Revising the Beryllium Standard for General Industry, 42582-42628 [2020-10678]

Download as PDF 42582 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations XI. Summary and Explanation of the Final Rule List of Subjects for 29 CFR Part 1910 Authority DEPARTMENT OF LABOR Occupational Safety and Health Administration Citation Method 29 CFR Part 1910 [Docket No. OSHA–2018–0003] RIN 1218–AD20 Revising the Beryllium Standard for General Industry Occupational Safety and Health Administration (OSHA), Labor. ACTION: Final rule. AGENCY: OSHA is amending its existing general industry standard for occupational exposure to beryllium and beryllium compounds to clarify certain provisions and simplify or improve compliance. The revisions in this final rule are designed to maintain or enhance worker protections overall by ensuring that the rule is well understood and compliance is more straightforward. DATES: This final rule becomes effective on September 14, 2020. ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), OSHA designates Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety and Health, to receive petitions for review of the final rule. Contact the 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. FOR FURTHER INFORMATION CONTACT: Press inquiries: Mr. Frank Meilinger, OSHA Office of Communications, Occupational Safety and Health Administration; telephone: (202) 693– 1999; email: meilinger.francis2@dol.gov. General information and technical inquiries: Ms. Maureen Ruskin, Directorate of Standards and Guidance, Occupational Safety and Health Administration; telephone: (202) 693– 1950; email: ruskin.maureen@dol.gov. SUPPLEMENTARY INFORMATION: SUMMARY: Table of Contents I. Executive Summary II. Events Leading to the Final Rule III. Legal Considerations IV. Final Economic Analysis and Regulatory Flexibility Act Certification (FEA) V. Office of Management and Budget (OMB) Review Under the Paperwork Reduction Act of 1995 VI. Federalism VII. State Plans VIII. Unfunded Mandates Reform Act IX. Consultation and Coordination With Indian Tribal Governments X. Environmental Impacts VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 In the docket for this rulemaking found at https://www.regulations.gov, every submission was assigned a document identification (ID) number that consists of the docket number (OSHA–2018–0003) followed by an additional four-digit number. For example, the document ID number for the proposed rule is OSHA–2018–0003– 0016. Some document ID numbers include one or more attachments (see, e.g., Document ID OSHA–2018–0003– 0026). When citing exhibits in the OSHA– 2018–0003 docket in this preamble, OSHA includes the term ‘‘Document ID’’ followed by the last four digits of the document number; the attachment number or other attachment identifier, if necessary for clarity; and page numbers (designated ‘‘p.’’ or ‘‘pp.’’). In a citation that contains two or more document ID numbers, the document ID numbers are separated by semi-colons. For example, a citation referring to National Jewish Health’s comments and the first attachment to Materion Brush, Inc.’s comments would be indicated as follows: (Document ID 0022, pp. X–X; 0038–A1, p. X). Occasionally this preamble refers to documents located in the rulemaking dockets that were used for previous beryllium rulemaking activities, including the 2017 final rule. When citing exhibits in other dockets, OSHA includes the term ‘‘Document ID’’ followed by the full document number. For example, this preamble cites a publication by Armstrong et al. (2014), titled ‘‘Migration of beryllium via multiple exposure pathways among work processes in four different facilities,’’ designated Document ID OSHA–H005C–2006–0870–0502. The exhibits in the docket (and the other beryllium-rulemaking dockets cited in this preamble), including public comments, supporting materials, meeting transcripts, and other documents, are listed on https:// www.regulations.gov. All exhibits are listed in the docket index on https:// www.regulations.gov, but some exhibits (e.g., copyrighted material) are not available to read or download from that website. All materials in the docket are available for inspection at the OSHA Docket Office, Room N–3508, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone (202) 693–2350. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 I. Executive Summary On January 9, 2017, OSHA published a final rule on Occupational Exposure to Beryllium and Beryllium Compounds (82 FR 2470). This rule created health standards for beryllium exposure in the general industry (29 CFR 1910.1024), construction (29 CFR 1926.1124), and shipyards (29 CFR 1915.1024) sectors. On December 11, 2018, OSHA published a Notice of Proposed Rulemaking (NPRM) in which the agency proposed various amendments to the beryllium standard for general industry (83 FR 63746). With the proposed revisions, OSHA sought to clarify certain provisions and simplify or improve compliance with the beryllium standard for general industry. In this final rule, OSHA is finalizing the majority of the changes proposed in the NPRM, with some revisions intended to address concerns raised by stakeholders during the comment period. OSHA believes that these changes to the standard will maintain safety and health protections for workers and will further enhance worker protections by ensuring that the standard is well-understood. The changes to the final standard for general industry are fully discussed in Section XI, Summary and Explanation of the Final Rule. Broadly, OSHA proposed to add one definition and modify five existing terms in paragraph (b), Definitions; to amend paragraph (f), Methods of compliance; paragraph (h), Personal protective clothing and equipment; paragraph (i), Hygiene areas and practices; paragraph (j), Housekeeping; paragraph (k), Medical surveillance; paragraph (m), Communication of hazards; and paragraph (n), Recordkeeping; and to replace the 2017 final standard’s Appendix A with a new appendix designed to supplement the proposed definition of beryllium work area. OSHA is finalizing these provisions as proposed, with the following exceptions. First, OSHA is revising the definition of confirmed positive to state that the findings of two abnormal, one abnormal and one borderline, or three borderline results need to occur from beryllium lymphocyte proliferation tests (BeLPTs) conducted within a three-year period. This differs from the definition proposed in the 2018 NPRM, which would have required that any combination of test results specified in the definition must be obtained within the 30-day follow-up test period required after a first abnormal or borderline BeLPT test result. Second, OSHA is modifying the proposed paragraph (j)(3), which requires employers to take certain actions when E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations transferring materials that contain at least 0.1 percent beryllium by weight or that are contaminated with beryllium outside a plant for the purpose of disposal, recycling, or reuse, to clarify that only transfers outside of a plant, including between facilities owned by the same employer, are subject to the labeling requirements of paragraph (m)(3). Third, in paragraphs (k)(2)(iii) and (iv), OSHA is modifying the proposed provisions pertaining to an employer’s obligation to offer a medical examination after an employee is exposed to beryllium in an emergency. Fourth, OSHA is amending proposed paragraph (k)(7)(i) to require that an examination at a chronic beryllium disease (CBD) diagnostic center be scheduled within 30 days of the employer receiving certain types of documentation, listed in paragraph (k)(7)(i)(A) and (B), that trigger evaluation for CBD. OSHA is further revising proposed paragraph (k)(7) by adding a new provision, paragraph (k)(7)(ii), which clarifies that, as part of the evaluation at the CBD diagnostic center, the employer must ensure that the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center and to state that if any tests deemed appropriate by the physician are not available at the CBD diagnostic center, they may be performed at another location that is mutually agreed upon by the employer and the employee. For a full explanation of comments received and OSHA’s reasoning for these revisions, see Section XI, Summary and Explanation of the Final Rule. OSHA’s examination of the technological and economic feasibility of this final rule is presented in the Final Economic Analysis and Regulatory Flexibility Analysis (FEA), in Section IV of this preamble. As explained there, OSHA finds that none of the revisions would impose any new employer obligations or increase the overall cost of compliance, while some of the revisions in this final rule will clarify and simplify compliance in such a way that results in cost savings. OSHA also finds that none of the revisions would require any new controls or other technology. OSHA therefore concludes that the final rule is both economically and technologically feasible. Further, this final rule is considered to be an Executive Order (E.O.) 13771 deregulatory action. Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this rule not a ‘‘major rule,’’ as defined by 5 U.S.C. 804(2). VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 42583 II. Events Leading to the Final Rule On January 9, 2017, OSHA published the final rule Occupational Exposure to Beryllium and Beryllium Compounds (2017 final rule) in the Federal Register (82 FR 2470).1 Therein, OSHA concluded that employees exposed to beryllium and beryllium compounds at the preceding permissible exposure limits (PELs) were at significant risk of material impairment of health, specifically chronic beryllium disease (CBD) and lung cancer. The agency further determined that limiting employee exposure to an 8-hour timeweighted average (TWA) PEL of 0.2 mg/ m3 would reduce this significant risk to the maximum extent feasible. Therefore, the 2017 final rule adopted a TWA PEL of 0.2 mg/m3. In addition to the revised PEL, the 2017 final rule established a new short-term exposure limit (STEL) of 2.0 mg/m3 over a 15-minute sampling period and an action level of 0.1 mg/m3 as an 8-hour TWA, along with a number of ancillary provisions intended to provide additional protections to employees. The ancillary provisions included requirements for exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication, and recordkeeping that are similar to those found in other OSHA health standards. The 2017 final rule went into effect on May 20, 2017, and OSHA began enforcing the PEL and the general industry standard’s provisions for exposure assessment, respiratory protection, medical surveillance, and medical removal on May 11, 2018. See Updated Interim Enforcement Guidance for the Beryllium Standards, available at https://www.osha.gov/laws-regs/ standardinterpretations/2018-12-11. The majority of the general industry standard’s other provisions became enforceable on December 12, 2018, with compliance obligations for showers and change rooms following on March 11, 2019 (83 FR 39351). OSHA began enforcing the general industry requirements for engineering controls on March 10, 2020. In response to concerns raised by stakeholders following the publication of the 2017 final rule, OSHA published a direct final rule (DFR) in the Federal Register on May 7, 2018 (83 FR 19936), amending the text of the beryllium standard for general industry to clarify OSHA’s intent with respect to certain terms in the standard, including the definition of beryllium work area (BWA), the definition of emergency, and the meaning of the terms dermal contact and beryllium contamination (see 83 FR at 19938). The DFR also clarified OSHA’s intent with respect to provisions for disposal and recycling and with respect to provisions that the agency intended to apply only where skin can be exposed to materials containing at least 0.1% beryllium by weight (83 FR at 19938). Because the agency did not receive any significant adverse comments, OSHA published a Federal Register notice confirming the effective date of the DFR as July 6, 2018, and withdrawing the companion NPRM (83 FR 31045 (July 3, 2018)). On December 11, 2018, OSHA published an NPRM in the Federal Register (83 FR 63746) in which the agency proposed to further amend the beryllium standard for general industry.2 The proposal sought to clarify certain provisions–with proposed changes designed to facilitate application of the standard consistent with the intent of the 2017 final rule– and to simplify or improve compliance, preventing costs that may flow from misinterpretation or misapplication of the standard. OSHA requested public comment on the proposed changes and provided stakeholders 60 days to submit comments. OSHA received 22 comments before the comment period closed on February 11, 2019. 1 In the 2017 final rule, OSHA issued three separate beryllium standards—general industry, shipyards, and construction. This final rule amends only the general industry standard. Therefore, neither this Events Leading to the Final Rule section nor the remainder of the preamble will include information about the other two standards. 2 OSHA stated in the NPRM that the agency believed that the standard as modified by the proposal would provide equivalent protection to the existing standard; and OSHA would therefore accept compliance with the standard, as modified by the proposal, as compliance with the standard while the rulemaking was pending. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 III. Legal Considerations The purpose of the Occupational Safety and Health Act of 1970 (‘‘the OSH Act’’ or ‘‘the Act’’), 29 U.S.C. 651 et seq., is to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources. 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor (‘‘the Secretary’’) to promulgate occupational safety and health standards pursuant to notice and comment rulemaking. See 29 U.S.C. 655(b). An occupational safety or health standard is a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe E:\FR\FM\14JYR3.SGM 14JYR3 42584 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations or healthful employment and places of employment. 29 U.S.C. 652(8). The Act also authorizes the Secretary to ‘‘modify’’ or ‘‘revoke’’ any occupational safety or health standard, 29 U.S.C. 655(b), and under the Administrative Procedure Act, regulatory agencies generally may revise their rules if the changes are supported by a reasoned analysis, see Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). ‘‘While the removal of a regulation may not entail the monetary expenditures and other costs of enacting a new standard, and accordingly, it may be easier for an agency to justify a deregulatory action, the direction in which an agency chooses to move does not alter the standard of judicial review established by law.’’ Id. The Act provides that in promulgating health standards dealing with toxic materials or harmful physical agents, such as the January 9, 2017, final rule regulating occupational exposure to beryllium, the Secretary must set the standard that most adequately assures, to the extent feasible and on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. 29 U.S.C. 655(b)(5). The Supreme Court has held that before the Secretary can promulgate any permanent health or safety standard, he must make a threshold finding that significant risk is present and that such risk can be eliminated or lessened by a change in practices. See Indus. Union Dep’t, AFL–CIO v. Am. Petroleum Inst. (‘‘Benzene’’), 448 U.S. 607, 641–42 (1980) (plurality opinion). OSHA need not make additional findings on risk for this revised rule because OSHA previously determined that the beryllium standard addresses a significant risk that can be eliminated or lessened by a change in practices, see 82 FR 2545–52, and the changes and clarifications in this final rule do not affect that determination. See, e.g., Pub. Citizen Health Research Grp. v. Tyson, 796 F.2d 1479, 1502 n.16 (D.C. Cir. 1986) (rejecting the argument that OSHA must ‘‘find that each and every aspect of its standard eliminates a significant risk’’). OSHA standards must also be both technologically and economically feasible. See United Steelworkers of Am., AFL–CIO–CLC v. Marshall (‘‘Lead I’’), 647 F.2d 1189, 1264 (D.C. Cir. 1980). The Supreme Court has defined feasibility as ‘‘capable of being done.’’ Am. Textile Mfrs. Inst. v. Donovan VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 (‘‘Cotton Dust’’), 452 U.S. 490, 508–09 (1981). The courts have further clarified that a standard is technologically feasible if OSHA proves a reasonable possibility, ‘‘within the limits of the best available evidence . . . that the typical firm will be able to develop and install engineering and work practice controls that can meet the [standard] in most of its operations.’’ Lead I, 647 F.2d at 1272. With respect to economic feasibility, the courts have held that ‘‘[a] standard is feasible if it does not threaten massive dislocation to or imperil the existence of the industry.’’ Id. at 1265 (internal quotation marks and citations omitted). OSHA exercises significant discretion in carrying out its responsibilities under the Act. Indeed, ‘‘[a] number of terms of the statute give OSHA almost unlimited discretion to devise means to achieve the congressionally mandated goal’’ of ensuring worker safety and health. See Lead I, 647 F.2d at 1230 (citation omitted). Thus, where OSHA has chosen some measures to address a significant risk over other measures, parties challenging the OSHA standard must ‘‘identify evidence that their proposals would be feasible and generate more than a de minimis benefit to worker health.’’ N. Am.’s Bldg. Trades Unions v. OSHA, 878 F.3d 271, 282 (D.C. Cir. 2017). Although OSHA is required to set standards ‘‘on the basis of the best available evidence,’’ 29 U.S.C. 655(b)(5), its determinations are ‘‘conclusive’’ if supported by ‘‘substantial evidence in the record considered as a whole,’’ 29 U.S.C. 655(f). Similarly, as the Supreme Court noted in Benzene, OSHA must look to ‘‘a body of reputable scientific thought’’ in making determinations, but a reviewing court must ‘‘give OSHA some leeway where its findings must be made on the frontiers of scientific knowledge.’’ Benzene, 448 U.S. at 656. When there is disputed scientific evidence in the record, OSHA must review the evidence on both sides and ‘‘reasonably resolve’’ the dispute. Tyson, 796 F.2d at 1500. The ‘‘possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s finding from being supported by substantial evidence.’’ N. Am.’s Bldg. Trades Unions, 878 F.3d at 291 (quoting Cotton Dust, 452 U.S. at 523) (alterations omitted). As the D.C. Circuit has noted, where ‘‘OSHA has the expertise we lack and it has exercised that expertise by carefully reviewing the scientific data,’’ a dispute within the scientific community is not occasion for the reviewing court to take sides about which view is correct. Tyson, 796 F.2d at 1500. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 Finally, because section 6(b)(5) of the Act explicitly requires OSHA to set health standards that eliminate risk ‘‘to the extent feasible,’’ OSHA uses feasibility analysis rather than costbenefit analysis to make standardssetting decisions dealing with toxic materials or harmful physical agents. 29 U.S.C. 655(b)(5). An OSHA standard in this area must be technologically and economically feasible–and also cost effective, which means that the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection–but OSHA cannot choose an alternative that provides a lower level of protection for workers’ health simply because it is less costly. See Int’l Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994); see also Cotton Dust, 452 U.S. at 513 n.32. In Cotton Dust, the Court explained that Congress itself had defined the appropriate relationship between costs and benefits by prioritizing the ‘‘benefit’’ of worker health above all other considerations, save those that would make this ‘‘benefit’’ unachievable. The Court further stated that any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be inconsistent with the command set forth in section 6(b)(5). See Cotton Dust, 452 U.S. at 509. Thus, while OSHA estimates the costs and benefits of its proposed and final rules, in part to ensure compliance with requirements such as those in Executive Orders 12866 and 13771, these calculations do not form the basis for the agency’s regulatory decisions. IV. Final Economic Analysis and Regulatory Flexibility Act Certification (FEA) A. Summary of Economic Impact This rule amends OSHA’s existing general industry standard for occupational exposure to beryllium and beryllium compounds (29 CFR 1910.1024) to clarify certain provisions and simplify or improve compliance. OSHA’s final economic analysis shows that these changes will result in unquantifiable cost savings, largely due to the prevention of misinterpretation and misapplication of the standard. In promulgating the 2017 final rule, OSHA determined that the beryllium rule was both technologically and economically feasible. See 82 FR at 2582–86, 2590–96, Summary of the Final Economic Analysis. The changes herein are intended to align the rule more clearly with the intent of the 2017 final rule. Because OSHA has E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations determined that this final rule will decrease the costs of compliance by preventing misinterpretation and misapplication of the standard, and would require no new controls or other technology, OSHA has also determined that the rule is both technologically and economically feasible. Because this final rule only clarifies the existing beryllium standard or makes minor revisions that will generally aid in compliance, the revised beryllium standard will maintain safety and health protections for workers. And, to the extent this final rule helps employers avoid misapplication of the beryllium standard’s requirements and hence achieves greater compliance with the standard’s intended meaning, there will be increased protection for workers. B. Final Economic Analysis and Regulatory Flexibility Act Certification Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601–612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)) require that OSHA estimate the benefits, costs, and net benefits of regulations, and analyze the impacts of certain rules that OSHA promulgates. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This final rule is not a ‘‘significant regulatory action’’ under Executive Order 12866 or the UMRA. Neither the benefits nor the costs of this final rule would exceed $100 million in any given year. On the contrary, the possible effects of each provision on costs and benefits appear to be relatively small, and OSHA has not been able to quantify them. Nor has OSHA been able to quantify the cost savings it expects from preventing misinterpretation and misapplication of the standard. However, OSHA does expect that this final rule will increase understanding and compliance with the standard and, therefore, the agency expects the rule to result in some, unquantifiable cost savings. Moreover, and as discussed above, OSHA expects this final rule will maintain safety and health protections for workers. 