 million per year at a discount rate of 3 percent, or $1.73 million per year at a discount rate of 7 percent. When the Department uses a perpetual time horizon to allow for cost comparisons under E.O. 13771, the annualized cost savings of this compliance date extension is $1.65 million at a discount rate of 7 percent. The undiscounted cost savings by provision and year are presented below in Table 1. As shown in Table 1, and described elsewhere in this final rule, the cost savings described in this FEA reflect savings only for provisions covered by the compliance date extension. OSHA estimated no cost savings for the PELs, exposure assessment, respiratory protection, medical surveillance, or medical removal provisions (as they are not covered by the extension), or for any provisions for which the rule already establishes compliance dates in 2019 (change rooms/showers) or 2020 (engineering controls).10 The cost sradovich on DSK3GMQ082PROD with RULES 10 Note that the labor costs associated with time spent changing clothes are generally triggered by wearing personal protective equipment, as required by paragraph (h) of the beryllium standard. OSHA VerDate Sep<11>2014 15:49 Aug 08, 2018 Jkt 244001 savings by year and discount rate are shown below in Table 2. 3. Economic and Technological Feasibility In the final economic analysis for the 2017 general industry beryllium standard, OSHA concluded that the rule was technologically feasible. OSHA has determined that this final rule is also technologically feasible because it does not change any of the rule’s substantive requirements, and, if adopted, would simply give employers more time to comply with some of the rule’s ancillary requirements. Furthermore, OSHA previously concluded that the beryllium standard was economically feasible. As this final rule does not impose any new substantive requirements, and results in cost savings, OSHA has concluded that the final rule is also economically feasible. 4. Effects on Benefits The planned rulemaking to revise the general industry beryllium standard is intended to be responsive to questions and concerns expressed by stakeholders regarding ancillary provisions of the rule. Safety and health programs can be ineffective if employers and other is extending the compliance date for paragraph (h). Thus, employers will not incur the labor costs associated with changing time for personal protective equipment until December 12, 2018, so OSHA is generally accounting for those cost savings in this FEA. OSHA has not accounted for any cost savings related to the use of head covers, however. Head covers may be used to prevent contamination of employees’ hair, potentially precluding the need for showers under paragraph (i)(3) of the standard. Because this final rule does not extend the compliance date for showers, OSHA has not accounted for head covers for purposes of estimating the cost savings associated with this final rule. PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 39357 stakeholders are unclear about OSHA requirements. Hence, by addressing stakeholder questions and concerns, the planned rulemaking will make it more likely that the regulated community will realize the full benefits of the rule, as estimated in the 2017 final economic analysis. Although it is not possible to quantify the effect of stakeholder uncertainty on the projected benefits of the rule, OSHA believes that the shortterm loss of benefits associated with this extension of initial compliance dates will be more than offset in the long term by the benefits resulting from the agency’s effort to clarify the rule. OSHA has determined that this final rule will maintain essential safety and health protections for workers. 5. Certification of No Significant Impact on a Substantial Number of Small Entities This final rule will result in cost savings for affected employers, and those savings fall below levels that could be said to have a significant positive economic impact on a substantial number of small entities.11 Therefore, OSHA certifies that this final rule does not have a significant impact on a substantial number of small entities. BILLING CODE 4510–26–P 11 OSHA investigated whether the projected cost savings would exceed 1 percent of revenues or 5 percent of profits for small entities and very small entities for every industry. To determine if this was the case, OSHA returned to its original regulatory flexibility analysis (2017) for small entities and very small entities. OSHA found that the cost savings of this final rule are such a small percentage of revenues and profits for every affected industry that OSHA’s criteria would not be exceeded for any industry. E:\FR\FM\09AUR1.SGM 09AUR1 Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations BILLING CODE 4510–26–C VerDate Sep<11>2014 15:49 Aug 08, 2018 Jkt 244001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\09AUR1.SGM 09AUR1 ER09AU18.003</GPH> sradovich on DSK3GMQ082PROD with RULES 39358 Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations 39359 TABLE 2—COST SAVINGS DUE TO COMPLIANCE DATE EXTENSION Year Undiscounted costs by year t Discounted costs—3% Discounted costs—7% Baseline 1 ....................................................................................................................... 2 ....................................................................................................................... 3 ....................................................................................................................... 4 ....................................................................................................................... 5 ....................................................................................................................... 6 ....................................................................................................................... 7 ....................................................................................................................... 8 ....................................................................................................................... 9 ....................................................................................................................... 10 ..................................................................................................................... 1.00 2.00 3.00 4.00 5.00 6.00 7.00 8.00 9.00 10.00 $53,861,070 31,965,865 31,965,865 31,965,865 31,965,865 31,965,865 31,965,865 31,965,865 31,965,865 31,965,865 $52,292,301 30,130,893 29,253,295 28,401,257 27,574,036 26,770,909 25,991,173 25,234,149 24,499,174 23,785,605 $50,337,449 27,920,224 26,093,668 24,386,605 22,791,220 21,300,205 19,906,734 18,604,424 17,387,312 16,249,825 Total .......................................................................................................... Annualized—10 Years .............................................................................. ........................ ........................ ........................ ........................ 293,932,792 34,457,890 244,977,667 34,879,308 Discounting Option 1 1 ....................................................................................................................... 2 ....................................................................................................................... 3 ....................................................................................................................... 4 ....................................................................................................................... 5 ....................................................................................................................... 6 ....................................................................................................................... 7 ....................................................................................................................... 8 ....................................................................................................................... 9 ....................................................................................................................... 10 ..................................................................................................................... 1.75 2.75 3.75 4.75 5.75 6.75 7.75 8.75 9.75 10.75 53,861,070 31,965,865 31,965,865 31,965,865 31,965,865 31,965,865 31,965,865 31,965,865 31,965,865 31,965,865 51,145,783 29,470,268 28,611,911 27,778,554 26,969,470 26,183,952 25,421,312 24,680,886 23,962,025 23,264,102 47,846,852 26,538,787 24,802,605 23,180,004 21,663,556 20,246,314 18,921,788 17,683,914 16,527,023 15,445,816 Total .......................................................................................................... Annualized—10 Years .............................................................................. ........................ ........................ ........................ ........................ 287,488,264 33,702,395 232,856,658 33,153,550 Difference from Baseline ................................................................... ........................ ........................ ¥755,495 ¥1,725,759 sradovich on DSK3GMQ082PROD with RULES B. Paperwork Reduction Act This final rule does not change the information collections already approved by the Office of Management and Budget (OMB). OMB approved the information collection request for the general industry beryllium standard under OMB Control Number 1218–0267, with an expiration date of April 30, 2020. OSHA received no comments on the information collection request in response to the proposal. C. Federalism OSHA reviewed this final rule in accordance with the Executive Order on Federalism (E.O. 13132, 64 FR 43255 (Aug. 10, 1999)), which requires that Federal agencies, to the extent possible, refrain from limiting state policy options, consult with states prior to taking any actions that would restrict state policy options, and take such actions only when clear constitutional authority exists and the problem is national in scope. E.O. 13132 provides for preemption of state law only with the expressed consent of Congress. Federal agencies must limit any such preemption to the extent possible. Under Section 18 of the Occupational Safety and Health Act of 1970 (OSH VerDate Sep<11>2014 15:49 Aug 08, 2018 Jkt 244001 Act) (29 U.S.C. 651 et seq.), Congress expressly provides that states and U.S. territories may adopt, with Federal approval, a plan for the development and enforcement of occupational safety and health standards. OSHA refers to such states and territories as ‘‘State Plan States.’’ Occupational safety and health standards developed by State Plan States must be at least as effective in providing safe and healthful employment and places of employment as the Federal standards. 29 U.S.C. 667. Subject to these requirements, State Plan States are free to develop and enforce under state law their own requirements for safety and health standards. OSHA previously concluded from its analysis that promulgation of the beryllium standard complies with E.O. 13132 (82 FR at 2633). In states without an OSHA-approved State Plan, this final rule limits state policy options in the same manner as every standard promulgated by OSHA. For State Plan States, Section 18 of the OSH Act, as noted in the previous paragraph, permits State Plan States to develop and enforce their own beryllium standards provided these requirements are at least as effective in providing safe and PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 healthful employment and places of employment as the requirements specified in this final rule. D. State Plans When Federal OSHA promulgates a new standard or a more stringent amendment to an existing standard, State Plans must amend their standards to reflect the new standard or amendment, or show OSHA why such action is unnecessary, e.g., because an existing state standard covering this area is ‘‘at least as effective’’ as the new Federal standard or amendment (29 CFR 1953.5(a)). The state standard must be at least as effective as the final Federal rule. State Plans must adopt the Federal standard or complete their own standard within six months of the promulgation date of the final Federal rule. When OSHA promulgates a new standard or amendment that does not impose additional or more stringent requirements than an existing standard, State Plans do not have to amend their standards, although OSHA may encourage them to do so. The 21 states and 1 U.S. territory with OSHAapproved occupational safety and health plans covering the private sector and state and local governments are: Alaska, E:\FR\FM\09AUR1.SGM 09AUR1 39360 Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands have OSHA-approved State Plans that apply to state and local government employees only. The new amendments to OSHA’s beryllium final rule do not impose any new requirements on employers. Accordingly, State Plans do not have to amend their standards to extend the compliance dates for their beryllium rules, but they may do so within the limits of this final rule. sradovich on DSK3GMQ082PROD with RULES E. Unfunded Mandates Reform Act When OSHA issued the final rule establishing standards for occupational exposure to beryllium, it reviewed the rule according to the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and E.O. 13132 (64 FR 43255 (Aug. 10, 1999)). OSHA concluded that the final rule did not meet the definition of a ‘‘Federal intergovernmental mandate’’ under the UMRA because OSHA standards do not apply to state or local governments except in states that voluntarily adopt State Plans. OSHA further noted that the rule did not impose costs of over $100 million per year on the private sector. (82 FR at 2634.) As discussed above in Section II.A of this preamble, OSHA has determined that this extension does not impose any costs on private-sector employers beyond those costs already identified in the final rule for beryllium in general industry. Because OSHA reviewed the total costs of the beryllium rule under UMRA, no further review of those costs is necessary. Therefore, for purposes of UMRA, OSHA certifies that this final rule does not mandate that state, local, or tribal governments adopt new, unfunded regulatory obligations of, or increase expenditures by the private sector by, more than $100 million in any year. F. Consultation and Coordination With Indian Tribal Governments OSHA reviewed this final rule in accordance with E.O. 13175 (65 FR 67249) and determined that it does not have ‘‘tribal implications’’ as defined in that order. This rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. VerDate Sep<11>2014 15:49 Aug 08, 2018 Jkt 244001 G. Legal Considerations The purpose of the OSH Act is ‘‘to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources.’’ 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. 29 U.S.C. 654(b), 655(b). A safety or health standard is a standard ‘‘which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment or places of employment.’’ 29 U.S.C. 652(8). A standard is reasonably necessary or appropriate within the meaning of Section 652(8) when a significant risk of material harm exists in the workplace and the standard would substantially reduce or eliminate that workplace risk. See Indus. Union Dep’t, AFL–CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980). In the beryllium rulemaking, OSHA made such a determination with respect to beryllium exposure in general industry (82 FR at 2479). This final rule does not impose any new requirements on employers. Therefore, this rule does not require an additional significant risk finding. See Edison Elec. Inst. v. OSHA, 849 F.2d 611, 620 (D.C. Cir. 1988). In addition to materially reducing a significant risk, a health standard must be technologically and economically feasible. United Steelworkers of Am., AFL–CIO–CLC v. Marshall, 647 F.2d 1189, 1251 (D.C. Cir. 1980) (OSHA must reduce risk ‘‘as far as it c[an] within the limits of [technological and economic] feasibility.’’). A standard is technologically feasible when the protective measures it requires already exist, when available technology can bring the protective measures into existence, or when that technology is reasonably likely to develop. See Am. Textile Mfrs. Inst. v. OSHA, 452 U.S. 490, 513 (1981); Am. Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991). And a rule is economically feasible if it does not ‘‘threaten massive dislocation to, or imperil the existence of, [an] industry.’’ United Steelworkers, 647 F.2d at 1265 (internal citations and quotation marks omitted). In 2017, OSHA found the beryllium standard to be technologically and economically feasible. (82 FR at 2471). This final rule is technologically and economically feasible as well because it does not require employers to implement any additional protective measures and does PO 00000 Frm 00038 Fmt 4700 Sfmt 9990 not impose any additional costs on employers. List of Subjects in 29 CFR Part 1910 Beryllium, Occupational safety and health. Signed at Washington, DC, on August 6, 2018. Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health. Amendments to Standards For the reasons stated in the preamble of this final rule, OSHA amends 29 CFR part 1910 as follows: PART 1910—OCCUPATIONAL SAFETY AND HEALTH STANDARDS Subpart Z—Toxic and Hazardous Substances 1. The authority citation for subpart Z of 29 CFR part 1910 is revised to read as follows: ■ Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor’s Order No. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), 5–2007 (72 FR 31160), 4–2010 (75 FR 55355), or 1–2012 (77 FR 3912); 29 CFR part 1911; and 5 U.S.C. 553, as applicable. Section 1910.1030 also issued under Public Law 106–430, 114 Stat. 1901. Section 1910.1201 also issued under 40 U.S.C. 5101 et seq. 2. Amend § 1910.1024 by revising paragraph (o)(2) to read as follows: ■ § 1910.1024 Beryllium. * * * * * (o) * * * (2) Compliance dates. (i) Obligations contained in paragraphs (c), (d), (g), (k), and (l) of this standard: March 12, 2018; (ii) Change rooms and showers required by paragraph (i) of this standard: March 11, 2019; (iii) Engineering controls required by paragraph (f) of this standard: March 10, 2020; and (iv) All other obligations of this standard: December 12, 2018. * * * * * [FR Doc. 2018–17106 Filed 8–8–18; 8:45 am] BILLING CODE 4510–26–P E:\FR\FM\09AUR1.SGM 09AUR1