1. Final Determinations Regarding Costs and Cost Savings Attributable to the Final Rule In the Preliminary Economic Analysis and Regulatory Flexibility Act Certification (PEA) in the 2018 NPRM, OSHA considered whether each of the proposed changes could affect the costs and, if so, how those costs might be affected (83 FR at 63760–65). For the purposes of the preliminary analysis, VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 the agency divided the proposed changes into two groups: (1) Proposed clarifications and (2) proposed revisions. The ‘‘proposed clarifications’’ were those that were solely intended to clarify provisions and would not alter the requirements and scope of the rule (83 FR at 63760–61). The items OSHA identified as clarifications included the addition of a definition of beryllium sensitization to paragraph (b); minor changes to the definitions of CBD diagnostic center and chronic beryllium disease in paragraph (b); minor changes to the written exposure control plan provisions in paragraphs (f)(1)(i)(D) and (f)(1)(ii)(B); a minor change in the PPE removal provision of paragraph (h)(2)(i); minor changes to provisions for the cleaning of PPE in paragraph (h)(3)(iii); minor changes to the cleaning of PPE upon entry to eating or drinking areas in paragraph (i)(4)(ii); and minor changes to provisions for employee information and training in paragraphs (m)(4)(ii)(A) and (m)(4)(ii)(E) (83 FR at 63760–61). The ‘‘proposed revisions,’’ on the other hand, were those that would go beyond clarification and alter certain requirements of the beryllium standard (83 FR at 63761). The proposed provisions that OSHA identified as revisions included changes to the definitions of beryllium work area, confirmed positive, and dermal contact with beryllium in paragraph (b); a change to the requirements for washing facilities in paragraph (i)(1); a change to the requirements for provision of change rooms in paragraph (i)(2); changes to the requirements pertaining to disposal and recycling in paragraph (j)(3); a change to the requirements for medical surveillance following an employee’s exposure to beryllium in an emergency in paragraph (k)(2); revision to provisions for evaluation at a CBD diagnostic center in paragraph (k)(7)(i); a change to the requirements for warning labels in paragraph (m)(3); and changes to the requirements for recordkeeping in paragraphs (n)(1)(ii)(F), (n)(3)(ii)(A), and (n)(4)(i). After carefully reviewing the proposed clarifications and revisions, OSHA preliminarily determined that their net total effect would result in potential cost savings, mainly from improving employer understanding and facilitating application of the rule (83 FR at 63760–61). OSHA preliminarily identified a new potential cost, which would result from the proposed changes as a whole: A de minimis cost for the time employers would need to become familiar with the revised portions of this final rule (83 FR at 63761, 63765). Viewing all the proposed changes as a whole, OSHA explained that it PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 42585 preliminarily anticipated that the proposed provisions’ net effect would result in some cost savings (83 FR at 63761). OSHA invited comment on all aspects of the PEA, including these preliminary determinations (83 FR at 63760–62, 63764–65). Stakeholders either agreed with or did not comment on OSHA’s analysis of potential costs and costs savings attributable to the vast majority of the proposed clarifications and revisions (e.g., Document ID 0026, pp. 1–2; 0038, pp. 21, 26, 32). The only objections the agency received related to two of the four proposed paragraphs that OSHA is revising from the proposal in the final rule: (1) The definition of the term confirmed positive; and (2) the requirement related to examinations at CBD diagnostic centers (Document ID 0021, p. 4; 0022, pp. 5–6). Those comments, and OSHA’s final determination that each of the four paragraphs that OSHA is revising from the proposal will result in small and unquantifiable cost savings, are discussed in detail below. OSHA has also examined the record concerning the proposed clarifications and revisions that OSHA has finalized without change. As noted above, stakeholders either agreed with or did not comment on OSHA’s analysis of potential costs and costs savings attributable to these proposed changes. Therefore, after carefully considering all the comments received and the remainder of the record, OSHA affirms its preliminary determination that these clarifications and revisions are likely to result in cost savings, largely from improving employer understanding and facilitating application of the rule. OSHA also affirms its preliminary determination that the only potential new costs are de minimis costs for the time employers would need to become familiar with the revised portions of this final rule. In summary, OSHA finds that both the four paragraphs that OSHA is revising from the proposal and the remainder of the proposed clarifications and revisions that OSHA is finalizing without change in the final rule will result in potential cost savings mainly attributable to improving employer understanding and facilitating application of the rule, as well as preventing costs that would follow from misunderstanding the standard. OSHA expects that the cost savings attributable to these changes will offset the de minimis employer familiarization costs, resulting in a net result of cost savings. Therefore, OSHA finds that this final rule is likely to result in cost savings. E:\FR\FM\14JYR3.SGM 14JYR3 42586 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations 2. Analysis of Costs and Costs Savings Attributable to Provisions in the Final Rule That Differ From Those in the Proposal In this section the agency discusses the four changes in the final rule that differ from the proposal: The definition of confirmed positive in paragraph (b), Definitions; a clarification to inter-plant transfers in paragraph (j), Housekeeping; and two changes to paragraph (k), Medical Surveillance: Requirements related to CBD diagnostic centers and requirements for medical examination at termination of employment. In all cases, as stated above, the agency has determined these will have de minimis cost or cost savings implications. Definition of Confirmed Positive. The 2017 final rule did not specify a time limit within which the BeLPT tests that contribute toward a finding of ‘‘confirmed positive’’ must occur. In the 2018 NPRM, OSHA proposed to modify the definition of confirmed positive to require that the qualifying test results be obtained within one testing cycle (including the 30-day follow-up test period required after a first abnormal or borderline BeLPT test result), rather than arguably over an unlimited time period that might have led to false positives that could needlessly concern workers and their families, could lead workers to undergo unnecessary testing, and would not enhance worker protections. In the PEA, OSHA explained that the exact effect of the proposed change was uncertain as it is unknown how many employees would have a series of BeLPT results associated with a confirmed positive finding (two abnormal results, one abnormal and one borderline result, or three borderline results) over an unlimited period of time, but would not have any such combination of results within a single testing cycle (83 FR at 63761–62). OSHA preliminarily concluded that the proposed change would not increase compliance costs and would incidentally yield some cost savings by lessening the likelihood of false positives (83 FR at 63762). The agency invited comment on its preliminary conclusion (83 FR at 63762). As discussed in Section XI, Summary and Explanation for paragraph (b), a number of stakeholders commented that requiring results within a 30-day testing cycle could create logistical challenges, for example due to repeat testing requirements or for businesses in remote areas with limited healthcare facilities (Document ID 0022, p. 4; 0021, p. 4; 0024, p. 1; 0033, p. 5; 0027, p. 3). National Jewish Health (NJH) also commented that removing the time VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 frame of 30 days for confirming abnormal results would allow for employee workplace protection and clinical evaluation referral at a lower cost and with less logistical burden (Document ID 0022, p. 5). Stakeholders’ logistical concerns and NJH’s comment about costs reflect a misunderstanding of the proposed change. As explained in more detail in the Summary and Explanation for paragraph (b), OSHA did not intend that the initial and any follow-up tests had to be completed and interpreted within 30 days. Rather, the agency intended that the test results be obtained during one cycle of testing, that is, an initial or periodic examination followed by follow-up testing conducted within 30 days of an abnormal or borderline result. For example, if an employee received a borderline BeLPT result at his or her periodic examination, paragraph (k)(3)(ii)(E) would require the employer to offer a follow-up BeLPT within 30 days of the test results. If the follow-up BeLPT result was also borderline, paragraph (k)(3)(ii)(E) would again require the employer to offer a follow-up BeLPT within 30 days of the first follow-up test’s results. If that second follow-up was borderline or abnormal, the employee would have been confirmed positive under the proposal because all of the tests that ‘‘confirmed’’ the results were triggered by the initial test. In other words, OSHA did not intend to suggest that the proposal would have required employers to conduct all of the tests or obtain the confirming results within a single 30-day period. In this final rule, OSHA has revised the definition of confirmed positive to specify that the findings of two abnormal, one abnormal and one borderline, or three borderline results must be obtained from BeLPTs conducted within a three-year period. OSHA determined that this revision strikes the appropriate balance between the shorter time period for confirmation in the proposal and the unspecified, arguably indefinite, time period of the original definition. As explained in the Summary and Explanation section, the final three-year period will capture the identification of sensitized workers enrolled in medical surveillance. OSHA finds that the addition of a specific time period to the text of the final rule will decrease the possibility of a misinterpretation of the provision’s time frame that could lead to false positive results. As with the proposed revisions to this definition, OSHA finds that the exact effect of this change is uncertain because it is unknown how many PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 employees would have a series of BeLPT results associated with a confirmed positive finding (two abnormal results, one abnormal and one borderline result, or three borderline results) over an unlimited period of time, but would not have any such combination of results within a threeyear testing cycle, though it is likely to be small. As discussed in Section XI, Summary and Explanation of the Final Rule, NJH reported that in a group of 194 CBD patients in their care, the length of time between abnormal results ranged from 14 days to 5.8 years, with a 95th percentile of 2.9 years. This suggests that the vast majority of individuals who will have two abnormal BeLPT tests in the course of medical surveillance are likely to be confirmed positive within the three-year window of time OSHA is establishing in the definition of confirmed positive. The Summary and Explanation section notes further that a three-year testing cycle is consistent with practices and recommendations of the medical community, pointing to the increasing likelihood that a confirmed positive finding over longer periods of time will be a false-positive and lead to costly further medical exams with no benefit. Thus, OSHA concludes that this change will not increase compliance costs and will incidentally yield some cost savings by lessening the likelihood of false positives. Disposal, Recycling, and Reuse. Paragraph (j)(3) of the previous standard (29 CFR 1910.1024(j)(3)) addresses disposal and recycling of materials that contain beryllium in concentrations of 0.1 percent by weight or more or that are contaminated with beryllium. In the 2018 NPRM, OSHA proposed to modify this paragraph in a number of ways—all of which the agency preliminarily found would not increase the costs of complying with the standard and may also result in unquantifiable savings to employers by preventing misinterpretation or misapplication of the rule (83 FR at 63762–63). Stakeholders did not offer any comments objecting to this preliminary determination. With the exception of one minor clarification to the regulatory text, discussed below, OSHA is adopting all of the proposed revisions to paragraph (j)(3) in this final rule. After reviewing the record as a whole and having received no evidence or comment to the contrary, the agency reaffirms its preliminary determination that the proposed revisions to paragraph (j)(3) that are being adopted in this final rule will result in some cost savings from increased employer understanding. E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations OSHA has made one change to the proposed provisions in paragraph (j)(3) in this final rule. When employers transfer certain materials to another party for disposal, recycling, or reuse, proposed paragraph (j)(3)(i) would have required employers to label the materials in accordance with paragraph (m)(3) of the standard. As explained in the Summary and Explanation for paragraph (j)(3), a comment alerted the agency to a potential ambiguity in this proposed text. Specifically, OSHA realized that the phrase ‘‘to another party’’ could be read to suggest that transfers between two facilities owned by the same employer are exempted from the labeling requirements in paragraph (j)(3)(i). That was not the agency’s intent in the proposal. To eliminate any ambiguity on this point, OSHA revised paragraph (j)(3)(i) in the final rule to strike the phrase ‘‘to another party’’ and add the ‘‘except for intra-plant transfers’’ language that is found in paragraphs (j)(3)(ii) and (iii). As with the proposed changes to paragraphs (j)(3)(ii) and (iii), which clarified that those paragraphs’ requirements did not apply to intraplant transfers, OSHA finds that this proposed change is not a substantive change to the standard. It is simply clarifying OSHA’s original intent that all transfers outside of a plant, including between facilities owned by the same employer, are subject to the labeling requirements of paragraph (m)(3). Since this change does not alter the requirements of the standard, it will not affect the costs of compliance with the standard. Therefore, OSHA finds that none of the changes this final rule makes to paragraph (j)(3) will increase the costs of complying with the standard. Medical Surveillance. In the 2018 NPRM, OSHA proposed two sets of changes to paragraph (k). The first set of changes proposed is in paragraph (k)(2), which specifies when and how frequently medical examinations are to be offered to those employees covered by the medical surveillance program. Paragraph (k)(2)(i)(B) of the previous standard required the employer to provide a medical examination within 30 days after determining that the employee shows signs or symptoms of CBD or other beryllium-related health effects or that the employee has been exposed to beryllium in an emergency. Based on stakeholder feedback and other evidence indicating that the 30day period in the previous standard may be insufficient to detect beryllium sensitization in individuals exposed one time in an emergency, OSHA proposed VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 removing the requirement for a medical examination within 30 days of exposure to beryllium during an emergency, under paragraph (k)(2)(i)(B), and adding paragraph (k)(2)(iv), which would require the employer to offer a medical examination at least one year after but no more than two years after the employee is exposed to beryllium during an emergency (83 FR at 63757). In the PEA, OSHA preliminarily determined that the net cost impact of these proposed changes would be slight, with some possible cost savings. Specifically, OSHA explained that, in the FEA for the 2017 final rule, the agency estimated that emergencies would affect a very small number of employees in a given year, likely less than 0.1 percent of the affected population, representing a small addition to the costs of medical surveillance for the standard (Document ID OSHA–H005C–2006–0870–2042, p. V–196). Under the 2017 final rule, some employees might have required two examinations to be confirmed positive: A first test cycle within the initial 30day period and a second BeLPT at least two years later. Under the 2018 NPRM, OSHA expected that more of the employees who became sensitized from exposure in an emergency would be confirmed positive through a single testing cycle because that test would have been administrated one to two years following the emergency. The agency anticipated that the proposed change would result in the elimination of one premature testing, which would ensure better detection for more employees and incidentally trigger some cost savings (83 FR at 63764).3 To the extent that lengthening the time period in which the test must be offered from within 30 days to between one and two years leads to earlier confirmed positive results (within two years, as opposed to within two years plus 30 days), OSHA preliminarily found that the proposed change could slightly accelerate costs to the employer for earlier CBD diagnostic center referral and medical removal protection. OSHA estimated that the proposed change would affect a very small percentage of an already very small population. The agency preliminarily determined that the proposed revision would only potentially change the timing of the already-required BeLPT, CBD diagnostic center referral, and medical removal protection (83 FR at 63764, 63764 n.5). 3 Assuming that this initial analysis does not result in a confirmed positive diagnosis, that employee would not be confirmed positive until a second test two years later under the current rule. PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 42587 In summary, OSHA preliminarily found that the end result of the proposed changes to paragraph (k)(2) from a cost perspective would be that the cost savings from the potential avoidance of a premature BeLPT within 30 days following an emergency would likely be largely canceled out by the acceleration of the cost of the CBD diagnostic center evaluation and medical removal protection. Therefore, OSHA preliminarily determined that the net cost impact of the proposed changes would be slight, with some possible cost savings (83 FR at 63764). Stakeholders did not submit any comments related to OSHA’s preliminary determinations regarding potential costs of the proposed revisions to paragraph (k)(2). In sum, after considering the record as a whole, OSHA finds that its preliminary estimates were correct: A small change in costs, with possible cost savings. Nevertheless, as discussed in more detail in the Summary and Explanation for paragraph (k), Medical Surveillance, some stakeholders expressed concerns about possible delays in medical consultations and examinations and lack of employee knowledge of potential health effects, and one stakeholder argued that employees who terminate employment before receiving the post-emergency examination might not receive an examination at all after being exposed in an emergency (Document ID 0023, pp. 2–3; 0024, p. 2; 0027, p. 4). OSHA is revising paragraphs (k)(2) in the final rule in two ways to address these concerns. First, OSHA has added two sub-provisions under paragraph (k)(2)(iv) to provide for post-emergency examination timing for two separate groups of employees. Final paragraph (k)(2)(iv)(A) focuses on the very small group of employees who are exposed in an emergency but have not received a medical examination under paragraph (k)(1)(i) within the previous two years. The requirement for these employees is similar to the requirement contained in the previous standard; i.e., under the final standard, the employer must provide these employees with a medical examination within 30 days of the date of the emergency. Because the final standard treats these employees similarly to the manner in which the previous standard treated all employees exposed in an emergency, OSHA does not expect that there will be any change in cost attributable to this change. In other words, for those employees who have not had a medical examination within the past two years there is no change in protocol and, thus, no change in costs. E:\FR\FM\14JYR3.SGM 14JYR3 42588 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations Final paragraph (k)(2)(iv)(B) focuses on employees who are exposed during an emergency, but have recently received an examination. Under this new provision, if an employee has received a medical examination under paragraph (k)(1)(i) within the previous two years, then the employer would be required to offer that employee a medical examination that meets the requirements of the standard at least one year but no more than two years after the employee was exposed to beryllium in an emergency. Because this provision treats employees who have recently received an examination similarly to the manner in which the proposal would have treated all employees exposed in an emergency, OSHA expects that this change will result in a fraction of the small cost savings preliminarily estimated in the proposal. Second, to address concerns that delaying the medical examination to at least one year and no more than two years following the emergency may result in employees not receiving a postemergency examination if their employment ends soon after exposure during an emergency, OSHA is revising paragraph (k)(2)(iii) to require that each employee who is exposed in an emergency and has not received an examination since the emergency exposure is provided an examination at the time employment is terminated. Because paragraph (k)(2)(iii) already requires an examination at termination if there has not been one within the last six months due to any of the standard medical exam triggers, including emergency exposure, OSHA expects that this change will affect an extremely small group of employees. This revision, however, will ensure that all employees with emergency exposure are offered a medical exam, even under this very narrow set of circumstances. The baseline of costs and cost savings of this analysis is the previous rule, which already required a medical exam within 30 days of emergency exposure. Thus, OSHA does not expect that this change will have any cost implications. In summary, OSHA finds that this final rule’s revisions to paragraph (k)(2) will result in slight cost savings. No costs or costs savings are attributable to new paragraph (k)(2)(iv)(A), which treats employees exposed in an emergency who have not received a medical examination within the previous two years pursuant to paragraph (k)(1)(i) similarly to how all employees exposed in an emergency were treated under the previous standard. The end result of final paragraph (k)(2)(iv)(B), however, will be cost savings from the potential VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 avoidance of a premature BeLPT that are largely offset by the acceleration of the cost of the CBD diagnostic center evaluation and medical removal protection. OSHA does not attribute any costs or cost savings to result from the revisions to paragraph (k)(2)(iii). Therefore, the agency expects the new result of final paragraph (k)(2) to be a slight cost savings. The second set of changes proposed to the standard’s medical surveillance requirements is in paragraph (k)(7), which contains the requirements for evaluation at a CBD diagnostic center. Paragraph (k)(7)(i) of the previous rule required employers to provide an evaluation at no cost to the employee at a CBD diagnostic center that is mutually agreed upon by the employee and employer within 30 days of the employer receiving a written medical opinion that recommends referral to a CBD diagnostic center, or a written medical report indicating that the employee has been confirmed positive or diagnosed with CBD. To address stakeholder concerns that scheduling the appropriate tests with an examining physician at the CBD diagnostic center may take longer than 30 days, OSHA proposed that the employer provide an initial consultation with the CBD diagnostic center, rather than the full evaluation, within 30 days of the employer receiving one of the types of documentation listed in paragraph (k)(7)(i)(A) or (B). The agency noted that the consultation could occur via telephone or virtual conferencing methods and would demonstrate that the employer made an effort to begin the process for a medical examination (83 FR at 63758). Evaluation and any testing would then occur within a reasonable time after the consultation. In the PEA, OSHA noted that while the addition of the consultation would not result in any additional costs or cost savings (since the 2017 FEA had already accounted for a 15-minute discussion between the employee and a physician (Document ID OSHA–H005C–2006– 0870–2042, p. V–206)), allowing more flexibility in scheduling the tests at the CBD diagnostic center would enable employers to find more economical travel and accommodation options. To the extent that it takes longer than 30 days to schedule the tests at the CBD diagnostic center, the agency preliminarily found that employers may realize a cost savings due to retaining funds during the delay. OSHA could not quantify the effect of this flexibility, however, concluding only that it expected that the changes would produce minor, if any, cost savings. The agency invited comment on its PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 preliminary assessment of these potential effects (83 FR at 63764). Stakeholders did not offer any comments on the agency’s preliminary estimates regarding the cost savings attributable to these proposed changes. Several commenters objected to adding the consultation requirement, however, arguing that it was an unnecessary step that would add logistical complications and costs (see, e.g., Document ID 0021, p. 3; 022, p. 6). This is discussed in more detail in the Summary and Explanation for paragraph (k), Medical Surveillance. After considering these comments and the record as a whole, OSHA decided to modify paragraph (k)(7)(i) to require that the employer within 30 days of receiving one of the types of documentation listed in paragraph (k)(7)(i)(A) or (B) schedule an evaluation at a CBD diagnostic center. In addition, OSHA is adding a requirement that the evaluation itself must occur within a reasonable time. OSHA finds that these changes may slightly delay the incidence of costs of an evaluation under paragraph (k)(7)(i), in that it may occur at a later date in some cases than under the existing provision. This would slightly decrease the costs of compliance with the standard. The agency also finds that allowing the evaluation to occur within a reasonable time, rather than within 30 days, may allow for more cost-effective travel and accommodation options. Thus, as with the proposal, OSHA concludes that these changes may produce minor cost savings. To account for a proposed change to the definition of CBD diagnostic center, the proposed rule would also have amended paragraph (k)(7)(i) to clarify that the employer must provide, at no cost to the employee and within a reasonable time after consultation with the CBD diagnostic center, any of the following tests that a CBD diagnostic center must be capable of performing, if deemed appropriate by the examining physician at the CBD diagnostic center: A pulmonary function test as outlined by American Thoracic Society criteria testing, bronchoalveolar lavage (BAL), and transbronchial biopsy. In the PEA, OSHA explained that this proposed change would not alter the requirements of the standard and therefore would not change the costs of compliance with the standard (83 FR at 63764). Stakeholders did not offer any comments on OSHA’s determination that these proposed changes would not affect costs. Some stakeholders argued, however, that the proposed provision could be misinterpreted to mean that the employer does not have to make available other tests that the examining E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations physician deems appropriate for reasons such as diagnosing or determining the severity of CBD (Document ID 0021, p. 3; 0022, p. 3; 0028, p. 2). This is discussed in more detail in the Summary and Explanation for paragraph (k), Medical Surveillance. To address these concerns, OSHA is adding a new provision, paragraph (k)(7)(ii), which clarifies that, as part of the evaluation at the CBD diagnostic center, the employer must ensure that the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing as outlined by American Thoracic Society criteria testing, bronchoalveolar lavage (BAL), and transbronchial biopsy.4 If any of these tests deemed appropriate by the examining physician are not available at the CBD diagnostic center, the final rule allows them to be performed at another location that is mutually agreed upon by the employer and the employee. OSHA does not believe that requiring employers to provide any tests deemed appropriate by the examining physician would change the costs of compliance with the standard because the agency accounted for such costs in the 2017 final rule.5 Specifically, when calculating the unit cost for going to a CBD diagnostic center in the 2017 FEA, the agency used a typical suite of tests that would be performed (Document ID OSHA–H005C–2006–0870–2042, p. V– 205). Consequently, OSHA’s unit cost in the 2017 final rule for an evaluation at a CBD diagnostic center was an average for standard tests that are required. The agency finds that this average set of tests by definition is constructed to give the average cost for the tests deemed appropriate by the examining physician and, thus, concludes that there are no costs or cost savings attributable to this change. Paragraph (k)(7)(ii) requires that if any test deemed appropriate by the examining physician is not available at the CBD diagnostic center, the test must be performed at another location that is mutually agreed to by the employer and employee. OSHA believes that such circumstances would be very rare. CBD diagnostic centers with the ability to 4 As discussed in Section XI, Summary and Explanation of the Final Rule, OSHA also redesignated previous paragraphs (k)(7)(ii), (iii), (iv), and (v) as paragraphs (k)(7)(iii), (iv), (v), and (vi), respectively. This redesignation in paragraph (k) also affects a reference in paragraph (l)(1)(ii). These changes are merely administrative and do not have any substantive or monetary effect. 