Agencies

[Federal Register Volume 83, Number 154 (Thursday, August 9, 2018)]
[Rules and Regulations]
[Pages 39351-39360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17106]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket ID OSHA-H005C-2006-0870]
RIN 1218-AD19


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

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

ACTION: Final rule.

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SUMMARY: With this final rule, OSHA is extending the compliance date 
for certain ancillary requirements of the general industry beryllium 
standard to December 12, 2018. This standard protects workers from the 
hazards of beryllium exposure. OSHA has determined that this final rule 
will maintain essential safety and health protections for workers while 
OSHA prepares a Notice of Proposed Rulemaking (NPRM) to clarify 
specific provisions of the beryllium standard in accordance with a 
settlement agreement entered into with stakeholders. The December 12, 
2018, compliance date affects only certain ancillary provisions, i.e., 
methods of compliance, beryllium work areas, regulated areas, personal 
protective clothing and equipment, hygiene areas and practices, 
housekeeping, communication of hazards, and recordkeeping.

DATES: This rule is effective August 9, 2018.

ADDRESSES: For purposes of 28 U.S.C. 2112(a), OSHA designates Edmund 
Baird, Acting Associate Solicitor of Labor for Occupational Safety and 
Health, to receive petitions for review of the final rule. Contact the 
Acting Associate Solicitor at the Office of the Solicitor, Room S-4004, 
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 
20210; telephone: (202) 693-5445.

Citation Method

    In the docket for the beryllium rulemaking, found at http://www.regulations.gov, every submission was assigned a document 
identification (ID) number that consists of the docket number (OSHA-
H005C-2006-0870) followed by an additional four-digit number. For 
example, the document ID number for OSHA's Preliminary Economic 
Analysis and Initial Regulatory Flexibility Analysis is OSHA-H005C-
2006-0870-0426. Some document ID numbers include one or more 
attachments, such as the National Institute for Occupational Safety and 
Health (NIOSH) prehearing submission (see Document ID OSHA-H005C-2006-
0870-1671).
    When citing exhibits in the docket, OSHA includes the term 
``Document ID'' followed by the last four digits of the document ID 
number, the attachment number or other attachment identifier, if 
applicable, and page numbers (designated ``p.'' or ``Tr.'' for pages 
from a hearing transcript). In a citation that contains two or more 
document ID numbers, the document ID numbers are separated by 
semicolons.

FOR FURTHER INFORMATION CONTACT: 

[[Page 39352]]

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

SUPPLEMENTARY INFORMATION:

I. Explanation of Regulatory Action

A. Introduction

    This final rule extends the compliance date to December 12, 2018, 
for certain ancillary provisions of the beryllium rule for general 
industry, specifically provisions related to methods of compliance, 
beryllium work areas, regulated areas, personal protective clothing and 
equipment, hygiene areas and practices, housekeeping, communication of 
hazards, and recordkeeping. This rule does not affect the new 
permissible exposure limits (PELs) for general industry, construction, 
and shipyards or the general industry provisions for exposure 
assessment, respiratory protection, medical surveillance, and medical 
removal, which OSHA began enforcing on May 11, 2018. This final rule 
also does not affect the March 11, 2019, compliance date for the 
provisions on change rooms and showers in paragraph (i) (hygiene areas 
and practices) or the March 10, 2020, compliance date for 
implementation of the engineering controls required by paragraph (f) 
(methods of compliance). Finally, this rule does not affect the 
applicability of paragraph (a) (scope and application) or paragraph (b) 
(definitions). (Document ID 2156). OSHA has determined that this final 
rule will maintain essential safety and health protections for workers 
while OSHA prepares a Notice of Proposed Rulemaking (NPRM) to clarify 
specific provisions of the beryllium standard in accordance with a 
settlement agreement entered into with stakeholders. The revisions that 
OSHA plans to propose are designed to enhance worker protections by 
ensuring that the rule is well-understood and compliance is simple and 
straightforward.

B. Summary of Economic Impact

    OSHA has determined that this final rule is not economically 
significant. The rule revises 29 CFR 1910.1024(o)(2) to extend the 
deadline for compliance with certain provisions of the general industry 
beryllium standard until December 12, 2018. OSHA's final economic 
analysis shows that this compliance date extension will result in a net 
cost savings for the affected industries. At a 3 percent discount rate 
over 10 years, the extension will result in net annual cost savings of 
$0.76 million per year; at a discount rate of 7 percent over 10 years, 
the net annual cost savings is $1.73 million per year. When the 
Department uses a perpetual time horizon, the annualized cost savings 
of the final rule is $1.65 million with a 7 percent discount rate. The 
detailed final economic analysis, which includes more information on 
OSHA's cost/cost savings estimates for this final rule, can be found in 
the ``Agency Determinations'' section of this preamble. The rule is 
also an Executive Order (E.O.) 13771 deregulatory action.

C. Regulatory Background

    OSHA published a Notice of Proposed Rulemaking (NPRM) for 
occupational exposure to beryllium in the Federal Register on August 7, 
2015. (80 FR 47566). In the NPRM, the agency made a preliminary 
determination that employees exposed to beryllium and beryllium 
compounds at the previous PEL faced a significant risk to their health 
and that promulgating the NPRM's proposed standard would substantially 
reduce that risk. The NPRM invited interested stakeholders to submit 
comments on a variety of issues.
    OSHA held a public hearing in Washington, DC, on March 21 and 22, 
2016. The agency heard testimony from a number of organizations, 
including public health groups, industry representatives, and labor 
unions. Following the hearing, participants had an opportunity to 
submit additional evidence and data, as well as final briefs, 
arguments, and summations (Document ID 1756, Tr. 326).
    On January 9, 2017, after considering the entire record, OSHA 
issued a final rule with separate standards for general industry, 
shipyards, and construction, in order to tailor requirements to the 
circumstances found in these sectors. See 82 FR 2470. The general 
industry standard became effective on March 10, 2017, and the 
compliance date for most of the standard's provisions was March 12, 
2018. However, on March 2, 2018, OSHA issued a memorandum stating that 
no provisions of the general industry standard would be enforced until 
May 11, 2018.\1\ Two subsequent enforcement delays followed--the first, 
on May 9, 2018, delayed enforcement until June 25, 2018, of some of the 
general industry standard's ancillary provisions (related to methods of 
compliance, beryllium work areas, regulated areas, personal protective 
clothing and equipment, hygiene areas and practices, housekeeping, 
communication of hazards, and recordkeeping). The second delay, on June 
21, 2018, postponed enforcement of those provisions until August 9, 
2018.
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    \1\ On May 7, 2018, OSHA published a Direct Final Rule (DFR) 
which became effective July 6, 2018. (83 FR 19936; 83 FR 31045). The 
DFR clarified the definitions of ``beryllium work area,'' 
``emergency,'' ``dermal contact,'' and ``beryllium contamination.'' 
It also clarified OSHA's intent with respect to provisions for 
disposal and recycling of materials that contain or are contaminated 
with beryllium, and with respect to provisions that the agency 
intends to apply only where skin can be exposed to materials 
containing at least 0.1 percent beryllium by weight.
---------------------------------------------------------------------------

    Following promulgation of the final rule in January 2017, several 
general industry employers, including Materion Corporation 
(``Materion''), challenged the rule in federal court. As part of a 
settlement agreement with Materion,\2\ OSHA is planning to propose 
revisions to certain provisions in the general industry standard and to 
rely on its de minimis policy while the rulemaking is pending so that 
employers may comply with the proposed revisions to the standard 
without risk of a citation.\3\ The revisions OSHA plans to propose 
under the settlement agreement are generally designed to clarify the 
standard in response to stakeholder questions or to simplify 
compliance, while in all cases maintaining a high degree of protection 
from the adverse health effects of beryllium exposure (Document ID 
2156).
---------------------------------------------------------------------------

    \2\ The Materion settlement agreement can be viewed on 
regulations.gov (Document ID 2156): https://www.regulations.gov/document?D=OSHA-H005C-2006-0870-2156.
    \3\ The OSH Act allows the Secretary of Labor to prescribe 
procedures for issuing notices instead of citations for ``de minimis 
violations'' that have no direct or immediate relationship to safety 
or health. 29 U.S.C. 658(a). OSHA's de minimis policy is set forth 
in its Field Operations Manual, available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-160.pdf. OSHA considers it a de 
minimis condition when an employer ``complies with a proposed OSHA 
standard or amendment or a consensus standard rather than with the 
standard in effect at the time of the inspection and the employer's 
action clearly provides equal or greater employee protection.'' De 
minimis conditions do not result in citations or penalties. See 29 
CFR 1903.15(c) (``Penalties shall not be proposed for de minimis 
violations which have no direct or immediate relationship to safety 
or health.''); See Employer Rights and Responsibilities Following a 
Federal OSHA Inspection, https://www.osha.gov/Publications/osha3000.pdf.
---------------------------------------------------------------------------

D. Summary of Public Comments and Explanation of Final Action

    On June 1, 2018, OSHA published a proposed rule to extend the 
compliance

[[Page 39353]]

date to December 12, 2018 for certain ancillary requirements of the 
general industry beryllium standard. (83 FR 25536). OSHA explained that 
the proposed extension would give the agency time to prepare and 
publish a planned NPRM to amend the general industry standard before 
employers would be required to comply with certain ancillary provisions 
affected by that NPRM. That in turn would allow employers to comply 
with the proposed provisions without risk of a citation until any such 
changes are finalized (Document ID 2156).
    In the proposal, OSHA requested comments from the public on both 
the duration and scope of the proposed compliance date extension (83 FR 
25539). OSHA asked commenters to include a rationale for any concerns 
they had with the proposal, as well as for any alternatives they 
suggested. OSHA also requested comments on the ``Agency 
Determinations'' section of the proposal, including the preliminary 
economic analysis and other regulatory effects on employers and 
workers.
    OSHA received ten comments in response to the proposal (Document 
IDs 2159-2168). The comments generally focused on three issues arising 
from the proposed extension: (1) Whether to extend the compliance date, 
(2) the scope of any extension, and (3) the appropriate duration of any 
extension. Below we examine these three issues, in that order--by 
summarizing the comments and then explaining the agency's 
determinations based on the record as a whole. We then address two 
miscellaneous comments.
1. Extension of the Compliance Date for Certain Ancillary Provisions in 
the General Industry Standard
    Five commenters supported the agency's proposed extension of the 
compliance date for ancillary provisions affected by OSHA's 
forthcoming, substantive NPRM. (See Document ID 2161; 2165-2168). For 
example, Century Aluminum Company stated that ``the affected portions 
of the Standard should be delayed to allow OSHA time to prepare and 
publish the substantive proposed rule so that employers do not take 
unnecessary and costly measures.'' (Document ID 2165, p.1). It added 
that the proposed delay would also limit confusion among employers and 
other stakeholders. (Document ID 2165, p.1). Materion similarly 
observed that the proposed extension would address the concern that 
beginning enforcement of provisions affected by the NPRM could result 
in employer confusion or improper implementation of the relevant 
provisions of the rule. (Document ID 2161, p.2). Airborn Inc., Mead 
Metals, Inc., and the National Association of Manufacturers (NAM) 
supported Materion's comments and registered their own support for the 
extension. (Document ID 2166, p.1; 2167, p.1; 2168, pp.1-2). These 
three stakeholders agreed that an extension is ``necessary to give OSHA 
enough time to draft and publish'' the forthcoming, substantive NPRM. 
(Document ID 2166, p.1; 2167, p.1; 2168, p.1). NAM added that the 
proposed extension was ``another positive step toward a more effective 
general industry standard for the benefit of workers.'' (Document ID 
2168, p.2). NAM also expressed its appreciation for ``OSHA's 
recognition of employers' reasonable and practical concerns regarding 
compliance in anticipation of [the forthcoming, substantive NPRM].'' 
(Document ID 2168, p.2).
    Four other commenters, the United Steelworkers (USW), Public 
Citizen, UNITE HERE! International Union (UNITE HERE), and the National 
Employment Law Project (NELP), opposed the proposed extension. 
(Document ID 2160; 2162-2164). These commenters argued that the 
extension would be unnecessary and unjustified, and would delay the 
implementation of important protections for workers. (See, e.g., 
Document ID 2160, pp. 1-2). For example, Public Citizen maintained that 
``[e]xpeditious implementation of the ancillary provisions in general 
industry is absolutely necessary to enhance the benefits of the newly 
adopted PEL, ultimately providing another level of protection in 
occupational settings.'' (Document ID 2162, p.3). It argued that 
delaying implementation would allow employers to continue to expose 
workers to unsafe levels of beryllium, ensuring ``the occurrence of 
even more cases of beryllium sensitization, chronic beryllium disease, 
. . . . lung cancer,'' and other adverse health effects. (Document ID 
2162, p.3).
    OSHA understands Public Citizen's concerns; the agency's goal is to 
protect the health and safety of workers. That is why OSHA has narrowly 
tailored the scope of the compliance date extension to cover only 
provisions that will be affected by the forthcoming, substantive NPRM. 
OSHA is enforcing, and will continue to enforce, many of the provisions 
that provide critical protection to general industry employees. This 
final rule does not affect critical worker protections afforded by 
enforcement of the revised lower PEL, the new short-term exposure limit 
(STEL), and requirements for exposure assessment, respiratory 
protection, medical surveillance, and medical removal.
    Moreover, in adopting this final rule, OSHA recognizes that the 
goal of worker protection can be frustrated where employers do not 
clearly understand OSHA's requirements or how to implement them. OSHA 
appreciates the concerns of those stakeholders who note that, until 
OSHA releases its planned NPRM, employers may lack clarity regarding 
how to implement and comply with the beryllium standard. OSHA has 
determined that it would be undesirable, for both the agency and those 
it regulates, to begin enforcement of certain ancillary provisions of 
the standard that will likely be affected by the upcoming rulemaking--a 
scenario that could result in employers taking unnecessary measures to 
comply with provisions to which OSHA intends to propose clarifications.
    NELP and Public Citizen also asserted that the proposed compliance-
date extension conflicted with OSHA's finding that a comprehensive 
standard is needed to protect workers exposed to beryllium. (Document 
ID 2162; 2163). OSHA disagrees with that assertion that this extension 
is in conflict with OSHA's findings. OSHA believes that a comprehensive 
standard is critically important for the protection of workers exposed 
to beryllium in general industry settings. However, the benefits of a 
comprehensive standard may not be fully realized where employers do not 
clearly understand, and have trouble implementing, its requirements. 
OSHA finds that this limited, short-term extension of the compliance 
date for certain ancillary requirements of the standard will give the 
agency the time necessary to ensure that employers have clear direction 
on how to protect workers exposed to beryllium. Additionally, as noted 
previously, OSHA will continue to maintain essential safety and health 
protections for workers through ongoing enforcement of many of the 
beryllium standard's key provisions. Enforcement of other OSHA 
standards, such as the Hazard Communication Standard (29 CFR 1910.1200) 
and Access to Employee Exposure and Medical Records (29 CFR 1910.1020) 
will also provide other important protections for workers in general 
industry. In particular, employers are, and will remain, obligated to 
label hazardous chemicals containing beryllium, ensure that safety data 
sheets are readily available, and train workers on the hazards of 
beryllium in accordance with the Hazard Communication Standard. OSHA 
encourages employers to review their hazard communication programs,