5 As discussed in the Summary and Explanation for paragraph (k), Medical Surveillance, OSHA never intended to limit the required tests to the three tests listed in the previous definition of the term CBD diagnostic center. VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 perform pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy are most likely to also provide other medical tests related to CBD.6 As a result, the CBD diagnostic center in the vast majority of cases will be able to offer the additional testing deemed necessary by the examining physician. Moreover, because the three tests noted above are the tests that are commonly needed to diagnose CBD, OSHA expects that these are the tests that would most commonly be performed (see Section XI, Summary and Explanation of the Final Rule). Given that this standard requires CBD diagnostic centers to be able to perform the three tests that are most commonly performed to diagnose CBD and CBD diagnostic centers typically would be able to offer any additional tests deemed necessary, OSHA expects that employees would rarely, if ever, need to travel to a second location.7 In those rare cases, the added flexibility of having the tests performed outside of a CBD diagnostic center gives more options for the employer and employee and should lead to cost savings. Because this situation should be quite uncommon, OSHA expects that the cost savings of allowing employees to have additional tests outside of a CBD diagnostic center are likely to be de minimis. This change to paragraph (k)(7) clarifies OSHA’s intent that the employer provide any tests deemed appropriate by the examining physician at the CBD diagnostic center, or at another location if not available at the CBD diagnostic center, but does not substantively change the requirements of the beryllium standard. OSHA expects that the changes described here would maintain safety and health protections for workers. 6 Document ID OSHA–H005C–2006–0870–0637 provides some information from the NJH website, which provides an overview of the types of tests performed. 7 OSHA also notes that it has always intended for employers to make available any additional tests deemed appropriate by the examining physician (see the discussion of paragraph (k), Medical Surveillance, in Section XI, Summary and Explanation of the Final Rule, of this preamble). The economic analysis of the 2017 final rule did not explicitly account for these rare cases where a test recommended by the examining physician of the CBD diagnostic center was not available at the same center. Hence, there would be a de minimis cost adjustment increase of the total cost of the 2017 final rule due to this consideration. This is not a change in people’s behavior, simply a methodological change. The current final rule could affect people’s behavior and be a true change (decrease) in costs. This change merely provides employers with a more flexible, potentially less expensive, manner to provide those tests in the rare situation where they are not available at the original CBD diagnostic center. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 42589 3. Economic and Technological Feasibility In the FEA in support of OSHA’s 2017 Beryllium Final Rule, OSHA concluded that the general industry beryllium standard was economically and technologically feasible (see 82 FR at 2471). In the 2018 NPRM, OSHA explained that it anticipated that none of the proposed changes would impose any new employer obligations or increase the overall cost of compliance, while some of the changes would clarify and simplify compliance in such a way that results in cost savings. In addition, OSHA preliminarily anticipated that the de minimis cost of any time spent reviewing the proposed changes would be more than offset by the cost savings described in the PEA. OSHA further found that none of the proposed revisions would require any new controls or other technology. OSHA therefore preliminarily determined that the proposed rule was both economically and technologically feasible. OSHA did not receive any comments objecting to or otherwise questioning this preliminary determination.8 Therefore, after considering the record as a whole, OSHA finds that the proposed provisions that are being adopted in this final rule are economically and technologically feasible. OSHA also finds that the few new changes between the proposal and the final rule would not require any new controls or other technology and will result in cost savings. Therefore, OSHA finds that these final provisions, and the final rule as a whole, are economically and technologically feasible. 4. Effects on Benefits In the 2017 FEA, OSHA attributed approximately 67 percent of the beryllium sensitization cases and the CBD cases avoided, and none of the lung cancer cases avoided, solely to the ancillary provisions of the standard (Document ID OSHA–H005C–2006– 0870–2042, pp. VII–4 to VII–5, VII–24). This estimate was based on the ancillary provisions as a whole, rather than each provision separately. 8 Although the agency did not receive any comments questioning the economic or technological feasibility of the proposed changes, at least one stakeholder argued that the previous standard was not economically or technologically feasible and that the proposed provisions remedied some of that stakeholder’s concerns with feasibility (Document ID 0038, pp. 13, 21–22, 43). Because the feasibility of the January 2017 final rule as a whole is not at issue in this rulemaking, OSHA considers these comments indicating that these changes provide both economic and technological feasibility relief as support for the economic and technological feasibility of the proposed revisions. E:\FR\FM\14JYR3.SGM 14JYR3 42590 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations In the PEA, OSHA considered the potential effect of each proposed change to ancillary provisions on employee protections. Because the proposed revisions to the standard would not remove or change the general nature of any ancillary provisions, and because the agency expected the proposed revisions to maintain safety and health protections for workers and facilitate employer understanding and compliance, OSHA preliminarily determined that the proposed changes would increase the standard’s benefits as a whole by enhancing worker protections overall and by preventing costs that follow from misunderstanding the standard. OSHA did not receive any comments related to its preliminary assessment of the proposed provisions’ effects on benefits. Having considered the record as a whole, including all the comments received, OSHA finds that the changes in this final rule will maintain safety and health protections for workers while aligning the standard with the intent behind the 2017 final rule and otherwise preventing costs that could follow from misinterpretation or misapplication of the standard. And the agency reaffirms its determination that facilitating employer understanding and compliance has the benefit of enhancing worker protections overall. Therefore, OSHA finds that the changes in this final rule will increase the benefits of the standard as a whole. 5. Regulatory Flexibility Act Certification In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (as amended), OSHA has examined the regulatory requirements of this final rule to revise the general industry beryllium standard to determine whether they would have a significant economic impact on a substantial number of small entities. The final rule modifies the general industry standard to clarify certain provisions and simplify or improve compliance. It does not impose any new duties or increase the overall cost of compliance, and OSHA expects it will provide some cost savings. OSHA therefore expects that this final rule will not have a significant economic impact on any small entities. Accordingly, OSHA certifies that this final rule will not have a significant economic impact on a substantial number of small entities. VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 V. Office of Management and Budget (OMB) Review Under the Paperwork Reduction Act of 1995 A. Overview This final rule revises information collection (paperwork) requirements in the occupational exposure to beryllium in general industry (29 CFR 1910.1024) standard that are subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) and its implementing regulations (5 CFR part 1320). OSHA is revising the previously approved paperwork package under OMB control number 1218–0267, as it pertains to general industry only. The collection of information items contained in the Information Collection Request (ICR) pertaining to occupational exposure to beryllium in the construction and shipyard sectors remain in the ICR without change. The PRA generally requires that agencies consider the impact of paperwork and other information collection burdens imposed on the public, obtain public input, and obtain approval from OMB before conducting any collection of information (44 U.S.C. 3507). The PRA defines a collection of information as ‘‘the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format’’ (44 U.S.C. 3502(3)(A)). Federal agencies generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by OMB under the PRA and displays a valid OMB control number (44 U.S.C. 3507). Also, notwithstanding any other provision of law, no person shall be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB control number (44 U.S.C. 3512). B. Solicitation of Comments On January 9, 2017, OSHA published a final rule establishing new permissible exposure limits and other provisions to protect employees from beryllium exposure, such as requirements for exposure assessment, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication, and recordkeeping for the general industry, construction, and shipyard sectors. OMB approved the collections of information contained in the final rule under OMB Control Number 1218– 0267. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 On December 11, 2018, OSHA published a Notice of Proposed Rulemaking (NPRM) to modify the general industry beryllium standard by clarifying certain provisions to improve and simplify compliance (83 FR 63746). The 2018 NPRM proposed to revise the collections of information contained in the general industry standard by modifying provisions for the written exposure control plan; the cleaning and replacement of personal protection equipment; the disposal, recycling, and reuse of contaminated materials; certain aspects of medical surveillance; and the collection of social security numbers in recordkeeping. OSHA prepared and submitted to OMB an ICR for the 2018 proposed rule for review in accordance with 44 U.S.C. 3507(d). A copy of the proposed ICR is available to the public at https://www.reginfo.gov/public/do/ PRAOMBHistory?ombControlNumber= 1218-0267. In accordance with the PRA (44 U.S.C. 3506(c)(2)), OSHA solicited public comments on the collection of information contained in the 2018 proposed rule. OSHA encouraged commenters to submit their comments on the information collection requirements contained in the proposed rule under docket number OSHA–2018– 0003, along with their comments on other parts of the proposed rule. In addition to generally soliciting comments on the collection of information requirements, the proposed rule indicated that OSHA and OMB were particularly interested in the following items: • Whether the proposed collection of information is necessary for the proper performance of the agency’s functions, including whether the information is useful; • The accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • The quality, utility, and clarity of the information to be collected; and • Ways to minimize the compliance burden on employers, for example, through the use of automated or other technological techniques for collecting and transmitting information (83 FR 63766). On March 29, 2019, OMB issued a Notice of Action (NOA) stating, ‘‘Terms of the previous clearance remain in effect. OMB is withholding approval at this time. Prior to publication of the final rule, the agency should provide a summary of any comments related to the information collection and their response, including any changes made to the ICR as a result of comments. In E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations addition, the agency must enter the correct burden estimates’’ (see OMB Conclusion Action on ICR Reference No. 201812–1218–001, dated March 29, 2019, available at: https://www.reginfo. gov/public/do/PRAOMBHistory? ombControlNumber=1218-0267). The agency did not receive any public comments in response to the proposed ICR submitted to OMB for review. Public comments submitted in response to the NPRM, however, substantively addressed provisions containing collection of information. OSHA considered these comments when it developed the revised ICR for this final rule. Summaries of comments received on the NPRM and OSHA’s responses are found in Sections XI, Summary and Explanation of the Final Rule, and IV, Final Economic Analysis and Regulatory Flexibility Act Certification. The Department of Labor submitted the final ICR concurrent with the publication of this final rule, containing the full analysis and description of the burden hours and costs associated with the final rule, to OMB for approval. A copy of this ICR will be available to the public at https://www.reginfo.gov/public/ do/PRAViewICR?ref_nbr=202006-1218006 (this link will become active on the day following publication of this notice). At the conclusion of OMB’s review, OSHA will publish a separate notice in the Federal Register to announce the results. C. Summary of Information Collection Requirements As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the following paragraphs provide information about the ICR. 1. Title: Beryllium Standard for General Industry (29 CFR 1910.1024), Construction (29 CFR 1926.1124), and Maritime (29 CFR 1915.1024). 2. Type of Review: Revision. 3. OMB Control Number: 1218–0267. 4. Affected Public: Business or Other For-Profit. This final rule applies to employers in general industry who have employees that may have occupational exposures to any form of beryllium, including compounds and mixtures, except those articles and materials exempted by paragraphs (a)(2) and (a)(3). 5. Occupational Exposure to Beryllium in General Industry only: a. Number of Respondents: 4,538. b. Frequency of Responses: On occasion, quarterly, semi-annually, annually, biannually. c. Number of Responses: 134,570. d. Estimated Total Burden Hours: 82,822. e. Estimated Cost: $18,741,540. 6. Occupational Exposure to Beryllium in Construction and Shipyard Sectors (previously-approved costs not affected by this rulemaking): a. Number of Respondents: 2,796. b. Frequency of responses: On occasion, quarterly, semi-annually, annually, biannually. 42591 c. Number of responses: 39,420. d. Estimated Total Burden Hours: 25,269. e. Estimated Cost: $8,774,874. 7. Total Estimated Burden Hours and Cost for All Three Industries: a. Estimated Total Number of responses: 173,990. b. Estimated Total Burden Hours: 108,091. c. Estimated Cost: $27,516,414. D. Summary of Changes in the Collection of Information Requirements This final standard for occupational exposure to beryllium and beryllium compounds in general industry revises the collection of information requirements contained in the existing ICR for general industry, approved under OMB control number 1218–0267. OSHA is updating the new ICR to reflect those changes, which include changes to the written exposure control plan; the cleaning and replacement of personal protection equipment; the disposal, recycling, and reuse of contaminated materials; certain aspects of medical surveillance; and the collection of Social Security numbers in recordkeeping (see Table V.1 below). The majority of these changes were adopted by the agency as proposed. However, in response to comments on the proposed rule, OSHA has revised a few of the provisions of the final rule that affect the collection of information. Those changes are also noted in Table V.1 below. TABLE V.1—CHANGES TO COLLECTION OF INFORMATION REQUIREMENTS IN THE FINAL RULE FOR GENERAL INDUSTRY Information collection requirements in this final rule Explanation of this final rule’s changes to the information collection requirements § 1910.1024(f)(1)(i), (ii), & (iii)—Methods of Compliance—Written Exposure Control Plan ........... (i) The employer must establish, implement, and maintain a written exposure control plan, which must contain: (A) A list of operations and job titles reasonably expected to involve airborne exposure to or dermal contact with beryllium; (B) A list of operations and job titles reasonably expected to involve airborne exposure at or above the action level; (C) A list of operations and job titles reasonably expected to involve airborne exposure above the TWA PEL or STEL; (D) Procedures for minimizing cross-contamination, including the transfer of beryllium between surfaces, equipment, clothing, materials, and articles within beryllium work areas; (E) Procedures for keeping surfaces as free as practicable of beryllium; (F) Procedures for minimizing the migration of beryllium from beryllium work areas to other locations within or outside the workplace; (G) A list of engineering controls, work practices, and respiratory protection required by paragraph (f)(2) of this standard; (H) A list of personal protective clothing and equipment required by paragraph (h) of this standard; and (I) Procedures for removing, laundering, storing, cleaning, repairing, and disposing of beryllium-contaminated personal protective clothing and equipment, including respirators. (ii) The employer must review and evaluate the effectiveness of each written exposure control plan at least annually and update it, as necessary, when: (A) Any change in production processes, materials, equipment, personnel, work practices, or control methods results, or can reasonably be expected to result, in new or additional airborne exposure to beryllium; This final rule removed the word ‘‘preventing’’ from (f)(i)(D), which previously contained the phrase ‘‘including preventing the transfer of beryllium.’’ In addition, the final rule revised (f)(1)(ii)(B) by replacing the phrase ‘‘airborne exposure to or dermal contact with beryllium’’ with ‘‘exposure to beryllium.’’ Both of these changes were adopted as proposed. VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\14JYR3.SGM 14JYR3 42592 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations TABLE V.1—CHANGES TO COLLECTION OF INFORMATION REQUIREMENTS IN THE FINAL RULE FOR GENERAL INDUSTRY— Continued Explanation of this final rule’s changes to the information collection requirements Information collection requirements in this final rule (B) The employer is notified that an employee is eligible for medical removal in accordance with paragraph (l)(1) of this standard for evaluation at a CBD diagnostic center, or shows signs or symptoms associated with exposure to beryllium; or (C) The employer has any reason to believe that new or additional airborne exposure is occurring or will occur. (iii) The employer must make a copy of the written exposure control plan accessible to each employee who is, or can reasonably be expected to be, exposed to airborne beryllium in accordance with OSHA’s Access to Employee Exposure and Medical Records (Records Access) standard (29 CFR 1910.1020(e)). § 1910.1024(h)(3)(iii)—Personal Protective Clothing and Equipment—Cleaning and Replacement. (3)(iii) The employer must inform in writing the persons or the business entities who launder, clean, or repair the personal protective clothing or equipment required by this standard of the potentially harmful effects of exposure to beryllium and that the personal protective clothing and equipment must be handled in accordance with this standard. § 1910.1024(j)(3)(i), (ii), & (iii)—Housekeeping—Disposal, recycling, and reuse ........................... (3)(i) Except for intra-plant transfers, when the employer transfers materials that contain at least 0.1% beryllium by weight or are contaminated with beryllium for disposal, recycling, or reuse, the employer must label the materials in accordance with paragraph (m)(3) of this standard; (ii) Except for intra-plant transfers, materials designated for disposal that contain at least 0.1% beryllium by weight or are contaminated with beryllium must be cleaned to be as free as practicable of beryllium or placed in enclosures that prevent the release of beryllium-containing particulate or solutions under normal conditions of use, storage, or transport, such as bags or containers; and (iii) Except for intra-plant transfers, materials designated for recycling or reuse that contain at least 0.1% beryllium by weight or are contaminated with beryllium must be cleaned to be as free as practicable of beryllium or placed in enclosures that prevent the release of berylliumcontaining particulate or solutions under normal conditions of use, storage, or transport, such as bags or containers. VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 This final rule revised (h)(3)(iii) by replacing the phrase ‘‘airborne exposure to and dermal contact with beryllium’’ with ‘‘exposure to beryllium.’’ This change was adopted as proposed. This final rule revised (j)(3) by explicitly addressing transferring materials for reuse; reorganizing the previous two provisions into three to allow the agency to incorporate the new reuse requirements, while also setting out each distinct obligation clearly; replacing the phrase materials ‘‘that contain beryllium in concentrations of 0.1 percent by weight or more’’ with a shorter, easier to understand phrase: Materials ‘‘that contain at least 0.1 percent beryllium by weight;’’ clarifying that the rule’s requirements for disposal, recycling, and reuse do not apply to intra-plant transfers; clarifying the enclosure requirements by providing more detail on what constitutes an appropriate enclosure; allowing for the cleaning of materials bound for disposal; and removing the undefined phrase ‘‘surface beryllium contamination.’’ In addition to the above actions, which were all adopted as proposed, in this final rule, OSHA revised paragraph (j)(3)(i) to explicitly incorporate the clarification that the rule’s requirements for disposal, recycling, and reuse do not apply to intra-plant transfers. E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations 42593 TABLE V.1—CHANGES TO COLLECTION OF INFORMATION REQUIREMENTS IN THE FINAL RULE FOR GENERAL INDUSTRY— Continued Information collection requirements in this final rule Explanation of this final rule’s changes to the information collection requirements § 1910.1024(k)(2)—Medical Surveillance. (2) Frequency ............................................................... The employer must provide a medical examination: (i) Within 30 days after determining that: (A) An employee meets the criteria of paragraph (k)(1)(i)(A), unless the employee has received a medical examination, provided in accordance with this standard, within the last two years; or (B) An employee meets the criteria of paragraph (k)(1)(i)(B) of this standard. (ii) At least every two years thereafter for each employee who continues to meet the criteria of paragraph (k)(1)(i)(A), (B), or (D) of this standard. (iii) At the termination of employment for each employee who meets any of the criteria of paragraph (k)(1)(i) of this standard at the time the employee’s employment terminates, unless an examination has been provided in accordance with this standard during the six months prior to the date of termination. Each employee who meets the criteria of paragraph (k)(1)(i)(C) of this standard and who has not received an examination since exposure to beryllium during the emergency must be provided an examination at the time the employee’s employment terminates. (iv) For an employee who meets the criteria of paragraph (k)(1)(i)(C) of this standard: (A) If that employee has not received a medical examination within the previous two years pursuant to paragraph (k)(1)(i) of this standard, then within 30 days after the employee meets the criteria of paragraph (k)(1)(i)(C) of this standard; or (B) If that employee has received a medical examination within the previous two years pursuant to paragraph (k)(1)(i) of this standard, then at least one year but no more than two years after the employee meets the criteria of paragraph (k)(1)(i)(C) of this standard. Paragraph (k)(2)(i)(B) of the 2017 standard previously required the employer to provide a medical examination within 30 days after determining that the employee shows signs or symptoms of CBD or other beryllium-related health effects or that the employee has been exposed to beryllium in an emergency. The 2018 NPRM would have added paragraph (k)(2)(iv) to require employers to offer an examination to employees exposed to beryllium in an emergency at least one year after but no more than two years after the employee is exposed to beryllium in an emergency. It also would have amended paragraph (k)(2)(i)(B) to focus only on the frequency of examinations for employees who show signs or symptoms of CBD or other beryllium-related health effects. This final rule’s provisions differ from those in the proposal. Specifically, in this final rule, OSHA removed the requirement for a medical examination within 30 days of exposure in an emergency and added paragraph (k)(2)(iv). Final paragraph (k)(2)(iv)(A) requires the employer to offer a medical examination to an employee within 30 days after the employee was exposed to beryllium in an emergency, if the employee has not had an examination under paragraph (k)(1)(i) within the last two years, while final paragraph (k)(2)(iv)(B) requires the employer to offer a medical examination to an employee within one to two years after the employee was exposed to beryllium in an emergency, if the employee had an examination under paragraph (k)(1)(i) of the beryllium standard within the last two years. In addition, this final rule revised paragraph (k)(2)(iii) to require that each employee who is exposed in an emergency and has not received an examination since the emergency exposure must be provided an examination at the time employment is terminated. As proposed in the 2018 NPRM, this final rule also amended paragraph (k)(2)(i)(B) to focus only on the frequency of examinations for employees who show signs or symptoms of CBD or other beryllium-related health effects. VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\14JYR3.SGM 14JYR3 42594 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations TABLE V.1—CHANGES TO COLLECTION OF INFORMATION REQUIREMENTS IN THE FINAL RULE FOR GENERAL INDUSTRY— Continued Information collection requirements in this final rule Explanation of this final rule’s changes to the information collection requirements § 1910.1024(k)(7)—Medical Surveillance—Referral to the CBD Diagnostic Center ...................... (7) CBD diagnostic center. (i) The employer must provide an evaluation at no cost to the employee at a CBD diagnostic center that is mutually agreed upon by the employer and the employee. The evaluation at the CBD diagnostic center must be scheduled within 30 days, and must occur within a reasonable time, of: (A) The employer’s receipt of a physician’s written medical opinion to the employer that recommends referral to a CBD diagnostic center; or (B) The employee presenting to the employer a physician’s written medical report indicating that the employee has been confirmed positive or diagnosed with CBD, or recommending referral to a CBD diagnostic center. (ii) The employer must ensure that, as part of the evaluation, the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. If any of the tests deemed appropriate by the examining physician are not available at the CBD diagnostic center, they may be performed at another location that is mutually agreed upon by the employer and the employee. (iii) The employer must ensure that the employee receives a written medical report from the CBD diagnostic center that contains all the information required in paragraph (k)(5)(i), (ii), (iv), and (v) of this standard and that the PLHCP explains the results of the examination to the employee within 30 days of the examination. (iv) The employer must obtain a written medical opinion from the CBD diagnostic center within 30 days of the medical examination. The written medical opinion must contain only the information in paragraph (k)(6)(i), as applicable, unless the employee provides written authorization to release additional information. If the employee provides written authorization, the written opinion must also contain the information from paragraphs (k)(6)(ii), (iv), and (v), if applicable. (v) The employer must ensure that each employee receives a copy of the written medical opinion from the CBD diagnostic center described in paragraph (k)(7) of this standard within 30 days of any medical examination performed for that employee. (vi) After an employee has received the initial clinical evaluation at a CBD diagnostic center described in paragraphs (k)(7)(i) and (ii) of this standard, the employee may choose to have any subsequent medical examinations for which the employee is eligible under paragraph (k) of this standard performed at a CBD diagnostic center mutually agreed upon by the employer and the employee, and the employer must provide such examinations at no cost to the employee. The 2018 NPRM would have amended paragraph (k)(7) of the 2017 standard to require employers to provide, at no cost to the employee and within a reasonable time after the initial consultation with the CBD diagnostic center, any of the following tests if deemed appropriate by the examining physician at the CBD diagnostic center: Pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. The proposal also specified the timing of the initial consultation. This final rule’s provisions differ from those in the proposal. Specifically, OSHA revised paragraph (k)(7)(i) to require that the evaluation must be scheduled within 30 days, and must occur within a reasonable time, of the employer receiving one of the types of documentation listed in paragraph (k)(7)(i)(A) or (B). Previously, the general industry standard required employers to provide the examination within 30 days of the employer receiving one of the types of documentation listed in paragraph (k)(7)(i)(A) or (B). This final rule also added a provision, in paragraph (k)(7)(ii), which specifies that the employer must ensure that, as part of the evaluation, the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. The new provision also states that if any of the tests deemed appropriate by the examining physician are not available at the CBD diagnostic center, they may be performed at another location that is mutually agreed upon by the employer and the employee. This final rule removed the requirement for collection and recording of Social Security numbers from this provision. This change was adopted as proposed. § 1910.1024(n)(1)(i), (ii), & (iii)—Recordkeeping—Air Monitoring Data .......................................... (i) The employer must make and maintain a record of all exposure measurements taken to assess airborne exposure as prescribed in paragraph (d) of this standard. (ii) This record must include at least the following information: (A) The date of measurement for each sample taken; (B) The task that is being monitored; (C) The sampling and analytical methods used and evidence of their accuracy; (D) The number, duration, and results of samples taken; (E) The type of personal protective clothing and equipment, including respirators, worn by monitored employees at the time of monitoring; and (F) The name and job classification of each employee represented by the monitoring, indicating which employees were actually monitored. (iii) The employer must ensure that exposure records are maintained and made available in accordance with the Records Access standard (29 CFR 1910.1020). § 1910.1024(n)(3)(i), (ii), & (iii)—Recordkeeping—Medical Surveillance ........................................ (i) The employer must make and maintain a record for each employee covered by medical surveillance under paragraph (k) of this standard. (ii) The record must include the following information about the employee: (A) Name and job classification; (B) A copy of all licensed physicians’ written medical opinions for each employee; and (C) A copy of the information provided to the PLHCP as required by paragraph (k)(4) of this standard. (iii) The employer must ensure that medical records are maintained and made available in accordance with the Records Access standard (29 CFR 1910.1020). VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 This final rule removed the requirement for collection and recording of Social Security numbers from this provision. This change was adopted as proposed. E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations 42595 TABLE V.1—CHANGES TO COLLECTION OF INFORMATION REQUIREMENTS IN THE FINAL RULE FOR GENERAL INDUSTRY— Continued Information collection requirements in this final rule Explanation of this final rule’s changes to the information collection requirements § 1910.1024(n)(4)(i) & (ii)—Recordkeeping—Training .................................................................... (4) Training. (i) At the completion of any training required by this standard, the employer must prepare a record that indicates the name and job classification of each employee trained, the date the training was completed, and the topic of the training. (ii) This record must be maintained for three years after the completion of training. This final rule removed the requirement for collection and recording of Social Security numbers from this provision. This change was adopted as proposed. VII. State Plans When federal OSHA promulgates a new standard or more stringent amendment to an existing standard, the states and U.S. Territories with their own OSHA-approved occupational safety and health plans (State Plans) must promulgate a state standard adopting such new federal standard, or more stringent amendment to an existing federal standard, or an at least as effective equivalent thereof, within six months of promulgation of the new federal standard or more stringent amendment. The state may demonstrate that a standard change is not necessary because the state standard is already the same or at least as effective as the federal standard change. Because a state may include standards and standard provisions that are equally or more stringent than federal standards, it would generally be unnecessary for a state to revoke a standard when the comparable federal standard is revoked or made less stringent. To avoid delays in worker protection, the effective date of the state standard and any of its delayed provisions must be the date of state promulgation or the federal effective date, whichever is later. The Assistant Secretary may permit a longer time period if the state makes a timely demonstration that good cause exists for extending the time limitation (29 CFR 1953.5(a)). Of the 28 states and territories with OSHA-approved State Plans, 22 cover public and private-sector employees: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The remaining six states and territories cover only state and local government employees: Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands. As discussed in detail below in Section XI, Summary and Explanation of the Final Rule, the majority of the changes made by this final rule will clarify certain provisions and simplify or improve employer compliance. After considering all of the changes made by this final rule and the record as a whole, OSHA believes that this final rule enhances employee safety, in part by revising provisions that may be misinterpreted. Therefore, OSHA has determined that, within six months of the rule’s promulgation date, State Plans must review their state standards and adopt amendments to those standards that are at least as effective as the amendments to the beryllium general industry standard finalized herein, as required by 29 CFR 1953.5(a), unless the State Plans demonstrate that such amendments are not necessary because their existing standards are already at least as effective at protecting workers as this final rule. This decision is also informed by a comment from Materion Brush, Inc. (Materion), in which Materion argued that OSHA should require states to adopt the proposed changes (Document ID 0038–A5, p. 2).9 No other stakeholders opined on this issue. VI. Federalism OSHA reviewed this rule in accordance with the Executive Order on Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which requires that federal agencies, to the extent possible, refrain from limiting state policy options, consult with states prior to taking any actions that would restrict state policy options, and take such actions only when clear constitutional and statutory authority exists and the problem is national in scope. Executive Order 13132 provides for preemption of state law only with the expressed consent of Congress. Any such preemption is to be limited to the extent possible. Under Section 18 of the OSH Act, 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 Plans’’ (29 U.S.C. 667). Occupational safety and health standards developed by State Plans must be at least as effective in providing safe and healthful employment and places of employment as the federal standards. Subject to these requirements, State Plans are free to develop and enforce under state law their own requirements for safety and health standards. OSHA previously concluded from its analysis for the 2017 final rule that promulgation of the beryllium standard complies with E.O. 13132 (82 FR at 2633). The amendments in this final rule do not change that conclusion. In states without OSHA-approved State Plans, Congress expressly provides for OSHA standards to preempt state occupational safety and health standards in areas addressed by the federal standards. In these states, this rule limits state policy options in the same manner as every standard promulgated by OSHA. In states with OSHA-approved State Plans, this rulemaking does not significantly limit state policy options. VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 VIII. Unfunded Mandates Reform Act OSHA reviewed this final rule according to the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and Executive Order 13132 (64 FR 43255). As discussed above in Section IV, Final Economic Analysis and Regulatory Flexibility Act Certification (FEA), of this preamble, the agency determined that this final rule will not impose significant additional costs on any private- or public-sector entity. Further, OSHA previously concluded that the rule will not impose a federal mandate on the private sector in excess of $100 million (adjusted annually for inflation) in expenditures in any one year (82 FR at 2634). Accordingly, this final rule will not require significant additional 9 OSHA notes that Materion also argued that the State Plans that have already adopted the original OSHA standard should be required to adopt the changes OSHA previously adopted in the 2018 direct final rule, as well as the changes that result from the current rulemaking (Document ID 0038– A5, p. 1). Whether OSHA should require State Plans to adopt the changes made in the 2018 direct final rule is out of the scope of this rulemaking and, thus, will not be considered here. E:\FR\FM\14JYR3.SGM 14JYR3 42596 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations expenditures by either public or private employers. As noted above under Section VII, State Plans, the agency’s standards do not apply to state and local governments except in states that have elected voluntarily to adopt a State Plan approved by the agency. Consequently, this final rule does not meet the definition of a ‘‘federal intergovernmental mandate’’ (see Section 421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the agency certifies that this final rule will 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. IX. Consultation and Coordination With Indian Tribal Governments OSHA has reviewed this final rule in accordance with Executive Order 13175 (65 FR 67249) and determined that it does not have ‘‘tribal implications’’ as defined in that order. This final 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. X. Environmental Impacts OSHA has reviewed this final rule in accordance with the requirements of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), the Council on Environmental Quality NEPA regulations (40 CFR part 1500– 1508), and the Department of Labor’s NEPA procedures (29 CFR part 11). As a result of this review, OSHA has determined that this final rule will not have a significant impact on air, water, or soil quality; plant or animal life; the use of land; or aspects of the external environment. XI. Summary and Explanation of the Final Rule On December 11, 2018, OSHA published a Notice of Proposed Rulemaking (83 FR 63746) (2018 NPRM) proposing changes to a number of provisions in the general industry beryllium standard. Following publication of the 2018 NPRM, a variety of stakeholders, including representatives of industry, labor, medical groups, public health organizations, federal and state government agencies, academia, trade associations, and private citizens, submitted comments on OSHA’s proposed changes. After reviewing and VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 carefully considering these comments and the remainder of the record, OSHA has decided to adopt the majority of the changes proposed, as well as additional changes that were prompted by the comments received. These changes clarify certain provisions and simplify or improve compliance for the other provisions of the standard. OSHA believes that these changes will maintain safety and health protections for workers and will further enhance worker protections by ensuring that the standard is well understood and implemented according to the agency’s intent. The following discussion summarizes the comments received on the proposed changes to the general industry standard, lays out OSHA’s responses to and final determinations regarding the issues in the comments, and explains each new or revised provision in this final rule including details on any modification made from the proposal. As discussed in detail below, the changes include the addition of one definition and modifications to five existing definitions in paragraph (b) and revisions to seven of the standard’s other paragraphs, including paragraph (f), Methods of compliance; paragraph (h), Personal protective clothing and equipment; paragraph (i), Hygiene areas and practices; paragraph (j), Housekeeping; paragraph (k), Medical surveillance; paragraph (m), Communication of hazards; and paragraph (n), Recordkeeping. The final rule also replaces the 2017 standard’s Appendix A with a new appendix designed to supplement the final standard’s definition of beryllium work area. Definitions. Paragraph (b) of the beryllium standard for general industry provides definitions of key terms used in the standard. In this final rule, OSHA is changing or adding six terms in the definitions paragraph of the standard. The terms that OSHA is changing or adding are beryllium sensitization, beryllium work area, CBD diagnostic center, chronic beryllium disease, confirmed positive, and dermal contact with beryllium. Beryllium sensitization. OSHA is adding the following definition for beryllium sensitization: ‘‘a response in the immune system of a specific individual who has been exposed to beryllium. There are no associated physical or clinical symptoms and no illness or disability with beryllium sensitization alone, but the response that occurs through beryllium sensitization can enable the immune system to recognize and react PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 to beryllium. While not every berylliumsensitized person will develop chronic beryllium disease (CBD), beryllium sensitization is essential for development of CBD.’’ The agency is adding this definition to clarify other provisions in the standard, such as the definitions of chronic beryllium disease (CBD) and confirmed positive, as well as the provisions for medical surveillance in paragraph (k) and hazard communication in paragraph (m). This definition of beryllium sensitization is identical to the definition proposed in the 2018 NPRM and is consistent with information provided in the 2017 final beryllium rule (82 FR 2470). In the preamble to the 2017 final rule, OSHA found that individuals sensitized through either the dermal or inhalation exposure pathways respond to beryllium through the formation of a beryllium-protein complex, which then binds to T-cells stimulating a beryllium-specific immune response (82 FR at 2494). The formation of the T-cell-berylliumprotein complex that results in beryllium sensitization rarely manifests in any outward symptoms (such as coughing or wheezing); most who are sensitized show no symptoms at all (see 82 FR at 2492, 2527). Once an individual has been sensitized, any subsequent beryllium exposures via inhalation can progress to serious lung disease through the formation of granulomas and fibrosis (see 82 FR at 2491–98). Since the pathogenesis of CBD involves a beryllium-specific, cellmediated immune response, CBD cannot occur in the absence of sensitization (82 FR at 2492; see also NAS, 2008 (Document ID OSHA– H005C–2006–0870–1355)). Therefore, this definition’s explanation that beryllium sensitization is essential for development of CBD is consistent with the agency’s findings in the 2017 final rule. Several commenters expressed support for OSHA’s inclusion of a definition of beryllium sensitization in the beryllium general industry standard, including NJH (Document ID 0022, p. 2), the United Steelworkers (USW) (Document ID 0033, p. 1), Materion (Document ID 0038, p. 8), the U.S. Department of Defense (DOD) (Document ID 0029, p. 1), and Edison Electric Institute (EEI) (Document ID 0031, p. 2). According to the USW, the proposed definition is clear and accurate, and is necessary because the beryllium standard includes many provisions related to the recognition of and appropriate response to beryllium sensitization among beryllium-exposed workers (Document ID 0033, p. 1). E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations Materion similarly commented that inclusion of the proposed definition in the standard would improve workers’ and employers’ understanding of this term (Document ID 0038, p. 4). While OSHA received no objections to including a definition of beryllium sensitization in the beryllium standard, several commenters suggested changes to the proposed definition. The National Supplemental Screening Program (NSSP) and NJH recommended that the definition of beryllium sensitization should include the following text, based on the ATS Statement on Beryllium: ‘‘Beryllium sensitization is a response in the immune system of an individual who has been exposed to beryllium. A diagnosis of [beryllium sensitization] can be based on two abnormal blood BeLPTs, one abnormal and one borderline blood BeLPT, three borderline BeLPTs, or one abnormal bronchoalveolar lavage (BAL) BeLPT. Beryllium sensitization is essential for development of CBD’’ (Document ID 0027 p. 1; 0022, p. 2; see also Document ID OSHA–H005C–2006–0870–0364, pp. 1, 44). Neither organization, however, explained why this definition of beryllium sensitization should be used instead of the definition OSHA proposed. OSHA disagrees with this recommendation. The agency is providing a definition of beryllium sensitization to give stakeholders a general understanding of what beryllium sensitization is and its relationship to CBD. Information pertinent to medical identification of sensitization is provided in the definition of confirmed positive, which appears later in this section. OSHA has determined that the agency’s definitions of beryllium sensitization and confirmed positive together provide the information suggested by NJH and the NSSP. The definition of confirmed positive explains how the results of BeLPT testing should be interpreted in the context of the standard’s provisions that refer to that term, such as evaluation at a CBD diagnostic center and medical removal protection. The confirmed positive definition establishes that these benefits should be extended to workers who have a pattern of BeLPT results, obtained in a three-year period, consistent with the NJH and the NSSP’s recommended definition of beryllium sensitization. The remainder of the information suggested by NJH and the NSSP, which pertains to the relationship of beryllium sensitization to beryllium exposure, the immune system, and the development of CBD, is included in the definition of beryllium sensitization that OSHA proposed and VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 is including in this final standard. For these reasons, OSHA has decided not to adopt the language suggested by NJH and the NSSP. The NSSP objected to the statement that no physical or clinical symptoms, illness, or disability are associated with beryllium sensitization alone, but did not explain the reason for their concern with this statement (Document ID 0027, p. 1). Materion supported the agency’s inclusion of this information in the definition, stating that ‘‘employees deserve to understand that beryllium sensitization does not involve symptoms . . .’’ (Document ID 0038, p. 5). The USW also specifically supported the accuracy of this section of OSHA’s proposed definition of beryllium sensitization (Document ID 0033, p. 1). The agency has decided to retain this statement in the definition of beryllium sensitization because it is important that employers and employees understand the asymptomatic nature of beryllium sensitization and the need for specialized testing such as the BeLPT. The statement is consistent with OSHA’s discussion of beryllium sensitization in the 2017 final rule (82 FR at 2492–99). As OSHA discussed in the 2017 final rule, sensitization through dermal contact has sometimes been associated with skin granulomas, contact dermatitis, and skin irritation, but these reactions are rare and those sensitized through dermal exposure to beryllium typically do not exhibit any outward signs or symptoms (see 82 FR at 2488, 2491–92, 2527). OSHA determined that while beryllium sensitization rarely leads to any outward signs or symptoms, beryllium sensitization is an adverse health effect because it is a change to the immune system that leads to risk of developing CBD (82 FR at 2498–99). The agency believes that the asymptomatic nature of beryllium sensitization, especially in the lung, should be conveyed to employers and employees to emphasize why specialized testing such as the BeLPT should be provided to workers who may have no symptoms of illness associated with beryllium exposure. For these reasons, OSHA is retaining the statement ‘‘[t]here are no associated physical or clinical symptoms and no illness or disability with beryllium sensitization alone’’ in the definition of beryllium sensitization. The State of Washington Department of Labor and Industries, Division of Occupational Safety and Health (DOSH), commented that OSHA’s proposed definition of beryllium sensitization places unnecessary emphasis on the role that beryllium sensitization plays in the development PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 42597 of CBD. According to DOSH, ‘‘[t]his language may cause confusion with proper diagnosis of CBD and application of the rule requirements for workers who have developed CBD without a confirmed beryllium sensitization’’ (Document ID 0023, p. 1). Other commenters, however, including NJH, the NSSP, and the USW, supported including the statement that beryllium sensitization is necessary for the development of CBD in OSHA’s definition of beryllium sensitization (Document ID 0022, p. 2; 0027, p. 1; 0033, p. 1). Following consideration of DOSH’s comment, OSHA has determined that this information should remain in the definition of beryllium sensitization (as well as the definition of chronic beryllium disease, discussed later). OSHA believes that an understanding of the relationship between beryllium sensitization and CBD is key to workers’ and employers’ understanding of the beryllium standard. By including the role that sensitization plays in the development of CBD in the definition of beryllium sensitization, OSHA intends to make a number of things clear to workers and employers: That beryllium sensitization, although not itself a disease, is nevertheless an adverse health effect that presents a risk for developing CBD and thus should be prevented; the need to identify beryllium sensitization through regular medical screening; and why workers who are confirmed positive should be offered specialized medical evaluation and medical removal protection. OSHA notes that DOSH does not dispute the factual accuracy of OSHA’s statement regarding the role beryllium sensitization plays in the development of CBD, which the agency established in the Health Effects section of the 2017 final rule (82 FR at 2495–96). Nevertheless, OSHA agrees with DOSH that it is not always necessary to identify a worker as beryllium sensitized by the BeLPT as part of a diagnosis of CBD, and the agency acknowledges that some sensitized individuals may not be confirmed positive for beryllium sensitization by BeLPT testing. OSHA established in the Health Effects section of the preamble to the 2017 final rule that while BeLPT testing is helpful to identify workers at risk for CBD and to differentiate CBD from respiratory diseases with similar clinical presentation, CBD can be diagnosed in the absence of a confirmed positive BeLPT (see 82 FR at 2499– 5002) (discussing a number of studies conducted prior to the development of the BeLPT). At least one study in the rulemaking record found that some E:\FR\FM\14JYR3.SGM 14JYR3 42598 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations beryllium workers who would not have been confirmed positive by their BeLPT results were found to be sensitized via the BAL BeLPT and went on to develop CBD (Newman et al., 2001, Document ID OSHA–H005C–2006–0870–1354, p. 234). Other studies indicate that the BeLPT has a false-negative rate of approximately 25–28 percent (that is, approximately 25–28 percent of individuals who have a single normal BeLPT result are in fact sensitized) (Middleton et al., 2011, Document ID OSHA–H005C–2006–0870–0399, p. 2 (25 percent); Stange et al., 2004, Document ID OSHA–H005C–2006– 0870–1402, p. 457 (27.7 percent)). Because the BeLPT itself may have a false-negative result and because other means exist to diagnose CBD apart from the BeLPT, examining physicians should have the latitude to diagnose CBD in the absence of a ‘‘confirmed positive’’ pattern of BeLPT results. Moreover, as discussed below, the determination that an employee is ‘‘confirmed positive’’ under the beryllium standard acts only as a trigger for medical monitoring and surveillance and OSHA does not intend the phrase ‘‘confirmed positive’’ to be interchangeable with ‘‘beryllium sensitized.’’ The standard provides a mechanism for an employee to be referred to a CBD diagnostic center and diagnosed with CBD, even in the absence of a confirmed positive blood BeLPT result. Under paragraph (k)(5)(iii), the licensed physician can recommend referral to a CBD diagnostic center if he or she deems it appropriate. As OSHA explained in the preamble to the 2017 final rule, the licensed physician could recommend an evaluation at a CBD diagnostic center based on questionable BeLPT findings (82 FR at 2714). For example, in a scenario where an employee has repeating borderline or abnormal results but does not meet the definition for confirmed positive, referral to a CBD diagnostic center may be appropriate. Furthermore, the standard does not specify how CBD is diagnosed and gives the licensed physician at the CBD diagnostic center discretion for making that diagnosis, including by means other than blood BeLPT results. The diagnostic criteria for CBD include (1) history of beryllium exposure; (2) histopathological evidence of noncaseating granulomas or mononuclear cell infiltrates in the absence of infection; and (3) positive blood or BAL BeLPT (82 FR at 2500; see also Newman et al., 1989 (Document ID OSHA– H005C–2006–0870–0196, p. 1480)). The availability of transbronchial lung VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 biopsy facilitates the evaluation of the second criterion, by making histopathological confirmation possible in almost all cases (82 FR at 2500). The ATS has noted that the BAL BeLPT can be useful in diagnosing CBD in individuals who have normal blood BeLPT results and considers one positive BAL BeLPT sufficient for the diagnosis of beryllium sensitization (Document ID OSHA–H005C–2006– 0870–0364, pp. 44–45). OSHA expects that the licensed physician might apply such criteria in the diagnosis of CBD, without relying on a confirmed positive finding based on blood BeLPT results. In summary, OSHA believes that emphasizing the role that beryllium sensitization plays in the development of CBD provides employers and employees with important context for understanding the beryllium standard. At the same time, the agency acknowledges that employees may be diagnosed with CBD in the absence of a confirmed positive BeLPT, and the beryllium standard allows for such a diagnosis. Thus, following consideration of the record of comments on OSHA’s proposed definition of beryllium sensitization, the agency is finalizing the definition as proposed in the 2018 NPRM. The addition of this definition for beryllium sensitization does not change employer obligations under paragraphs (k) and (m) and, therefore, OSHA expects that the new definition will maintain safety and health protections for workers. Beryllium work area. Paragraph (b) of the final rule defines beryllium work area as any work area where materials that contain at least 0.1 percent beryllium by weight are processed either: (1) During any of the operations listed in Appendix A of the standard; or (2) where employees are, or can reasonably be expected to be, exposed to airborne beryllium at or above the action level. The presence of a beryllium work area triggers a number of requirements in the standard. These include the requirements under paragraphs (e)(1)(i) and (2)(i) to establish, maintain, and demarcate the boundaries of each beryllium work area, as well as requirements under paragraphs (f)(1)(i)(D) and (F), written exposure control plan requirements; paragraph (f)(2)(ii), required exposure controls; paragraphs (i)(1) and (2), general hygiene practices and change rooms requirements; paragraphs (j)(1)(i) and (2), housekeeping requirements; and paragraph (m)(4)(ii)(B), employee training. The establishment of beryllium work areas serves to ensure that employees and other persons are aware of the potential presence of airborne PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 beryllium; to control access to these areas; and in conjunction with other provisions such as the written control plan, hygiene, and housekeeping requirements, to minimize the transfer of beryllium to other areas of the facility and reduce the potential for exposure to other employees. The term beryllium work area (as revised in the 2018 direct final rule) was defined as any work area (1) containing a process or operation that can release beryllium and that involves material that contains at least 0.1 percent beryllium by weight; and, (2) where employees are, or can reasonably be expected to be, exposed to airborne beryllium at any level or where there is the potential for dermal contact with beryllium. That definition was developed in response to stakeholder comments on the 2015 NPRM, which had proposed to define a beryllium work area as any work area where there is potential for exposure to airborne beryllium at any level, and which did not include dermal contact as a trigger for establishment of a beryllium work area. Some stakeholders argued that the definition proposed in the 2015 NPRM was overly broad and could be interpreted as applying to most or all areas of a worksite, regardless of the work processes or operations occurring in those areas. Commenters also expressed concern that the definition was vague and should be triggered on a measurable threshold of exposure. NIOSH commented that the proposed definition’s focus on airborne beryllium did not account for the potential contribution of dermal exposures to total exposure (82 FR at 2659). In response to these comments, OSHA modified the definition in the 2017 final rule to require the presence of a beryllium-releasing process. The agency explained in the preamble that triggering the requirement of creating a beryllium work area on a specific threshold level of exposure would be insufficiently protective of workers, but also explained that the agency did not intend for a beryllium work area to be established in areas where work processes or operations that release beryllium do not occur, such as where employees handle articles containing beryllium (82 FR at 2659–60). Rather, the purpose of establishing beryllium work areas is to identify and demarcate areas within a facility where processes or operations release beryllium so that necessary control measures can be implemented, such as those designed to prevent the migration of beryllium to other areas where beryllium is not processed or released. OSHA clarified this intent by defining a beryllium work E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations area as an area that contains processes or operations that release beryllium to which workers could be exposed. Additionally, OSHA accounted for NIOSH’s concern by including the potential for dermal contact with beryllium in the definition (see 82 FR at 2658–60). In the preamble to the 2017 final rule, however, OSHA disagreed with commenters who claimed that the proposed definition of beryllium work area was impermissibly vague. The agency explained that, by limiting the trigger for beryllium work areas to exposures generated from a berylliumreleasing process or operation within the area, the definition made clear that the requirements were not triggered solely on the fact that an employee may be handling solid material containing beryllium. Additionally, any employer who had doubts about whether a process was releasing beryllium or created the potential for dermal contact with beryllium could use air sampling or wipe sampling to determine where the boundary of a beryllium work area should be established. OSHA reasoned that, rather than rendering the provision vague, defining a beryllium work area in a performance-based manner left employers flexibility in complying with the standard (82 FR at 2659). Nevertheless, following publication of the 2017 standard, OSHA continued to hear from stakeholders that the definition of beryllium work area remained a source of substantial uncertainty and confusion. Some stakeholders expressed concern that defining a beryllium work area to include any area where unspecified processes can reasonably be expected to generate any level of airborne beryllium, or where there is a process or operation that can release beryllium or the potential for dermal contact with beryllium, could lead to the designation of entire facilities as beryllium work areas because minute quantities of beryllium can sometimes be detected in areas of a facility far distant from the work processes that create beryllium exposures. Stakeholders requested that OSHA provide a list of operations that are known to release airborne beryllium, which would allow employers to more accurately identify where beryllium work areas must be established and demarcated at their workplaces. As described in more detail below, stakeholders also requested that ‘‘dermal contact’’ be removed from the definition of beryllium work area. In response to this feedback, OSHA proposed in this rulemaking to modify the definition of beryllium work area to provide clarity for employers on where VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 and when to establish a beryllium work area. First, OSHA proposed a new appendix to the standard (Appendix A), containing Table A.1, which includes a list of operations that are commonly performed when processing beryllium materials and are known to generate airborne beryllium. OSHA proposed to revise the definition of beryllium work area so that any work area where an operation that is listed in proposed Appendix A occurs, and involves materials containing at least 0.1 percent beryllium by weight, is a beryllium work area. For work areas where no operations listed in proposed Appendix A occur, the proposed definition would require a beryllium work area wherever materials containing at least 0.1 percent beryllium by weight are processed and where employees are, or can be reasonably expected to be, exposed to airborne beryllium at or above the action level. The list of operations in Table A.1 was compiled based on the experience of Materion, the primary beryllium manufacturer in the United States, and the USW, the primary union representing employees with beryllium exposure.10 As noted in the preamble to the 2018 NPRM, OSHA intends the list to cover all operations and processes that have the potential for exposure to airborne beryllium (83 FR at 63761). Second, OSHA proposed to remove the reference to dermal contact from the definition of the term beryllium work area. OSHA preliminarily determined that this change would make it less likely that the definition could be misinterpreted as extending to areas of a facility where work processes or operations that release beryllium do not occur or even to entire facilities (83 FR at 63749). Further, the agency explained that it was unaware of berylliumreleasing processes or operations that have a potential for dermal contact that are not included in the proposed Appendix A or do not generate airborne exposures at or above the action level (83 FR at 63749). Therefore, OSHA preliminarily determined that the proposed change would be as protective as the previous definition, while more clearly avoiding the erroneous perception that the standard would require employers to treat entire facilities as beryllium work areas. Comments submitted in response to the NPRM showed general support from employers, unions, and public health experts for OSHA’s proposed approach 10 Table A.1 is divided into three categories: (1) Beryllium Metal Alloy Operations (generally <10% beryllium by weight); (2) Beryllium Composite Operations (generally >10% beryllium by weight) and Beryllium Metal Operations; and (3) Beryllium Oxide Operations. PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 42599 and for providing better clarity with respect to beryllium work areas (Document ID 0017; 0022, pp. 6–7; 0029, p. 1; 0033, pp. 1–4; 0038, pp. 8– 9). For example, the USW agreed with OSHA that the revisions proposed in the NPRM would make the definition more precise and help to ensure that employers can appropriately comply with the standard. The USW stated that the proposed definition ‘‘provides employers with a clearer means of understanding when and where demarcation is required’’ for beryllium work areas (Document ID 0033, p. 2). Materion likewise indicated that this new approach ‘‘greatly improves and simplifies an understanding of where beryllium work areas should be in a facility, allowing employers and employees to know and understand how to comply with the requirement to establish these protective work areas’’ (Document ID 0038, p. 9). While there was general support for this proposed approach to beryllium work areas, several commenters expressed concerns about various aspects of the new definition and new Appendix A. For example, DOSH agreed that the addition of a new Appendix A would provide clarity to the beryllium work area requirements but expressed concern that removal of the dermal contact trigger would reduce worker protections. DOSH suggested the use of a defined lower limit for beryllium contamination on surfaces that would address this concern while maintaining the protection for workers (Document ID 0023, pp. 1–2). OSHA does not agree that removing the reference to dermal contact from the definition of the term beryllium work area reduces protections. As noted above and explained in both the preambles to the 2017 final rule and the 2018 NPRM, OSHA’s intent was to capture those areas of a facility where beryllium-generating processes or operations are located; OSHA never intended for dermal contact alone to trigger the standard’s beryllium work area requirements (82 FR at 2659; 83 FR at 63748). Contrary to DOSH’s assertion, the requirement to establish a beryllium work area was dependent on the presence of a process or operation that can release beryllium and that involves material that contains at least 0.1 percent beryllium by weight in the area in question; exposure alone, whether airborne or dermal, was never a trigger for the beryllium work area requirements. Moreover, again as noted above, OSHA explained in the 2018 NPRM that it did not know of any berylliumreleasing processes or operations with E:\FR\FM\14JYR3.SGM 14JYR3 42600 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations the potential for dermal contact that are not included in the proposed Appendix A or that do not generate airborne exposures at or above the action level. Put more simply, OSHA was unaware of any situation where an employer would be required to establish a beryllium work area under the previous definition but would not be required to do so under the proposed definition. However, in the interest of caution, OSHA asked stakeholders specifically whether there are any operations or processes that trigger beryllium work areas under the previous definition that would not be covered under the proposed definition (83 FR at 63749). Commenters did not point to any such processes. On the contrary, the only stakeholder to squarely address this issue, Materion, noted that it too was ‘‘unaware of work areas containing beryllium-releasing processes or operations that have a potential for dermal contact that are not included in the proposed Appendix A or generate airborne exposures at or above the action level’’ (Document ID 0038 p. 13). Furthermore, another stakeholder, the USW commented that it supported OSHA’s proposed removal of the reference to dermal contact from the definition of the term beryllium work area (Document ID 0033, p. 3). The USW stated that it does not have reservations about the proposed change and explained its belief ‘‘that dermal exposure is properly addressed elsewhere in the standard’’ (Document ID 0033, pp. 1–3). According to the USW, ‘‘[a]lthough dermal exposure to beryllium is important and must be properly addressed, removal of dermal exposure from this definition will reduce the confounding factors that might result in unnecessarily extending beryllium work areas beyond needed portions of a workplace’’ (Document ID 0033, p. 3). In addition, DOSH did not explain why it believes the change would reduce worker protections. Given that DOSH did not point to any particular loss of worker protection and the lack of evidence of any differences between the coverage of the two definitions, OSHA has decided to adopt the proposed definition, which commenters have indicated reduces the confusion caused by the previous definition. OSHA expects the revised definition to provide clarity on the proper boundaries of a beryllium work area. Employers are required by paragraph (j)(1), in conjunction with paragraph (f)(1), to minimize the migration of beryllium from beryllium work areas, and clearly defining the beryllium work area ensures employees working outside of VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 these areas receive the protective benefits of these requirements. If a beryllium work area is defined overly broadly, then more employees may inadvertently be exposed to beryllium within the beryllium work area and would not receive some of these benefits. Moreover, as stated in the 2018 NPRM, PPE requirements to protect against dermal exposure to beryllium do not depend on the existence of a beryllium work area. The standard requires employers to provide and ensure the use of appropriate PPE whenever there is a reasonable expectation of dermal contact with beryllium, regardless of whether or not the area is a beryllium work area (see 83 FR at 63749). OSHA also does not agree with DOSH that a lower limit for beryllium contamination on surfaces is necessary as a trigger for establishing a beryllium work area. In the 2017 final rule, OSHA chose not to set quantitative limits for surface contamination because the best available scientific evidence on adverse health effects from dermal contact with beryllium made it difficult to identify an appropriate limit for surface contamination (82 FR at 2688). This remains the case today. OSHA discusses the limitations of this data more fully below in the Summary and Explanation of the definition of dermal contact with beryllium. Two commenters objected to the exemption for materials that contain less than 0.1 percent beryllium from the definition of beryllium work area (Document ID 0022, p. 7; 0027, p. 2). However, OSHA incorporated this change in the 2018 direct final rule. At the time, OSHA explained that it was never the agency’s intent that the requirements related to beryllium work areas apply to these materials (83 FR 19936, 19938 (May 7, 2018)). OSHA did not receive any adverse comments on the direct final rule and therefore finalized the change. The 2018 NPRM did not propose to amend this portion of the definition and therefore comments related to the 0.1 percent limitation are not within the scope of this rulemaking. OSHA also received comments on the new Appendix A. NJH expressed concerns that the proposed list of operations in Appendix A was geared toward manufacturing and that it ‘‘may restrict employers’ interpretations of a beryllium work area and prevent employees from the protections afforded by the beryllium standard. Employers may only consider these featured tasks as those that dictate a beryllium work area, when other tasks may be considered as such’’ (Document ID PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 0022, pp. 6–7). OSHA believes NJH’s concern is misplaced. First, OSHA requested comment on whether there were additional operations that should be included on the list of operations in Appendix A, and no suggestions for additional operations were put forth by commenters. More importantly, the final standard requires that a beryllium work area be established if exposures can reasonably be expected to exceed the action level where materials that contain at least 0.1 percent beryllium by weight are processed, regardless of whether the operation is listed in Appendix A. As the USW noted, this requirement ‘‘provides a backstop for any unforeseen operation which can expose employees above the action level’’ (Document ID 0033, p. 2). Thus, employees who may be exposed above the action level during a process not listed in Appendix A will still receive the protections afforded by the beryllium work area requirements. DOD, while generally supportive of the proposed definition of beryllium work area, expressed some concerns about Appendix A (Document ID 0029, p. 1). First, DOD suggested, without explanation, that OSHA remove the word ‘‘generally’’ from the description of the table in Appendix A, which describes beryllium metal alloy operations as being ‘‘generally < 10% beryllium by weight’’ and beryllium composite operations as being ‘‘generally ≤ 10% beryllium by weight.’’ OSHA disagrees with this suggestion. The table in Appendix A reflects materials that are on the market today. However, the inclusion of the word ‘‘generally’’ accounts for the possibility of beryllium metal alloy operations and beryllium composite operations involving different materials. Thus, if alloys are developed with greater than 10 percent beryllium or composites less than 10 percent beryllium, these materials will be covered under Table A.1. Because OSHA does not intend to limit Table A.1 to processes involving only those materials on the market today, the agency is retaining the word ‘‘generally’’ in the description of the tables in Appendix A.11 11 The agency notes that DOD’s comment suggests there might be some confusion as to whether beryllium alloys and beryllium composites are analogous. In fact, these materials have different structures and should be treated differently from a control strategy point of view. A metal alloy is a metal which is a homogeneous mixture of two or more metals or of a metal and another element to provide unique characteristics or properties (see https://www.thefreedictionary.com/Metal+alloy). A ‘‘beryllium composite,’’ on the other hand, is a metal matrix composite or (MMC) which typically contain at least two distinct constituent parts (see https://www.azom.com/article.aspx? ArticleID=9843). E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations DOD, along with DOSH, also questioned the deletion of the Appendix A published with the 2017 final beryllium rule. That old appendix provided non-mandatory general control strategies for common operations. These commenters thought that the old appendix was useful and should be retained in the standard (Document ID 0029, p. 1; 0023, p. 3). OSHA agrees that the old appendix contained useful information, but expects that in time it would have become either obsolete or incomplete. Instead, OSHA plans to provide this information about general control strategies in guidance materials tailored to reach the targeted audience. This will make it easier to update as new technologies or beryllium processes become available. In addition, under paragraph (f)(2), Engineering and work practices, employers are obligated to use engineering controls in beryllium work areas. OSHA requires employers to use at least one type of control that is listed in paragraph (f)(2)(ii) (substitution, isolation, local exhaust ventilation, or process controls) unless controls are infeasible or exposures are demonstrated to be below the action level. These general controls are the same types of controls that were listed in Appendix A and are required regardless of whether that appendix is retained. For these reasons, this final standard does not retain the old Appendix A. Materion fully supported the proposed changes to the beryllium work area definition and the proposed Appendix A. However, it noted a typographical error in Appendix A for ‘‘High Speed Machining (≤ 10,000 rpm),’’ which should be (≤ 10,000 rpm) (Document ID 0038, p. 10). OSHA agrees that the entry in the NPRM’s Appendix A is incorrect and made the appropriate correction in this final rule. After careful consideration of the record, OSHA has determined that the revised definition of beryllium work area will improve compliance with the standard by providing greater clarity to employers regarding when and where beryllium work areas should be established in the workplace. The agency further finds that properly identifying beryllium work areas will reduce potential exposure for workers outside of these areas through the various provisions triggered by beryllium work areas. In sum, OSHA has determined that the revision to the definition of beryllium work area will ensure that the standard’s requirements related to beryllium work areas are workable and properly understood. Therefore, OSHA has decided to finalize VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 the definition of beryllium work area and the corresponding update to Appendix A as proposed, with the exception of correcting the typographical error in Appendix A noted by Materion. CBD diagnostic center. OSHA is amending the 2017 final rule’s definition of CBD diagnostic center to clarify certain requirements used to qualify an existing medical facility as a CBD diagnostic center. The clarification does not change the requirement for the employer to offer a follow-up examination at a CBD diagnostic center to employees meeting the criteria set forth in paragraph (k). OSHA is defining CBD diagnostic center to mean a medical diagnostic center that has a pulmonologist or pulmonary specialist on staff and on-site facilities to perform a clinical evaluation for the presence of CBD. The revised definition also states that a CBD diagnostic center must have the capacity to perform pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. In the revised definition, the CBD diagnostic center must also have the capacity to transfer BAL samples to a laboratory for appropriate diagnostic testing within 24 hours and the pulmonologist or pulmonary specialist must be able to interpret the biopsy pathology and the BAL diagnostic test results. This definition is identical to the definition of CBD diagnostic center that OSHA proposed in the 2018 NPRM. The revised definition of CBD diagnostic center differs from the former definition in a number of ways. First, whereas the 2017 final rule’s definition specified only that a CBD diagnostic center must have a pulmonary specialist, OSHA is adding the term ‘‘pulmonologist’’ to clarify that either type of specialist is qualified to perform a clinical evaluation for the presence of CBD. Additionally, the 2017 definition required that a CBD diagnostic center have an on-site pulmonary specialist. The revised definition states that the CBD diagnostic center must simply have a pulmonologist or pulmonary specialist on staff. This clarifies OSHA’s intent that a specialist must be available to the CBD diagnostic center but need not necessarily be on site at all times. In their comments on the 2018 NPRM, two commenters, NJH and the ATS, recommended that a pulmonologist, occupational medicine specialist, or physician with expertise in beryllium disease should conduct the clinical evaluation for CBD and that a pulmonologist should be on staff or available to perform the bronchoscopy PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 42601 (Document ID 0022, p. 2; 0021, p. 2). According to NJH, clinics that regularly evaluate patients for CBD have physicians with experience in occupational health conduct the clinical evaluation for CBD, in conjunction with a pulmonologist who performs a bronchoscopy (Document ID 0022, pp. 2–3). OSHA notes that, although the agency is requiring facilities to have a pulmonologist or pulmonary specialist on staff who is able to interpret the biopsy pathology and the BAL diagnostic test results, OSHA does not intend that all aspects of clinical evaluation for CBD must be performed by a pulmonologist or pulmonary specialist. In the preamble to the 2017 final rule, OSHA explained that the agency was defining a CBD diagnostic center as a facility with a pulmonary specialist ‘‘on-site’’ specifically to indicate that the specialist need not personally perform the BeLPT testing (82 FR at 2645). Moreover, paragraph (k)(7), which sets out the substantive requirements for the evaluation at the CBD diagnostic center, refers to recommendations of the ‘‘examining physician,’’ not necessarily the pulmonologist or pulmonary specialist. Paragraph (b), in turn, defines physician or other licensed health care professional (PLHCP) as an individual licensed to provide some or all of the services required by paragraph (k). As such, some parts of the evaluation, such as lung function tests, might be performed by a certified medical professional other than a pulmonologist or pulmonary specialist. The arrangement that NJH describes as typical for clinics treating CBD patients, in which physicians with experience in occupational health conduct the clinical evaluation for CBD in conjunction with a pulmonologist who performs a bronchoscopy, is consistent with OSHA’s intent for the definition of CBD diagnostic center and other provisions of the standard related to CBD diagnosis. Therefore, OSHA has determined that it is not necessary to revise the definition of CBD diagnostic center to require that the clinical evaluation for CBD be conducted by a pulmonologist, occupational medicine specialist, or physician with expertise in beryllium disease. An additional change to the definition of CBD diagnostic center clarifies that the diagnostic center must have the capacity to perform pulmonary function testing (according to American Thoracic Society criteria), bronchoalveolar lavage (BAL), and tranbronchial biopsy. OSHA determined that the former definition— which stated that the evaluation at the E:\FR\FM\14JYR3.SGM 14JYR3 42602 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations diagnostic center ‘‘must include’’ these tests—could have been misinterpreted to mean that the examining physician was required to perform each of these tests during every clinical evaluation at a CBD diagnostic center. The agency’s intent is not to dictate which tests an evaluation at a CBD diagnostic center should include, but to ensure that any CBD diagnostic center has the capacity to perform any of these tests, which are commonly needed to diagnose CBD. OSHA expects that these are the tests that would most commonly be requested for a CBD evaluation. Therefore, the agency is revising the definition to clarify that the CBD diagnostic center must simply have the ability to perform each of these tests when deemed appropriate. These changes clarify the definition of CBD diagnostic center, and OSHA expects they will maintain safety and health protections for workers. Materion submitted comments supporting OSHA’s intent to specify the required capacities of a CBD diagnostic center, rather than the contents of a CBD evaluation, in the definition of CBD diagnostic center (Document ID 0038, pp. 16–17). NJH expressed concern that this change to the definition may indicate that the clinical evaluation for CBD need not include certain aspects of a CBD evaluation, which NJH, the Association of Occupational and Environmental Clinics (AOEC), and the ATS recommend should typically include full pulmonary function testing (lung volumes, spirometry, and diffusion capacity for carbon monoxide), chest imaging, and cardiopulmonary exercise testing, and may also include bronchoscopy in some cases (Document ID 0022, p. 3; 0028, p. 2; 0021, pp. 1–2). Similarly, the ATS commented that not requiring certain diagnostic tests ‘‘could reduce the potential to diagnose CBD and determine disease severity’’ (Document ID 0021, p. 3). NJH recommended that OSHA require the ATS recommendations for diagnostic evaluation, which the NJH stated include the BeLPT; pulmonary function testing and chest imaging; and in some cases bronchoscopy (Document ID 0022, p. 3). As explained below in the Summary and Explanation of paragraph (k)(7), that provision—which establishes the substantive requirements for the evaluation at the CBD diagnostic center—makes clear that the employer must offer any tests that the examining physician at the CBD diagnostic center deems appropriate. The definition of CBD diagnostic center in paragraph (b) does not alter this requirement. In light VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 of paragraph (k), the revised definition of CBD diagnostic center cannot reasonably be read to limit the types of tests available to the employee (see the Summary and Explanation for paragraph (k)(7) for a full discussion of this topic). Thus, after considering these comments, OSHA has decided to retain the proposed change to the definition of CBD diagnostic center. Chronic beryllium disease (CBD). OSHA is also amending the definition of chronic beryllium disease. For the purposes of this standard, the agency is using the term chronic beryllium disease to mean a chronic granulomatous lung disease caused by inhalation of airborne beryllium by an individual who is beryllium sensitized. OSHA is finalizing the definition as proposed. It includes several changes to the 2017 final rule’s definition of chronic beryllium disease, which was ‘‘a chronic lung disease associated with exposure to airborne beryllium’’ (82 FR at 2645–46). The revisions serve to differentiate CBD from other respiratory diseases associated with beryllium exposure (e.g., lung cancer) and to make clear that beryllium sensitization and the presence of beryllium in the lung are essential in the development of CBD (see 82 FR at 2492). First, OSHA is adding the term ‘‘granulomatous’’ to the definition. A granulomatous lung formation is a focal collection of inflammatory cells (e.g., Tcells) creating a nodule in the lung (see Ohshimo et al., 2017, Document ID OSHA–H005C–2006–0870–2171, p. 2). The formation of the type of lung granuloma specific to a beryllium immune response can occur only in those with CBD (82 FR at 2492–2502). Next, OSHA is removing the phrase ‘‘associated with airborne exposure to beryllium’’ and replacing it with ‘‘caused by inhalation of airborne beryllium.’’ This change is more consistent with the findings in the 2017 final rule that beryllium is the causative agent for CBD and that CBD occurs only after inhalation of beryllium (82 FR at 2513). Finally, OSHA is clarifying that CBD is caused by inhalation of airborne beryllium ‘‘by an individual who is beryllium sensitized.’’ Along with the revised definition of beryllium sensitization discussed above, this revision emphasizes to employers and employees the role that beryllium sensitization plays in the development of CBD. NJH, the USW, and Materion agreed with OSHA that the 2017 final standard’s definition of chronic beryllium disease should be clarified. Materion supported the changes OSHA proposed, which it characterized as a PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 necessary clarification to ensure the definition provided is specific to chronic beryllium disease (Document ID 0038, p. 17). The USW similarly supported the proposed definition, stating that it clarifies the previous definition which ‘‘could be read to apply to any chronic lung disease caused by beryllium, including lung cancer’’ (Document ID 0033, p. 5). These comments reinforce OSHA’s determination that adding the term ‘‘granulomatous’’ to the definition will better distinguish CBD from other occupationally associated chronic pulmonary diseases. As OSHA explained in the preamble to the 2017 final rule, the formation of the type of lung granuloma specific to a beryllium immune response can occur only in those with CBD (82 FR at 2492–2502). Several commenters expressed concern that the proposed definition of chronic beryllium disease does not provide sufficient information to guide diagnosis of CBD, and specifically that OSHA’s emphasis on the role of sensitization in the development of CBD may confuse diagnostic efforts. The ATS noted that demonstrating beryllium sensitization may be challenging in certain settings and recommended that OSHA’s definition of chronic beryllium disease use the diagnostic criteria for CBD outlined in a 2014 ATS document on diagnosis and management of beryllium sensitivity and CBD (‘‘the ATS Statement’’). These diagnostic criteria include confirmation of an immune response to beryllium and granulomatous lung inflammation using lung biopsy and emphasize the various approaches which may be used ‘‘[d]epending on the clinical setting, feasibility of certain diagnostic tests, and degree of diagnostic certainty needed’’ (Document ID 0021, p. 5). DOSH similarly emphasized that individuals may be diagnosed with CBD without a confirmed positive BeLPT result and advocated that the definition of chronic beryllium disease ‘‘ensure employers and medical providers are given a clear expectation of how beryllium conditions are properly identified’’ (Document ID 0023, p. 2). OSHA notes that the standard’s definition of chronic beryllium disease is not intended to provide criteria for the diagnosis of CBD. The agency’s intent is to provide readers who may have little or no familiarity with CBD with a general understanding of the term, rather than to provide diagnostic criteria for healthcare professionals in addressing CBD. Due to differences in individual cases and circumstances, medical specialists may need to apply somewhat different E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations testing regimens and/or diagnostic criteria to different individuals they evaluate for CBD. Furthermore, the diagnostic tools and criteria available to medical specialists may change over time. As discussed in the Summary and Explanation for paragraph (k)(7), OSHA believes that the physician at the CBD diagnostic center should have the latitude to use any tests he or she deems appropriate for the purpose of diagnosing or otherwise evaluating CBD in a patient, and has revised paragraph (k)(7) to make this clear. Therefore, OSHA has determined that it is neither necessary nor appropriate to specify diagnostic criteria in the beryllium standard’s definition of chronic beryllium disease. Instead, OSHA has decided to retain a definition that provides the reader with a general understanding of the term. NJH suggested that the agency define chronic beryllium disease as a disease ‘‘characterized by evidence of granulomatous lung inflammation in an individual who is sensitized to beryllium.’’ According to NJH, this definition would allow for diagnosis based on different combinations of clinical evaluation results as detailed the ATS Statement (Document ID 0022, p. 3). OSHA believes that the definition the agency proposed—a chronic granulomatous lung disease caused by inhalation of airborne beryllium by an individual who is beryllium sensitized—conveys the substance of NJH’s recommended definition while also emphasizing that CBD results from the inhalation of airborne beryllium. OSHA has therefore decided not to adopt the definition NJH suggested. The ATS expressed concern that OSHA’s proposed changes to the definition of chronic beryllium disease could create confusion in the diagnosis of CBD because it may be challenging in certain settings to identify sensitization and granulomatous lung disease based on lung pathology (Document ID 0021, p. 5). DOSH similarly commented that the proposed definition may be misleading because, although those with CBD have sensitization to beryllium, the current testing for sensitization has a high false-negative rate and individuals may be diagnosed with CBD without first being confirmed positive for beryllium sensitization (Document ID 0023, p. 2). Although OSHA agrees that employees may be diagnosed with CBD without confirmed positive BeLPT results, the agency does not agree with these commenters that references to sensitization should be excluded from the definition of chronic beryllium disease. OSHA first notes that neither VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 DOSH nor the ATS contend that OSHA’s definition is inaccurate. Furthermore, as OSHA explained previously in its discussion of the beryllium sensitization definition, the agency believes that a correct understanding of the relationship between beryllium sensitization and CBD is key to workers’ and employers’ understanding of many provisions of the beryllium standard. By stating the role that sensitization plays in the development of CBD in the standard’s definition of chronic beryllium disease, OSHA intends to convey clearly to the regulated community why protecting workers from becoming beryllium sensitized is key to the prevention of CBD and why workers who are confirmed positive for beryllium sensitization should be offered both a clinical evaluation for CBD and medical removal protection. OSHA acknowledges that it is not always necessary to identify a worker as confirmed positive for beryllium sensitization using the BeLPT as part of a diagnosis of CBD and that the BeLPT can yield false-negative results in some individuals. For this reason, an examining physician should have the latitude to diagnose CBD even in the absence of a ‘‘confirmed positive’’ pattern of BeLPT results. As explained in the Summary and Explanation of paragraph (k)(7) of the 2017 final rule, that provision gives the examining physician this latitude (82 FR 2704, 2709). Because the substantive provisions of the standard leave the examining physician discretion in diagnosing CBD, OSHA does not agree that acknowledging the role of beryllium sensitization in the development of CBD will result in diagnostic confusion. The NSSP recommended the following addition to OSHA’s proposed definition of chronic beryllium disease: ‘‘The presence of interstitial mononuclear cell (T cell) infiltrates (lymphocytosis) is characteristic of chronic beryllium disease’’ (Document ID 0027, pp. 3–4). The NSSP argued that the presence of these infiltrates on lung biopsy indicates the presence of chronic beryllium disease, and should therefore be included in the standard’s definition (Document ID 0027, p. 4). OSHA disagrees. The agency believes that the term ‘‘granulomatous’’ sufficiently addresses the presence of T-cell infiltrates, which occur at an early stage in the development of granulomas (82 FR at 2492–2502). As discussed previously, OSHA’s intent in defining chronic beryllium disease is to provide the reader a general understanding of what CBD is, rather than provide a PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 42603 technical definition for diagnostic use. The suggested addition is not necessary to describe the nature of CBD in general terms. With the addition of the term ‘‘granulomatous,’’ the definition is sufficiently specific for OSHA’s purposes in the context of paragraph (b). In summary, for the purposes of this standard OSHA is defining chronic beryllium disease as a chronic granulomatous lung disease caused by inhalation of airborne beryllium by an individual who is beryllium sensitized. This definition is identical to the definition of chronic beryllium disease OSHA proposed in 2018 and includes only minor changes from the definition included in the 2017 final standard. OSHA is providing this definition to enhance stakeholders’ general understanding of the beryllium standard; it is neither intended nor suitable to provide guidance to medical professionals on the diagnosis of CBD. OSHA expects these changes to the 2017 definition of chronic beryllium disease will clarify the standard, and will therefore maintain safety and health protections for workers. Confirmed positive. OSHA is amending the definition of confirmed positive to mean (1) the person tested has had two abnormal BeLPT test results, an abnormal and a borderline test result, or three borderline test results, obtained from tests conducted within a three-year period; or (2) the result of a more reliable and accurate test indicating a person has been identified as having beryllium sensitization. The revised definition includes several changes to the 2017 definition of confirmed positive and one change from the definition of confirmed positive that OSHA proposed in the 2018 NPRM. First, the agency is removing the phrase ‘‘beryllium sensitization’’ from the first sentence of the definition, which previously stated that a person is confirmed positive if that person has beryllium sensitization, as indicated by two abnormal BeLPT test results, an abnormal and a borderline test result, or three borderline test results. OSHA intends that confirmed positive act only as a trigger for requirements such as continued medical monitoring and surveillance for the purposes of this standard, and not as a general-purpose definition of beryllium sensitization. By removing the phrase ‘‘beryllium sensitization’’ from the first sentence of the definition, the agency hopes to avoid confusion resulting from scientific disagreements