[[Page 39354]]

employee training, and other hazard communication practices (such as 
workplace labeling) to ensure continued compliance with the Hazard 
Communication Standard.
    USW and UNITE HERE also questioned OSHA's justification for the 
proposed extension of compliance dates. USW objected to OSHA's 
preliminary determination that beginning enforcement of the ancillary 
provisions identified in the proposal before publication of the 
substantive NPRM could result in employer confusion or improper 
implementation of the relevant provisions of the rule. (Document ID 
2160, p.2). USW argued that employers could avoid confusion by 
complying with the revisions that are identified in the settlement 
agreement. (Document ID 2160, p.2). In addition, USW and UNITE HERE 
claimed that OSHA proposed this extension to ``demonstrate that it has 
taken deregulatory action.'' (Document ID 2160, p.2; 2164).
    OSHA does not agree with the USW that this extension of compliance 
dates is unnecessary because employers can rely on the regulatory 
revisions identified in the settlement agreement before publication of 
the substantive NPRM. The settlement agreement contains only a redlined 
version of the relevant regulatory text. It does not include a full 
summary and explanation of the revisions, in which OSHA explains the 
meaning of the proposed revisions to the regulatory text and, in some 
cases, provides further information and examples to aid compliance. For 
example, OSHA is planning to propose changes to paragraph (j)(3), to 
address reuse of beryllium-containing materials in addition to disposal 
and recycling, because in some cases materials may be directly reused 
without being recycled. In the summary and explanation for the proposed 
rule, OSHA will explain the intended meaning of the term ``reuse'' and 
the circumstances under which the cleaning and bagging requirements 
included in paragraph (j)(3) would apply to the reuse of materials that 
contain beryllium.
    OSHA also disagrees with USW and UNITE HERE's characterization of 
the rationale for this extension. Although OSHA noted in the proposal 
that the proposed extension was ``expected to be an . . . E.O.[ ] 13771 
deregulatory action,'' it included that statement to carry out its 
obligations under E.O. 13771, not to justify the rulemaking. As stated 
above, the reason for this rulemaking is to provide OSHA sufficient 
time to promulgate proposed clarifications to the general industry 
standard, so that employers can easily understand and properly 
implement the standard in order to keep workers healthy and safe.
    Based on the record as a whole, OSHA finds the arguments in favor 
of the proposed extension of compliance dates to be more persuasive 
than those against the proposal. Therefore, the agency has decided to 
adopt the proposed extension of compliance dates to allow time for the 
preparation and publication of the planned, substantive NPRM.
2. Scope of the Extension
    Having determined that an extension of the compliance date for 
certain ancillary provisions in the beryllium standard for general 
industry is appropriate, OSHA next addresses comments regarding which 
provisions will be included in the extension. In the NPRM, OSHA 
proposed extending the compliance date for the following provisions: 
Beryllium work areas and regulated areas (paragraph (e)), written 
exposure control plans (paragraph (f)(1)), personal protective clothing 
and equipment (paragraph (h)), hygiene areas and practices (paragraph 
(i) except for change rooms and showers), housekeeping (paragraph (j)), 
communication of hazards (paragraph (m)), and recordkeeping (paragraph 
(n)). OSHA requested comments on the proposed scope of the extension.
    Several commenters objected to the scope of the proposed 
compliance-date extension. For example, USW asserted that the 
underlying settlement agreement only ``affects beryllium products whose 
content is less [than] 1% by weight, but which does not generate 
exposures above the PEL.'' (Document ID 2160, p. 1). Therefore, USW 
argued, ``[t]here is no basis for staying ancillary provisions of the 
standard in workplaces where exposures to beryllium are above the 
PEL.'' (Document ID 2160, pp. 1-2). UNITE HERE also asserted that the 
proposed extension of compliance dates should be limited to provisions 
that OSHA intends to change. (Document ID 2164). It further argued that 
``there is no justification to delay any provision of the standard to 
the extent that it would regulate exposures above the PEL.'' (Document 
ID 2164). NELP similarly commented that the proposal was ``broad and 
needlessly pushes back compliance dates of important worker protections 
to a highly toxic substance.'' (Document ID 2163, p.1).
    Century Aluminum, however, argued that OSHA should not extend the 
compliance date for only certain portions of affected paragraphs, as 
proposed by some of the other commenters. Beyond making it clear that 
the compliance dates for engineering and work practice controls (March 
10, 2020) and change rooms and showers (March 11, 2019) remain 
unchanged, Century Aluminum asserted that differentiating by portions 
of affected paragraphs would lead to substantial confusion among 
employers and other stakeholders.\4\
---------------------------------------------------------------------------

    \4\ Materion commented that the proposed extension of compliance 
dates did not cover all of the provisions that could be affected by 
the forthcoming, substantive NPRM. (Document ID 2161, p.1). 
Specifically, Materion noted that the NPRM could also affect the 
requirements for medical surveillance and change rooms. (Document ID 
2161, p.1 (citing Document ID 2156, Appendix B)). However, Materion 
did not ask OSHA to make any changes to the scope of the extension 
based on its comment. Rather, its comment appeared to serve as a 
recommendation to other employers to ``take careful note of the 
proposed changes identified in the settlement agreement, and to take 
them into account when implementing their compliance programs for 
medical surveillance and change rooms.'' (Document ID 2161, p.1). 
OSHA notes that, until the NPRM is published, employers may comply 
with the medical surveillance provisions as clarified by the 
definitions of ``CBD diagnostic center,'' ``chronic beryllium 
disease,'' and ``confirmed positive'' that OSHA has agreed to 
propose, which are available in the docket (Document ID 2156) and in 
OSHA's interim enforcement guidance (https://www.osha.gov/laws-regs/standardinterpretations/2018-05-09).
---------------------------------------------------------------------------

    OSHA agrees with Century Aluminum's assessment that an extension of 
compliance dates that differentiated between individual subparagraphs 
of the affected ancillary provisions, as suggested by USW and UNITE 
HERE, would create substantial confusion.\5\ In addition, OSHA does not 
find that the extension should be limited to only those situations 
where beryllium exposures do not exceed the PEL. Contrary to USW's 
assertion, the substantive changes OSHA intends to propose to the 
beryllium standard for general industry do apply to processes that 
generate exposures above the PEL, and they are not limited to products 
whose beryllium content is less than one percent by weight. For 
example, changes to provisions for methods of compliance, personal 
protective clothing and equipment, housekeeping, and hygiene areas and 
practices involve all beryllium-containing materials where exposures 
may occur. Therefore,

[[Page 39355]]

OSHA's rationale for the extension of compliance dates applies to all 
general industry workplaces within the scope of the beryllium standard, 
including those where beryllium exposures may exceed the PEL. Finally, 
as to UNITE HERE's comment that the extension should be limited to 
provisions that OSHA intends to change in the final standard, OSHA has 
reexamined each of the provisions covered by the proposed extension and 
confirmed that the final extension of compliance dates applies only to 
paragraphs affected by the upcoming, substantive NPRM.
---------------------------------------------------------------------------

    \5\ OSHA recognizes that three paragraphs, i.e., the paragraphs 
related to change rooms and showers in paragraph (i) and the 
requirement in paragraph (f)(2) for the implementation for 
engineering controls, have different compliance dates than those set 
for other paragraphs in paragraphs (i) and (f). However, this is a 
function of the way the compliance date provisions were structured 
in the January 9, 2017, final rule, and those dates were set based 
on specific findings made by the agency in that rulemaking. The 
agency believes employers have had ample notice of when the agency 
intends to begin enforcement of these particular provisions.
---------------------------------------------------------------------------

    After considering these comments, OSHA has decided to retain the 
scope of the extension as proposed. The extension of compliance dates, 
therefore, will apply to the following provisions: Beryllium work areas 
and regulated areas (paragraph (e)), written exposure control plans 
(paragraph (f)(1)), personal protective clothing and equipment 
(paragraph (h)), hygiene areas and practices (paragraph (i) except for 
change rooms and showers), housekeeping (paragraph (j)), communication 
of hazards (paragraph (m)), and recordkeeping (paragraph (n)).
3. Duration of the Extension
    Having determined that it is appropriate to extend the compliance 
date for certain ancillary provisions in the general industry beryllium 
standard, the remaining issue is the duration of the extension. In the 
NPRM, OSHA proposed extending the relevant compliance date until 
December 12, 2018. OSHA requested comments on the duration of the 
extension.
    Very few commenters expressly opined on the duration of the 
proposed compliance date extension, and those who did disagreed as to 
whether a longer or shorter extension was appropriate. For example, 
Century Aluminum asked OSHA to consider extending the relevant 
compliance date for an additional three months, to March 11, 2019. 
(Document ID 2165, pp. 1-2). It argued that ``[a]n additional three 
months would give OSHA the time to receive comments on the substantive 
proposed rule and publish a final rule.'' (Document ID 2165, p.1). It 
further stated that a longer extension would prevent confusion and 
unnecessary costs:

    A delay until the substantive rulemaking is completed would also 
prevent a situation where employers comply with the de minimis 
policy, only to have to change practices if the final rule does not 
adopt all of the revisions in the proposed rule. The costs of such a 
midstream about-face could be significant. Moreover, aligning the 
compliance date with March 11, 2019, which is the compliance date 
for the change rooms and showers required by paragraph (i) of the 
Standard, would simplify compliance efforts and limit confusion 
among affected entities. Finally, the additional few months would 
allow state plans time to consider whether to adopt any revisions 
OSHA makes to the Standard without causing significant disruption in 
their respective states.

(Document ID 2165, p.2). USW and UNITE HERE, on the other hand, 
recommended that the proposed extension continue until thirty days 
after the substantive NPRM is issued or December 12, 2018, whichever 
comes first. USW maintained that the potentially shorter extension 
would allow time for employers to conform their practices to the 
content of the NPRM, while providing workers with necessary protections 
as soon as possible.
    After considering these comments, OSHA is not persuaded that it 
should alter the duration of the proposed extension. Although OSHA 
appreciates Century Aluminum's points, the agency must balance 
arguments in favor of a longer extension against the concerns raised by 
commenters, such as USW, that an unnecessarily lengthy extension could 
deny general industry workers certain protections afforded to them 
under the affected ancillary provisions. Moreover, although OSHA 
understands Century Aluminum's concern about the potential increase in 
costs that could result if the provisions adopted as a result of the 
planned substantive rulemaking do not mirror those proposed in the 
substantive NPRM, the agency cannot, at this time, estimate with much 
certainty when any final rule will be promulgated.\6\ OSHA also rejects 
USW and UNITE HERE's call for compliance dates based on the publication 
of the substantive NPRM; a timeline based on a currently uncertain date 
would be more difficult and confusing for employers and workers. The 
agency finds that the proposed compliance date of December 12, 2018, 
appropriately balances the concerns raised by stakeholders, will 
provide the agency sufficient time to draft and publish the NPRM, and 
will give employers sufficient time to comply. Therefore, OSHA has 
decided to extend the compliance date for the identified provisions 
until December 12, 2018, as proposed.
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    \6\ Although not suggested by Century Aluminum, OSHA also notes 
that an indefinite extension of compliance deadlines, i.e., a 
compliance date determined by the date the substantive rulemaking is 
completed, is likely to result in greater, not less, confusion.
---------------------------------------------------------------------------

4. Miscellaneous Comments
    OSHA also received two comments that did not directly relate to the 
proposed extension of compliance dates. The first, from Materion, is 
related to a statement the agency made in the proposal. (Document ID 
2161, p.2). Specifically, OSHA stated that it ``expects to publish the 
planned, substantive NPRM well in advance of the compliance dates'' for 
change rooms and showers (March 11, 2019) and engineering controls 
(March 10, 2020). Materion maintained that ``it is reasonable and 
necessary for OSHA to not only publish the NPRM, but complete its final 
changes to the General Industry Standard for beryllium well ahead of 
March 11, 2019, since the revisions OSHA plans to propose are primarily 
clarifying or simplifying in nature . . . and designed to enhance 
worker protections by ensuring that the rule is well-understood and 
compliance is simple and straightforward.'' (Document ID 2161, p.2 
(citing Document ID 2156)). Materion further commented that 
``[e]mployees will benefit most by completion of all changes as soon as 
possible, and certainly before early 2019.'' (Document ID 2161, p.2).
    OSHA understands Materion's concern, and agrees that prompt 
finalization of any substantive revisions to the general industry 
standard for beryllium would be ideal. Therefore, the agency will 
proceed with the substantive rulemaking as expeditiously as possible. 
However, OSHA will also need to ensure that stakeholders have a 
meaningful opportunity to comment on the forthcoming proposal and that 
the agency has adequate time to consider and address stakeholder 
comments. Consequently, at this time the agency does not have a 
specific target date for conclusion of the substantive rulemaking.
    The second comment that was not directly related to the proposed 
extension of compliance dates was submitted by an anonymous commenter, 
who indicated strong support for the beryllium rule generally. 
(Document ID 2159). The commenter submitted summary statistics on 
relationships between beryllium exposure and the prevalence of 
beryllium sensitization and chronic beryllium disease in a cohort at a 
beryllium precision machining facility and stated that the results 
support the control of workplace beryllium exposures. However, this 
commenter did not address how the data or conclusions provided related 
to the proposed extension of compliance dates

[[Page 39356]]

or otherwise offer any comments on the specific terms of the proposed 
extension. To the extent that this commenter intended to argue that the 
proposed extension of compliance dates would have a detrimental impact 
on worker health, that comment is addressed above in response to 
similar concerns expressed by USW, Public Citizen, UNITE HERE, and 
NELP.