over whether certain test results, such as three borderlines, necessarily prove that sensitization has occurred. For purposes of the beryllium E:\FR\FM\14JYR3.SGM 14JYR3 42604 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations standard, any worker with the BeLPT test results specified in the definition of confirmed positive should be offered an evaluation for CBD with continued medical surveillance as well as the option of medical removal protection, even though some small percentage of workers who are confirmed positive by this definition may not in fact be sensitized to beryllium, as is the case for any diagnostic test (Middleton et al., 2008 (Document ID OSHA–H005C– 2006–0870–0480, p. 4)).12 Both the USW and Materion supported this proposed revision. The USW stated that the former definition of confirmed positive had acted ‘‘as a de facto definition of sensitization’’ and that removing the phrase from this portion of the definition ensures that a finding of confirmed positive will trigger medical surveillance and medical removal protection ‘‘without an intermediate stop at a finding of sensitization’’ (Document ID 0033, p. 5). Similarly, Materion commented that the revised definition allows individuals with three borderline BeLPT results to obtain the protections of the standard, including evaluation for CBD and medical removal protection, without necessarily being ‘‘declared sensitized’’ (Document ID 0038, p. 18). Materion further asserted that the change enhances employee protection by increasing the number of persons eligible for further testing (Document ID 0038, p. 19). NJH opposed the revised definition, asserting that the removal of the phrase ‘‘beryllium sensitization’’ could prevent individuals who meet the definition of being confirmed positive from being identified as sensitized. NJH further expressed concern that this could make it difficult for some workers to access the medical testing and workplace protections required by the rule (Document ID 0022, p. 4). The ATS and the AOEC also disagreed with the removal of the phrase ‘‘beryllium sensitization’’ from the definition of confirmed positive, stating the medically accepted interpretation of BeLPT testing results is that they indicate beryllium sensitization, and that removing this phrase may cause confusion about what condition the term confirmed positive refers to (Document ID 0021, p. 3; 0028, 12 In the preamble to the 2017 final rule, OSHA found that three borderline BeLPT results recognize a change in a person’s immune system with respect to beryllium exposure based on Middleton et al.’s 2011 finding that three borderline BeLPT results have a positive predictive value (PPV) of over 90 percent (82 FR at 2501), and therefore the agency included three borderline results in the criteria for confirmed positive (82 FR at 2646). VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 p. 2). The ATS further stated without explanation that removing the term ‘‘beryllium sensitization’’ from the definition of confirmed positive would reduce worker protections.13 The NSSP also expressed disagreement with OSHA’s proposal to remove ‘‘beryllium sensitization’’ from the first part of the confirmed positive definition, but did not state the reasons for their concern (Document ID 0027, p. 3). Following consideration of the concerns raised by these organizations, OSHA disagrees that removing the phrase ‘‘beryllium sensitization’’ from the first sentence of the definition of confirmed positive will create confusion or reduce worker protections. The provisions of the standard intended to benefit workers who may be sensitized (evaluation at a CBD diagnostic center and medical removal protection) are available to all workers who meet the definition of confirmed positive. Therefore, removing the term ‘‘beryllium sensitization’’ from the first sentence of the definition will not change the access to these benefits for any workers. By removing the term ‘‘beryllium sensitization’’ from the first sentence of the definition, OSHA seeks to ensure that workers with three borderline BeLPT results (or other patterns of test results that some physician or other licensed health care professionals (PLHCPs) may consider ambiguous) will receive the benefits of the standard regardless of whether their PLHCP views their results as firm evidence of sensitization. Furthermore, OSHA disagrees that removing the reference to ‘‘beryllium sensitization’’ will lead to confusion about what the BeLPT results are supposed to indicate because the second sentence of the definition of confirmed positive makes clear that a worker who has been diagnosed with beryllium sensitization would also meet the definition of confirmed positive: ‘‘It [confirmed positive] also means the result of a more reliable and accurate test indicating a person has been identified as having beryllium sensitization.’’ An additional change to the definition of confirmed positive provides that the 13 The ATS also asserted that the removal of the phrase ‘‘beryllium sensitization’’ would reduce workers’ right to file for worker’s compensation (Document ID 0021, p. 3). The ATS did not explain how the definition of confirmed positive in the beryllium standard could affect worker’s compensation claims and at least one other commenter questioned the ATS’s assertion (see Document ID 0038, p. 19). Regardless, OSHA intends the definition of confirmed positive to serve only as a trigger for certain provisions of the beryllium standard. How OSHA defines this phrase for purposes of the beryllium standard in no way limits healthcare professionals’ ability or incentive to diagnose beryllium sensitization. PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 findings of two abnormal, one abnormal and one borderline, or three borderline results need to occur from BeLPTs conducted within a three-year period. This change in the definition of confirmed positive differs from the proposal and is based on comments submitted to the record following publication of the 2018 NPRM. The 2017 final rule did not specify a time limit within which the BeLPT tests that contribute toward a finding of ‘‘confirmed positive’’ must occur. After publication of the 2017 final rule, stakeholders suggested to OSHA that the definition of confirmed positive could be interpreted as meaning that findings of two abnormal, one abnormal and one borderline, or three borderline results over any time period, even as long as 10 years, would result in the employee being confirmed positive and automatically referred to a CBD diagnostic center for evaluation. As discussed in the preamble to the 2017 standard, clinical evaluation for CBD involves bronchoalveolar lavage and biopsy (82 FR at 2497) which, like all invasive medical procedures, carry risks of infection and other complications.14 Given such risks, and the possibility that some repeat abnormal or borderline results obtained over a long period of time could be false positives, it was not the agency’s intent that workers with rarely recurring abnormal or borderline BeLPT results should necessarily proceed to evaluation at a CBD diagnostic center unless recommended to do so by their examining physician. At the same time, OSHA notes that under paragraph (k)(5)(iii), the licensed physician performing the BeLPT testing retains the discretion to refer an employee to a CBD diagnostic center if the licensed physician deems it appropriate, regardless of the BeLPT result. In the 2018 NPRM OSHA proposed that any combination of test results specified in the definition of confirmed positive must result from the tests conducted in one cycle of testing, including the initial BeLPT and the follow-up retesting offered within 30 days of an abnormal or borderline result (paragraph (k)(3)(ii)(E)). As outlined in proposed paragraph (k)(3)(ii)(E), an employee would be offered a follow-up BeLPT within 30 days if the initial test result is anything other than normal, unless the employee had been confirmed positive (e.g., if the initial 14 Bronchoalveolar lavage is a method of ‘‘washing’’ the lungs with fluid inserted via a flexible fiberoptic instrument known as a bronchoscope, removing the fluid and analyzing the content for the inclusion of immune cells reactive to beryllium exposure (82 FR at 2497). E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations BeLPT was performed on a split sample and showed two abnormal results). Thus, for example, if an employee’s initial test result was abnormal, and the result of the follow-up testing offered to confirm the initial test result was abnormal or borderline, the employee would be confirmed positive. Alternatively, if the result of the followup testing offered to confirm the initial abnormal test result was normal, the employee would not be confirmed positive. Any additional abnormal or borderline results obtained from the next required BeLPT for that employee (typically, two years later) would not identify that employee as confirmed positive under the proposed modification to confirmed positive. OSHA requested comments on the appropriateness of this proposed time period. Several stakeholders, including Materion, NJH, the ATS, DOSH, the NSSP, the AOEC, the USW, and The American College of Occupational and Environmental Medicine (ACOEM), submitted comments regarding OSHA’s proposal to require that the test results specified in the agency’s definition of confirmed positive must occur within a single testing cycle. Commenters focused on several aspects of the proposed timing. First, many of the comments focused on the logistics of OSHA’s proposed change. Materion supported the proposed definition of confirmed positive, stating that a 30-day allowance for follow-up testing after a first abnormal or borderline BeLPT result is appropriate to ensure that testing is completed in a timely manner (Document ID 0038, p. 17). However, NJH, the ATS, ACOEM, the USW, and the NSSP all indicated that requiring results with a 30-day testing cycle could create logistical challenges, for example due to repeat testing requirements or for businesses in remote areas with limited healthcare facilities (Document ID 0022, p. 4; 0021, p. 4; 0024, p. 1; 0033, p. 5; 0027, p. 3). In this final rule and preamble, OSHA clarifies that it did not intend that the initial and follow-up tests had to be completed and interpreted within 30 days. It intended that the test results used to determine if a worker is confirmed positive be obtained during one cycle of testing (i.e., an initial or periodic examination), including follow-up testing conducted within 30 days of an abnormal or borderline result. Secondly, stakeholders commented on the appropriateness of limiting the use of the BeLPT from one test cycle in determining if a worker is confirmed positive. Materion agreed with the proposed timing and commented that VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 the change ‘‘increases employee protections by establishing an employee as confirmed positive in a shorter time frame, thus, making the medical removal benefit option available to the worker in a more timely manner’’ (Document ID 0038, p. 19). Stakeholders from the medical community disagreed and raised concerns that limiting test results to one test cycle would affect the ability to identify workers who should be referred for a CBD evaluation and receive other protections under the standard. The NSSP cited data from healthcare providers to demonstrate that a 30-day testing cycle is insufficient to properly identify sensitized workers. According to the NSSP, in over 20 years of conducting BeLPTs in worker populations, Oak Ridge Associated Universities observed approximate median times of 45 days (range of 3 days to 16 years) between first and second abnormal tests, 1.5 years (range of 30 days to 11 years) for the abnormal/ borderline test combination, and 1 year (range of 30 days to 11 years) for three borderlines (Document ID 0027, p. 3). Under the proposed 30-day requirement, the NSSP stated that the majority of workers who have been identified as sensitized in the past would not meet the proposed definition of confirmed positive (Document ID 0027, p. 3). NJH reported similar findings in new evidence submitted to the record (Document ID 0022, pp. 4–5). The evidence indicates that many workers who develop CBD have abnormal or borderline results that do not immediately repeat upon retesting. To the contrary, many CBD patients have a series of tests which alternate between normal and abnormal. Data based on NJH’s extensive experience show that the BeLPT does not yield consistently abnormal results among CBD patients. Of 194 patients diagnosed with CBD at NJH, the length of time between abnormal results ranged from 14 days to 5.8 years, with a 95th percentile of 2.9 years. In this group, 150 patients (or 77 percent) would not have been evaluated for CBD if two abnormal BeLPT results were required to occur within a 30-day testing cycle (Document ID 0022, p. 5). Although the information the NSSP and NJH submitted to the record is unpublished, their findings are consistent with published studies. Kreiss et al. (1997) reported that nine individuals had initial abnormal BeLPT results followed by two normal tests; six of those individuals were re-tested approximately one year later and four were confirmed positive for beryllium sensitization based on abnormal BeLPT PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 42605 results (Document ID OSHA H005C– 2006–0870–1360, pp. 610–12). These findings suggest a high rate of falsenegative results and are consistent with results reported in a study by Stange et al. (2004). That study found an average false-positive rate of 1.09 percent, and a false-negative rate of 27.7 percent for the BeLPT (Document ID OSHA–H005C– 2006–0870–1402, p. 459). Other public health organizations, including DOSH, the ATS, the NSSP, and the AOEC, agreed with NJH that workers who are sensitized to beryllium may show varying test results over time; and restricting the time period for determining ‘‘confirmed positive’’ status to 30 days would cause sensitized individuals to go undetected (Document ID 0023, p. 2; 0021, p. 2; 0027, p. 3; 0028, p. 2). The ATS and the AOEC recommended that results from tests performed up to at least three years after the initial abnormal or borderline test result should be used to determine whether the person tested is confirmed positive for beryllium sensitization (Document ID 0021, p. 2; 0028, p. 2). The ATS stated that a timeframe of at least three years, which encompasses two rounds of regularly scheduled testing required biennially by the beryllium standard, would adequately address its concerns regarding logistical feasibility, would improve diagnostic accuracy, and help ensure that sensitized workers are identified (Document ID 0021, p. 4). The AOEC agreed that consideration of BeLPT test results obtained during a time period of at least three years ‘‘will increase the potential that workers are accurately diagnosed with beryllium sensitization [and] will receive the necessary care’’ (Document ID 0028, p. 2). The approaches recommended by the ATS and the AOEC are similar to the approach NJH used in providing medical surveillance consultation to workforces that use beryllium. NJH stated that, if an individual’s BeLPT results are abnormal and normal on their initial round of BeLPT testing, they will usually request another BeLPT within a month. If the result of that test is normal, they do not request further testing until the next regularly scheduled BeLPT. If the result of the next regularly scheduled BeLPT comes back abnormal, they refer the worker for clinical evaluation even though the tests are separated by the two-year testing cycle (Document ID 0022, p. 5). Following consideration of the comments and of the new evidence submitted to the record following the proposal, OSHA is convinced that some workers who are ultimately found to be sensitized to beryllium or diagnosed E:\FR\FM\14JYR3.SGM 14JYR3 42606 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations with CBD may have alternating abnormal and normal BeLPT results, and that the time period for abnormal or borderline results to repeat can be months or years. OSHA is also convinced that requiring two abnormal, an abnormal and borderline, or three borderline results to occur in one cycle of an initial or periodic exam before an employee can be confirmed positive could result in beryllium sensitization or CBD going undetected in many employees. This is demonstrated by the unpublished data submitted by NJH showing that a substantial percentage of individuals with CBD (77 percent) may not have been referred for further testing based on results obtained within a 30day cycle of testing and is confirmed by the experience of the NSSP. Therefore, OSHA finds that its proposed change would have the unintended and unacceptable consequence of reducing employee protections because some employees who are sensitized or have CBD would be deprived of the benefits available through the standard, such as a timely evaluation at a CBD diagnostic center. In addition, requiring that results be obtained in one test cycle is not consistent with the approaches currently applied or supported by the medical community. For these reasons, OSHA is revising the definition of confirmed positive to specify that the findings of two abnormal, one abnormal and one borderline, or three borderline results must be obtained from BeLPTs conducted within a three-year period. OSHA agrees with the ATS and the AOEC that a three-year period will facilitate the identification of sensitized workers enrolled in medical surveillance (see Document ID 0022, p. 5; 0028, p. 2). In addition, this approach is consistent with the practices and recommendations from the medical community, including NJH, which provides beryllium-related medical surveillance consultation. OSHA believes that allowing a worker to be confirmed positive based on BeLPT results obtained over a three-year time period strikes a reasonable balance that would allow a timely evaluation for CBD, while at the same time, maintaining OSHA’s original intent that a confirmed positive finding not be based on results obtained over an indefinite time period. OSHA emphasizes that this revision does not modify the requirements of paragraph (k)(3)(ii)(E). Under that paragraph, if the results of the BeLPT are other than normal, a follow-up BeLPT must be offered within 30 days of receiving the results, unless the employee has been confirmed positive. VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 Only other than normal BeLPT results must be followed up within 30 days of the same test cycle (i.e., an initial or periodic medical examination). As an example, an employee who receives a borderline result during one periodic examination conducted in 2020 would be retested within 30 days, and if the follow-up test is normal, testing would stop. That employee would be offered another BeLPT at the next periodic examination conducted in 2022. However, if the result of the 2022 test is borderline, the employee would be retested within 30 days of that test result receipt, and if the follow-up test is borderline, the employee would be confirmed positive because of receiving three borderline tests within three years. A three-year period for the employee to be confirmed positive would ensure sufficient time for such follow-up tests that may need to be conducted over two cycles of medical examinations. DOD recommended changing the term ‘‘confirmed positive’’ to another term such as ‘‘confirmed non-negative,’’ ‘‘confirmed finding of concern,’’ or ‘‘pattern of concern.’’ According to the DOD, the term ‘‘confirmed positive’’ typically ‘‘implies an initial positive test that was repeated with another test or another, more sensitive test, which confirms the initial positive test result’’ (Document ID 0029, p. 2). The CBD literature, however, commonly treats individuals as confirmed positive for sensitization through sequentially conducted BeLPTs (see, for example, the ATS Statement on Diagnosis and Management of Beryllium Sensitivity and Chronic Beryllium Disease, ATS 2014, Document ID OSHA–H005C– 2006–0870–0364, p. e41; see also Document ID OSHA–H005C–2006– 0870–1543, 0603, 0398, 1403, 1449). Additionally, OSHA again emphasizes that terms defined in the beryllium standard are defined only for purposes of the standard and are not intended as diagnostic, scientific, or all-purpose definitions. OSHA believes that its definition of confirmed positive clearly indicates what that term means for purposes of the beryllium standard and therefore disagrees with DOD’s concern that the term may cause confusion. Accordingly, OSHA is retaining the term ‘‘confirmed positive’’ in this final standard. Dermal contact with beryllium. Paragraph (b) of this final rule defines dermal contact with beryllium as skin exposure to (1) soluble beryllium compounds containing beryllium in concentrations greater than or equal to 0.1 percent by weight; (2) solutions containing beryllium in concentrations greater than or equal to 0.1 percent by PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 weight; or (3) visible dust, fumes, or mists containing beryllium in concentrations greater than or equal to 0.1 percent by weight. The definition also states that handling of beryllium materials in non-particulate solid form that are free from visible dust containing beryllium in concentrations greater than or equal to 0.1 percent by weight is not considered dermal contact under the standard. Several of the standard’s provisions are triggered where an employee has, or can be reasonably expected to have, dermal contact with beryllium. These include provisions in paragraph (f), Written exposure control plan; paragraph (h), Personal protective clothing and equipment (PPE); paragraph (i), Hygiene areas and practices; paragraph (k), Medical surveillance; and paragraph (m), Communication of hazards. This final rule makes two changes to the previous definition, which was added to the standard through the 2018 direct final rule (83 FR at 19940) following OSHA’s promulgation of the final rule in January 2017. That direct final rule defined dermal contact with beryllium as skin exposure to soluble beryllium compounds, beryllium solutions, or dust, fumes, or mists containing beryllium, where these materials contain beryllium in concentrations greater than or equal to 0.1 percent by weight (83 FR at 19940). First, this final rule modifies the definition to refer to ‘‘visible’’ dust, fumes, or mists containing beryllium in concentrations greater than or equal to 0.1 percent by weight. Second, OSHA is adding a sentence to the definition specifying that handling beryllium materials in non-particulate solid form that are free from visible dust containing beryllium in concentrations greater than or equal to 0.1 percent by weight is not considered dermal contact with beryllium under the standard. This final rule’s definition of dermal contact with beryllium is identical to the definition that OSHA proposed in the 2018 NPRM. The revisions incorporated in this definition are intended to help employers more accurately identify areas where the provisions triggered by dermal contact apply. Based on feedback OSHA received from stakeholders following publication of the 2017 final standard, OSHA became concerned that employers might have difficulty accurately identifying when and where the provisions triggered by dermal contact are required. Berylliumgenerating processes can release beryllium in varying particle sizes and amounts, some of which are visible to the naked eye and some of which are not. OSHA was concerned that E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations employers could reasonably interpret the provisions triggered by dermal contact with beryllium (e.g., the use of PPE) as extending to every employee who could potentially encounter a minute and non-visible amount of beryllium particulate at its facility, irrespective of the employee’s job duties and tasks, or who might handle an object containing beryllium. Such an interpretation would be contrary to OSHA’s intent and could prompt employers to attempt infeasible compliance measures. Therefore, as explained in the 2018 NPRM, OSHA proposed adding the term ‘‘visible’’ to clarify when skin exposure to beryllium-containing dust, fumes, or mist should be considered dermal contact with beryllium for the purpose of triggering the standard’s requirements. OSHA also proposed adding a sentence to state that handling of beryllium materials in nonparticulate solid form that are free from visible dust containing beryllium in concentrations greater than or equal to 0.1 percent by weight is not considered ‘‘dermal contact with beryllium’’ under the standard. Several commenters supported revising the definition of dermal contact with beryllium to apply to visible particulate, agreeing that the revised definition would facilitate compliance with the standard. In its submission, Materion stated that the proposed change to the definition ‘‘clears up the ambiguity and eliminates the vagueness of the [previous] . . . standard,’’ and that Revising the standard to provide employees as well as employers clear lines will likely immeasurably help not only with compliance but with enforcement of the standard. Without the visible cue, employees will have no idea whether and when they should be protected by PPE. . . . OSHA has fixed this problem with a sensible and clear demarcation threshold for dermal contact, and has done so in a manner that does not sacrifice protection against the risk of CBD. (Document ID 0038, p. 21). Similarly, the USW stated that dermal exposure