II. Agency Determinations

A. Final Economic Analysis and Regulatory Flexibility Certification

    Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 
U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 
1532(a)) require that OSHA estimate the benefits, costs, and net 
benefits of regulations, and analyze the effects of certain rules that 
OSHA promulgates. Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility.
    This final rule is not an ``economically significant regulatory 
action'' under E.O. 12866 or UMRA, or a ``major rule'' under the 
Congressional Review Act (5 U.S.C. 801 et seq.). Neither the benefits 
nor the costs of this final rule would exceed $100 million in any given 
year. This final rule to extend the compliance date for certain 
ancillary provisions in the beryllium standard would result in cost 
savings. Cost savings arise in this context because a delay in incurred 
costs for employers would allow them to invest the funds (and earn an 
expected return at the going interest rate) that would otherwise have 
been spent to comply with the beryllium standard. OSHA did not receive 
any comments on the preliminary economic analysis OSHA prepared for the 
proposal.
    At a discount rate of 3 percent, this final compliance-date 
extension yields annualized cost savings of $0.76 million per year for 
10 years. At a discount rate of 7 percent, this final rule yields an 
annualized cost savings of $1.73 million per year for 10 years. When 
the Department uses a perpetual time horizon to allow for cost 
comparisons under E.O. 13771 (82 FR 9339, Jan. 30, 2017), the 
annualized cost savings of this final compliance date extension are 
$1.65 million at a discount rate of 7 percent.
1. Changes to the Baseline: Updating to 2017 Dollars and Removing 
Familiarization Costs; Discussion of Overhead Costs
    More than one year has elapsed since promulgation of the beryllium 
standards on January 9, 2017, so OSHA has updated the projected costs 
for general industry contained in the final economic analysis that 
accompanied the rule from 2015 to 2017 dollars, using the latest 
Occupational Employment Statistics (OES) wage data (for 2016) and 
inflating them to 2017 dollars. Additionally, although familiarization 
costs were included in the cost estimates developed in the 2017 
economic analysis, OSHA expects that those costs have already been 
incurred by affected employers, and is excluding them from its analysis 
of the cost savings associated with this extension of compliance dates. 
Thus, baseline costs for this final economic analysis (FEA) are the 
projected costs from the 2017 economic analysis, updated to 2017 
dollars, less familiarization costs.
    OSHA notes that it did not include an overhead labor cost in the 
2017 analysis, and has not accounted for such costs in this FEA. There 
is not one broadly accepted overhead rate, and the use of overhead to 
estimate the marginal costs of labor raises a number of issues that 
should be addressed before applying overhead costs to analyze the cost 
implications of any specific regulation. There are several ways to look 
at the cost elements that fit the definition of overhead, and there is 
a range of overhead estimates currently used within the federal 
government--for example, the Environmental Protection Agency has used 
17 percent,\7\ and government contractors have reportedly used 50 
percent for on-site (i.e., company site) overhead.\8\ Some overhead 
costs, such as advertising and marketing, may be more closely 
correlated with output than with labor. Other overhead costs vary with 
the number of new employees. For example, rent or payroll processing 
costs may change little with the addition of 1 employee in a 500-
employee firm, but may change substantially with the addition of 100 
employees. If an employer is able to rearrange current employees' 
duties to implement a rule, then the marginal share of overhead costs, 
such as rent, insurance, and major office equipment (e.g., computers, 
printers, copiers), would be very difficult to measure with accuracy.
---------------------------------------------------------------------------

    \7\ Cody Rice, U.S. Environmental Protection Agency, ``Wage 
Rates for Economic Analyses of the Toxics Release Inventory 
Program,'' June 10, 2002 (document ID 2025). This analysis itself 
was based on a survey of several large chemical manufacturing 
plants: Heiden Associates, Final Report: A Study of Industry 
Compliance Costs Under the Final Comprehensive Assessment 
Information Rule, Prepared for the Chemical Manufacturers 
Association, December 14, 1989.
    \8\ Grant Thornton LLP, 2017 Government Contractor Survey, 
https://www.grantthornton.com/-/media/content-page-files/public-sector/pdfs/surveys/2018/2017-government-contractor-survey. 
According to Grant Thornton's 2017 Government Contractor Survey, on-
site rates are generally higher than off-site rates, because the on-
site overhead pool includes the facility-related expenses incurred 
by the company to house the employee, while no such expenses are 
incurred or allocated to the labor costs of direct charging 
personnel who work at the customer site.
---------------------------------------------------------------------------

    If OSHA had included an overhead rate when estimating the marginal 
cost of labor, without further analyzing an appropriate quantitative 
adjustment, and adopted for these purposes an overhead rate of 17 
percent on base wages, the cost savings of this final rule would 
increase to approximately $0.82 million per year, at a discount rate of 
3 percent, or to approximately $1.87 million per year, at a discount 
rate of 7 percent.\9\ The addition of 17-percent overhead on base wages 
would therefore increase cost savings by approximately 8 percent above 
the primary estimate at either discount rate.
---------------------------------------------------------------------------

    \9\ OSHA used an overhead rate of 17 percent on base wages in a 
sensitivity analysis in the final economic analysis (OSHA-2010-0034-
4247, p. VII-65) in support of the March 25, 2016, final respirable 
crystalline silica standards (81 FR 16286) and in the preliminary 
economic analysis in support of the June 27, 2017, beryllium 
proposal for the construction and shipyard sectors (82 FR 29201).
---------------------------------------------------------------------------

2. Changes to the Standard: Nine-Month Extension of the Compliance Date 
for Some Ancillary Provisions
    The general industry beryllium standard went into effect on May 20, 
2017, with most compliance obligations beginning on March 12, 2018. 
OSHA is finalizing the extension of the compliance date for specific 
provisions until December 12, 2018. The compliance date for the updated 
PELs, as well as for the exposure assessment, respiratory protection, 
medical surveillance, and medical removal requirements, and for 
provisions for which the standard already establishes compliance dates 
in 2019 and 2020, do not change as a result of this rule. The 
applicability of the scope and application paragraph and the 
definitions also do not change as a result of this rule, except that 
employers may comply with the definitions of ``CBD diagnostic center,'' 
``chronic beryllium disease,'' and ``confirmed positive'' that will be 
proposed in the later substantive rulemaking NPRM (Document ID 2156). 
The purpose of this final rule is to provide time for OSHA to issue a 
planned NPRM that will affect the parts of the standard that are 
covered by this compliance-date extension before that compliance date 
is reached, so that OSHA may rely on its de minimis policy and 
employers may

[[Page 39357]]

comply with the proposed provisions without risk of a citation.
    OSHA estimated the cost savings of the final rule relative to 
baseline costs, where baseline costs reflect the costs of compliance 
without the final rule's changes to the compliance date. OSHA 
calculated the cost savings by lagging the first-year costs for the 
affected provisions by nine months and then calculating the present 
value of the delayed costs over the 10 years following the new 
compliance date. Annualizing the present value of cost savings over ten 
years, the result is an annualized cost savings of $0.76 million per 
year at a discount rate of 3 percent, or $1.73 million per year at a 
discount rate of 7 percent. When the Department uses a perpetual time 
horizon to allow for cost comparisons under E.O. 13771, the annualized 
cost savings of this compliance date extension is $1.65 million at a 
discount rate of 7 percent.
    The undiscounted cost savings by provision and year are presented 
below in Table 1. As shown in Table 1, and described elsewhere in this 
final rule, the cost savings described in this FEA reflect savings only 
for provisions covered by the compliance date extension. OSHA estimated 
no cost savings for the PELs, exposure assessment, respiratory 
protection, medical surveillance, or medical removal provisions (as 
they are not covered by the extension), or for any provisions for which 
the rule already establishes compliance dates in 2019 (change rooms/
showers) or 2020 (engineering controls).\10\ The cost savings by year 
and discount rate are shown below in Table 2.
---------------------------------------------------------------------------

    \10\ Note that the labor costs associated with time spent 
changing clothes are generally triggered by wearing personal 
protective equipment, as required by paragraph (h) of the beryllium 
standard. OSHA is extending the compliance date for paragraph (h). 
Thus, employers will not incur the labor costs associated with 
changing time for personal protective equipment until December 12, 
2018, so OSHA is generally accounting for those cost savings in this 
FEA. OSHA has not accounted for any cost savings related to the use 
of head covers, however. Head covers may be used to prevent 
contamination of employees' hair, potentially precluding the need 
for showers under paragraph (i)(3) of the standard. Because this 
final rule does not extend the compliance date for showers, OSHA has 
not accounted for head covers for purposes of estimating the cost 
savings associated with this final rule.
---------------------------------------------------------------------------

3. Economic and Technological Feasibility
    In the final economic analysis for the 2017 general industry 
beryllium standard, OSHA concluded that the rule was technologically 
feasible. OSHA has determined that this final rule is also 
technologically feasible because it does not change any of the rule's 
substantive requirements, and, if adopted, would simply give employers 
more time to comply with some of the rule's ancillary requirements. 
Furthermore, OSHA previously concluded that the beryllium standard was 
economically feasible. As this final rule does not impose any new 
substantive requirements, and results in cost savings, OSHA has 
concluded that the final rule is also economically feasible.
4. Effects on Benefits
    The planned rulemaking to revise the general industry beryllium 
standard is intended to be responsive to questions and concerns 
expressed by stakeholders regarding ancillary provisions of the rule. 
Safety and health programs can be ineffective if employers and other 
stakeholders are unclear about OSHA requirements. Hence, by addressing 
stakeholder questions and concerns, the planned rulemaking will make it 
more likely that the regulated community will realize the full benefits 
of the rule, as estimated in the 2017 final economic analysis. Although 
it is not possible to quantify the effect of stakeholder uncertainty on 
the projected benefits of the rule, OSHA believes that the short-term 
loss of benefits associated with this extension of initial compliance 
dates will be more than offset in the long term by the benefits 
resulting from the agency's effort to clarify the rule. OSHA has 
determined that this final rule will maintain essential safety and 
health protections for workers.
5. Certification of No Significant Impact on a Substantial Number of 
Small Entities
    This final rule will result in cost savings for affected employers, 
and those savings fall below levels that could be said to have a 
significant positive economic impact on a substantial number of small 
entities.\11\ Therefore, OSHA certifies that this final rule does not 
have a significant impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \11\ OSHA investigated whether the projected cost savings would 
exceed 1 percent of revenues or 5 percent of profits for small 
entities and very small entities for every industry. To determine if 
this was the case, OSHA returned to its original regulatory 
flexibility analysis (2017) for small entities and very small 
entities. OSHA found that the cost savings of this final rule are 
such a small percentage of revenues and profits for every affected 
industry that OSHA's criteria would not be exceeded for any 
industry.
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[[Page 39359]]



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

B. Paperwork Reduction Act

    This final rule does not change the information collections already 
approved by the Office of Management and Budget (OMB). OMB approved the 
information collection request for the general industry beryllium 
standard under OMB Control Number 1218-0267, with an expiration date of 
April 30, 2020. OSHA received no comments on the information collection 
request in response to the proposal.

C. Federalism

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

D. State Plans

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

[[Page 39360]]

Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, 
Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto 
Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, 
and Wyoming. Connecticut, Illinois, Maine, New Jersey, New York, and 
the Virgin Islands have OSHA-approved State Plans that apply to state 
and local government employees only.
    The new amendments to OSHA's beryllium final rule do not impose any 
new requirements on employers. Accordingly, State Plans do not have to 
amend their standards to extend the compliance dates for their 
beryllium rules, but they may do so within the limits of this final 
rule.

E. Unfunded Mandates Reform Act

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

F. Consultation and Coordination With Indian Tribal Governments

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

G. Legal Considerations

    The purpose of the OSH Act is ``to assure so far as possible every 
working man and woman in the nation safe and healthful working 
conditions and to preserve our human resources.'' 29 U.S.C. 651(b). To 
achieve this goal, Congress authorized the Secretary of Labor to 
promulgate and enforce occupational safety and health standards. 29 
U.S.C. 654(b), 655(b). A safety or health standard is a standard 
``which requires conditions, or the adoption or use of one or more 
practices, means, methods, operations, or processes, reasonably 
necessary or appropriate to provide safe or healthful employment or 
places of employment.'' 29 U.S.C. 652(8). A standard is reasonably 
necessary or appropriate within the meaning of Section 652(8) when a 
significant risk of material harm exists in the workplace and the 
standard would substantially reduce or eliminate that workplace risk. 
See Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 
(1980). In the beryllium rulemaking, OSHA made such a determination 
with respect to beryllium exposure in general industry (82 FR at 2479). 
This final rule does not impose any new requirements on employers. 
Therefore, this rule does not require an additional significant risk 
finding. See Edison Elec. Inst. v. OSHA, 849 F.2d 611, 620 (D.C. Cir. 
1988).
    In addition to materially reducing a significant risk, a health 
standard must be technologically and economically feasible. United 
Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1251 (D.C. 
Cir. 1980) (OSHA must reduce risk ``as far as it c[an] within the 
limits of [technological and economic] feasibility.''). A standard is 
technologically feasible when the protective measures it requires 
already exist, when available technology can bring the protective 
measures into existence, or when that technology is reasonably likely 
to develop. See Am. Textile Mfrs. Inst. v. OSHA, 452 U.S. 490, 513 
(1981); Am. Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 
1991). And a rule is economically feasible if it does not ``threaten 
massive dislocation to, or imperil the existence of, [an] industry.'' 
United Steelworkers, 647 F.2d at 1265 (internal citations and quotation 
marks omitted). In 2017, OSHA found the beryllium standard to be 
technologically and economically feasible. (82 FR at 2471). This final 
rule is technologically and economically feasible as well because it 
does not require employers to implement any additional protective 
measures and does not impose any additional costs on employers.

List of Subjects in 29 CFR Part 1910

    Beryllium, Occupational safety and health.

    Signed at Washington, DC, on August 6, 2018.
Loren Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

    For the reasons stated in the preamble of this final rule, OSHA 
amends 29 CFR part 1910 as follows:

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

Subpart Z--Toxic and Hazardous Substances

0
1. The authority citation for subpart Z of 29 CFR part 1910 is revised 
to read as follows:

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


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


Sec.  1910.1024   Beryllium.

* * * * *
    (o) * * *
    (2) Compliance dates. (i) Obligations contained in paragraphs (c), 
(d), (g), (k), and (l) of this standard: March 12, 2018;
    (ii) Change rooms and showers required by paragraph (i) of this 
standard: March 11, 2019;
    (iii) Engineering controls required by paragraph (f) of this 
standard: March 10, 2020; and
    (iv) All other obligations of this standard: December 12, 2018.
* * * * *

[FR Doc. 2018-17106 Filed 8-8-18; 8:45 am]
 BILLING CODE 4510-26-P