to beryllium needed to be ‘‘properly addressed,’’ but that triggering provisions by dermal contact with materials containing beryllium at any level ‘‘could extend the application of the standard far beyond what OSHA intended or what is necessary to protect workers’’ (Document ID 0033, p. 4). The USW referred to non-sparking tools made from beryllium-copper alloy and beryllium foil used for x-ray windows as examples of materials where dermal contact should not trigger provisions of the standard (Document ID 0033, p. 4). VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 Century Aluminum Company (Century Aluminum) (Document ID 0026, p. 2) and DOD (Document ID 0029, p. 1) also agreed with the proposal to add the term ‘‘visible’’ to the definition. However, DOD recommended that OSHA revise the definition to explicitly identify skin exposure to ‘‘visible dust that has accumulated on surfaces’’ in addition to visible dust, fumes, or mists containing beryllium in concentrations greater than or equal to 0.1 percent by weight. OSHA does not believe this added phrase is necessary. The definition of dermal contact with beryllium does not distinguish the exposure routes that cause the skin exposure and, as proposed, the phrase ‘‘visible dust’’ encompasses exposures via both air and surface contamination. The ATS commented that adding ‘‘visible’’ to the definition to trigger provisions related to dermal contact ‘‘could be helpful,’’ but cautioned that inhalation of beryllium particulate that is not visible is ‘‘the major concern’’ for developing CBD (Document ID 0021, p. 5). It urged OSHA to ensure that the revised definition neither undermines the requirements of the beryllium standard which limit exposure to respirable beryllium, nor limits education on the health effects of beryllium to only those workers with exposure to visible dust (Document ID 0021, p. 5). NJH objected to OSHA’s proposal to restrict the definition to visible dust, fumes, and mists, believing that doing so could reduce employee protections from beryllium-induced sensitization and disease (Document ID 0022 p. 7). NJH commented that the smallest respirable particles are not visible and are inhaled into the deepest part of the lung. It further commented that a ‘‘monitoring program that routinely samples all departments with air and wipe samples can accomplish identifying ‘nonvisible’ dust contamination and should be part of any industry that needs to comply with an exposure limit’’ (Document ID 0022, p. 7). Other commenters voiced similar concerns about the risk posed by exposure to ultrafine particles containing beryllium, including the NSSP (Document ID 0027, p. 3), the AOEC (Document ID 0028, p. 2), and DOSH (Document ID 0023, p. 2). OSHA agrees that exposure to airborne beryllium, even when not visible to the naked eye, is an important risk factor for developing CBD and that it would be inappropriate to rely on the presence of visible airborne particulate to assess workers’ exposure to airborne beryllium and the need to implement PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 42607 engineering and work practice controls or respiratory protection. The standard’s permissible exposure limits and requirements for quantitative exposure assessments and use of respiratory protection are of paramount importance for ensuring that workers are protected from CBD, and these requirements are unaffected by the changes to the dermal contact with beryllium definition. In addition, the standard’s requirements to train workers on the health hazards of exposure to beryllium and on the employer’s exposure control plan (paragraph (m)(4)) apply to all employees within the scope of the general industry standard who have, or can reasonably be expected to have, airborne exposure (regardless of the size fraction) to or dermal contact with beryllium, thus including all workers that would be considered to be potentially at risk of beryllium-related disease.15 DOSH advocated for surface sampling as being a ‘‘practical method’’ for assessing exposure and asserted that adopting a ‘‘specific numerical surface contamination criterion’’ to assess dermal contact hazard was a more protective strategy. DOSH further suggested that, in establishing this numerical criterion, OSHA ‘‘consider levels that could result in uptake of beryllium by workers at rates similar to action level airborne exposures’’ (Document ID 0023, p. 2). With respect to inhalation hazards associated with beryllium, OSHA agrees that relying on the visibility of particulate does not adequately protect workers from CBD or lung cancer, and that both conducting routine air sampling and ensuring no employees are exposed to airborne beryllium in excess of the PELs are essential to minimizing workers’ exposures to airborne particulate. The TWA PEL for beryllium is based on robust evidence from studies of beryllium workers that permitted the agency to determine that there is significant risk of sensitization, CBD, and lung cancer associated with the previous TWA PEL, and that this 15 NJH also asserted that ‘‘[a]ll workers in a beryllium using industry should receive beryllium education with programs tailored to specific jobs and processes’’ (Document ID 0022, p. 7). Mount Sinai Selikoff Centers for Occupational Health similarly advocated for ‘‘intensive training and protective gear for all workers who may be at risk of beryllium exposure’’ (Document ID 0032, p. 3). OSHA notes that the beryllium standard has never required all workers in a beryllium-using industry to receive training. Rather, the standard has always required training for those workers who have or are reasonably expected to have airborne exposure to beryllium regardless of the size fraction. The standard continues to require training for all such workers. E:\FR\FM\14JYR3.SGM 14JYR3 42608 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations risk would be substantially reduced by the new PEL (82 FR at 2545–52). Unlike the case for inhalation, the available data on the effects of dermal contact with beryllium make it difficult to establish a reasonably precise, objective limit on surface contamination above which protective measures should be triggered. The most recent effort to derive a health-based measure of surface cleanliness for beryllium was that of Shay et al. (Document ID H005C– 2006–0870–0417), who used models that accounted for particulate dissipation, resuspension into air, transfer efficiency from surface to skin, dermal absorption of particulate through intact or damaged skin, and other factors. The authors used these models along with both oral and inhalation toxicity values derived by the Environmental Protection Agency to relate the level of surface contamination to target risk values for cancer and noncancer effects that would generally be considered to be de minimis (i.e., an exposure associated with either a lifetime cancer risk of one death per million persons exposed, or no excess risk of adverse noncancer effects). After accounting for these factors, the resulting surface dust cleanup criteria for each health endpoint ranged over several orders of magnitude, reflecting a high degree of uncertainty (for the noncancer endpoint, the criteria ranged from 5 to 370 mg/cm2 for damaged skin, and from 17 to 3,337 mg/cm2 for intact skin; for cancer, the criteria ranged from 51 to 485 mg/cm2). This study illustrates the difficulty in establishing a reliable and objective risk-based limit on surface contamination that could be used to trigger measures that would prevent dermal contact with beryllium particulate when such contact is sufficient to contribute to a significant risk of disease. Absent an objective measure, OSHA finds that it is preferable to base the definition of dermal contact with beryllium on a clear, qualitative indicator of when dermal contact is occurring or is reasonably anticipated to occur so that employers can have assurance that they are in compliance with the provisions that are triggered by dermal contact. Accordingly, the final rule’s definition of dermal contact with beryllium refers to skin exposure to visible dusts, fumes, or mists, as well as to soluble compounds and solutions of beryllium, as was proposed. As stated above, OSHA expects that revisions in this final rule will maintain worker protections. NJH also objected to defining dermal contact with beryllium when handling VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 finished beryllium products only by the presence of visible dust, asserting that gloves are warranted because beryllium could oxidize on the surface (Document ID 0022, p. 7). However, for the reasons explained below, OSHA considers these comments to be beyond the scope of the proposal. The agency also notes that the revision NJH’s comment refers to merely clarifies the meaning of the 2017 standard, rather than modifying it substantively. OSHA’s revision to the definition of dermal contact with beryllium clarifies OSHA’s intent that the provisions in the standard related to dermal contact with beryllium do not apply to the handling of solid beryllium-containing objects that the employer does not process, unless visible beryllium particulate has contaminated the surface of the object. OSHA explained in the 2017 final rule that beryllium-containing solid objects, or ‘‘articles,’’ with uncompromised physical integrity are unlikely to release beryllium that would pose a health hazard for workers (82 FR at 2640). An article, by definition, ‘‘under normal conditions of use does not release more than very small quantities, e.g., minute or trace amounts of a hazardous chemical . . . , and does not pose a physical hazard or health risk to employees’’ (29 CFR 1910.1200(c)). The agency therefore excluded articles that contain beryllium, and that the employer does not process, from the scope of the 2017 beryllium standard (see paragraph (a)(3)). OSHA did not intend for the 2018 NPRM to open the agency’s underlying findings on the handling of beryllium-containing articles, nor their exclusion from the scope of the standard, for notice and comment. To the extent NJH’s comment challenges the articles exemption, these comments are beyond the scope of the proposal. Nevertheless, even for those solid beryllium-containing objects that do not fall under the definition of an article, such as ingots that might be processed further, OSHA notes that PPE would be required if there is a reasonable expectation that oxidation may result in visible surface contamination. In its comments on the 2015 NPRM, Materion explained that beryllium oxides are created through particular manufacturing processes, typically those involving heating of the beryllium-containing materials (e.g., hot forming operations, melting, or heat treating) (see Document ID OSHA– H005C–2006–0870–1662, p. 16). These operations may give rise to a reasonable expectation of dermal contact due to the expected oxidization that will occur as a result of the process. Where there is PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 a reasonable expectation that oxidization may result in visible surface contamination, an employer must not wait for the surface to be contaminated to require PPE for potentially exposed employees. For example, if the surface of a solid object must be heat treated, and the employer has reason to believe this will result in surface oxidation absent cleaning the surface, PPE would be required under this final rule. After carefully considering the record of public comments on this topic, OSHA finds that the revised definition of dermal contact with beryllium will provide a clearer and more workable definition, without reducing worker protections. The specification of ‘‘visible dust, fumes, or mists containing beryllium in concentrations greater than or equal to 0.1 percent by weight’’ and clarification regarding berylliumcontaining articles will allow employers to accurately identify the employees, particularly those working outside of beryllium work areas or regulated areas, to whom the provisions triggered by dermal contact with beryllium apply, including the requirement in paragraph (h) to provide employees with PPE to protect against reasonably expected dermal contact with beryllium. The revised definition will also render more workable the additional provisions in the standard that are triggered by dermal contact with beryllium, which include provisions in paragraph (f), Written exposure control plan; paragraph (i), Hygiene areas and practices; paragraph (k), Medical surveillance; and paragraph (m), Communication of hazards. This final rule better addresses the practical aspects of a ‘‘reasonable expectation’’ trigger for PPE than did the previous rule, which could have been read as effectively requiring employees to wear PPE facility-wide, even when not in proximity to beryllium generating processes, such as in administrative offices. OSHA believes that use of PPE in that circumstance is unwarranted and would not meaningfully enhance worker protections against beryllium exposure. Where an employer has a reasonable expectation that even very small amounts of beryllium dust, fume, or mist might spread outside of beryllium work areas, they might have interpreted the language of the previous rule to require all employees in the facility to wear PPE all of the time. OSHA did not intend and did not cost the previous rule as requiring PPE to protect against dermal contact with nonvisible beryllium dust, fumes, or mists outside of beryllium work areas. The addition of a visual cue will enable employers to accurately identify the employees outside of beryllium work E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations areas who need to wear PPE due to their reasonably-expected dermal contact with beryllium. As OSHA explained in the 2018 NPRM (83 FR at 63752), the agency expects that the use of PPE will always be required in beryllium work areas because both the operations listed in Appendix A and those that can be reasonably expected to generate exposure at or above the action level would create a reasonable expectation of dermal contact with beryllium. This expectation is based, in part, on a study conducted by NIOSH and Materion and published in the Journal of Occupational and Environmental Hygiene (Document ID OSHA–H005C– 2006–0870–0502, p. 791). In the 2018 NPRM, OSHA explained that this study identified a strong correlation between airborne beryllium concentrations and the amount measured on gloves worn by workers at multiple beryllium facilities and jobs, indicating the potential for skin exposure where airborne beryllium is present. The study further concluded that this correlation implies that one type of measurement can be indicative of other exposure pathways (Document ID OSHA–H005C–2006–0870–0502, p. 791). OSHA further explained that the expectation of dermal contact within beryllium work areas is also based on OSHA’s review of data collected during site visits conducted by the agency that cover a wide range of processes (e.g., furnace and melting operations, casting, grinding/deburring, machining and stamping) and a wide range of materials including beryllium composite, beryllium alloy, and beryllium oxide. The data show that those operations that would create a reasonable expectation of dermal contact, either through beryllium surface contamination or skin contamination, are covered either by proposed Appendix A or have exposures above the action level (see Document ID OSHA–H005C–2006– 0870–0341). In its comment, Materion questioned OSHA’s reliance on the 2007 Day et al. study (82 FR at 2488–89) and suggested that, contrary to OSHA’s statement, Day did not identify a ‘‘strong correlation’’ between airborne concentrations and skin exposure (Document ID 0038, pp. 13–14). Materion cited Day’s finding of a potential for greater transfer of beryllium from surfaces to cotton gloves that could lead to an overestimation of the amount of beryllium transferred. OSHA disagrees with Materion’s assessment of the Day study. Day indicates that the underlying assumption that glove-sampling techniques actually remove the majority of the contamination may be overstated VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 and that the surface and skin wipe samples may underestimate the mass of beryllium that is present. The Day study demonstrates that there is a correlation between airborne and potential for skin exposures (Document ID OSHA– H005C–2006–0870–1548, p. 79). As OSHA discussed in the NPRM, this finding is supported by a follow-up study by Armstrong et al. (2014) conducted at four different Materion manufacturing locations over a wide variety of jobs. This study also showed strong positive correlations between air, dermal, and surface exposures among the four different facilities that process beryllium (Document ID OSHA–H005C– 2006–0870–0502, p. 791). The study further concludes that this correlation implies that one type of measurement can be indicative of other exposure pathways. OSHA finds that these studies demonstrate a correlation between airborne exposure and the reasonable expectation of dermal contact.16 In the 2018 NPRM, OSHA specifically requested comments on whether processes exist that could trigger the creation of a beryllium work area, but could be reasonably expected to release only non-visible beryllium-containing dusts, fumes, or mists. No commenter provided evidence of such processes. Materion asserted that OSHA should not ‘‘automatically classify’’ beryllium work areas as having a reasonable expectation of dermal contact because this would serve as ‘‘a serious disincentive for employers to eliminate exposure meeting the definition of dermal contact’’ (Document ID 0038, p. 15). However, Materion did not explain how such a presumption would serve as a disincentive and, more importantly, did not identify any process that could trigger the creation of a beryllium work area while not also, in fact, creating a reasonable expectation of dermal contact. Accordingly, OSHA reaffirms its expectation that both the provisions associated with beryllium work areas (listed above) and the provisions associated with dermal contact with beryllium would apply to employees in a beryllium work area. OSHA expects that employers will, for each beryllium work area, assess the PPE needs as required by paragraph (f)(1) and OSHA’s 16 Materion also asserted that the evidence in the record is insufficient to conclude that ‘‘dermal contact alone is sufficient to create a significant risk of CBD or even beryllium sensitization’’ (Document ID 0038, pp. 14–15). However, in the 2017 final rule, OSHA specifically found that that dermal exposure can result in sensitization (see 82 FR at 2489). The 2018 NPRM did not propose revisiting this finding. PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 42609 Personal Protective Equipment standards (subpart I of 29 CFR 1910) and provide their employees with appropriate PPE. Because it will help employers identify which employees have, or can be reasonably expected to have, dermal contact with beryllium, the revised definition will allow employers to more accurately comply with the requirement in paragraph (f)(1)(i)(A) to establish, implement, and maintain a written exposure control plan that includes a list of operations and job titles reasonably expected to involve airborne exposure to or dermal contact with beryllium. OSHA expects that the list would likely include all operations and job titles in beryllium work areas, along with any additional operations or job titles for employees whose skin could be exposed to visible beryllium dust, fumes, or mists in concentrations of 0.1 percent by weight or more. Under the previous definition, employers could have reasonably interpreted the standard as requiring them to list the job title for every employee at the facility who could come into contact with a minute and non-visible amount of beryllium particulate, including employees who do not work in proximity to beryllium-releasing processes. Similarly, the revised definition will facilitate employer compliance with the requirement to provide information and training (in accordance with the Hazard Communication standard (29 CFR 1910.1200(h)) to each employee who has, or can reasonably be expected to have, airborne exposure to or dermal contact with beryllium by the time of the employee’s initial assignment and annually thereafter (paragraphs (m)(4)(i)(A)–(C)). Under this requirement, employees entitled to training include all employees who work in beryllium work areas and any other employees who may not be working directly with a berylliumgenerating process, but who may nonetheless reasonably be expected to have airborne exposure to and/or skin contact with soluble beryllium, beryllium solutions, or visible beryllium dust, fumes, or mists in concentrations of 0.1 percent by weight or more. As discussed previously, OSHA intends the revised definition of dermal contact with beryllium to provide employers with a workable indicator for determining which employees outside of beryllium work areas should receive this information and training. Because the change would allow employers to more accurately identify areas where provisions related to dermal contact should apply, the revised E:\FR\FM\14JYR3.SGM 14JYR3 42610 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations definition would also facilitate proper compliance with paragraph (i)(1)(ii), which requires employers to ensure employees who have dermal contact with beryllium wash any exposed skin at the end of the activity, process, or work shift and prior to eating, drinking, smoking, chewing tobacco or gum, applying cosmetics, or using the toilet. OSHA’s revisions to the definition of dermal contact with beryllium would prevent employers from speculating that all employees in a facility, including those employees who do not work near beryllium-releasing processes, must wash their exposed skin because they might have come into contact with nonvisible beryllium particulate or handled articles that contain beryllium. Such an interpretation would be contrary to OSHA’s intent. The revised definition is designed to further improve employer compliance with the requirements in paragraph (k) to offer employees a medical examination including a medical and work history that emphasizes past and present airborne exposure to or dermal contact with beryllium (paragraph (k)(3)(ii)(A)), and to provide the examining physician or other licensed health care professional (PLHCP) (and the agreed-upon CBD diagnostic center, if such an evaluation is required) with a description of the employee’s former and current duties that relate to the employee’s airborne exposure to and dermal contact with beryllium (paragraph (k)(4)(i)). Because it would improve employers’ ability to identify when dermal contact with beryllium has occurred or could occur, this change would permit employers to accurately complete employee medical and work histories and the reports that they must provide to examining PLHCPs or CBD diagnostic centers. As with the provisions discussed above, OSHA’s revisions to the definition of dermal contact with beryllium will prevent employers from including superfluous information in these medical and work histories and reports because they are concerned that an employee might have conceivably had skin contact with minute, non-visible beryllium particulate or handled berylliumcontaining articles outside of a beryllium work area. Such an expansive interpretation is again contrary to OSHA’s intent. OSHA is adding two references to dermal contact with beryllium in paragraph (i), Hygiene areas and practices, to account for the final rule’s changes to the definition of beryllium work area in paragraph (b). Paragraph (i) in the previous rule included requirements for employers to provide VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 each employee working in a beryllium work area with readily accessible washing facilities (paragraph (i)(1)(i)) and a designated change room where employees are required to remove their personal clothing (paragraph (i)(2)). But, as explained earlier in this section, OSHA is revising the definition of beryllium work area so that the requirement to establish these areas is no longer triggered on the potential for dermal contact with beryllium. OSHA intends for the washing facilities and change rooms requirements to apply where employees are reasonably expected to have dermal contact with beryllium, regardless of whether they work in a beryllium work area, as now defined in this final rule. As discussed above, there may be employees outside of the beryllium work area that may have a reasonable expectation of dermal contact with beryllium. Therefore, as was proposed, OSHA is adding two additional references to dermal contact with beryllium to paragraph (i). First, OSHA is revising paragraph (i)(1) so that the requirements would apply to each employee who works in a beryllium work area or who can reasonably be expected to have dermal contact with beryllium. Paragraph (i)(1)(i) would then require employers to provide washing facilities to all employees who can be reasonably expected to have dermal contact with beryllium. Second, OSHA is revising paragraph (i)(2) so that employers are required to provide change rooms to employees who are required to use personal protective clothing or equipment under paragraph (h)(1)(ii), if those employees are required by the employer to remove their personal clothing. Because paragraph (h)(1)(ii) requires the use of PPE where there is a reasonable expectation of dermal contact with beryllium, the change to paragraph (i)(2) ensures that the requirement for change rooms would continue to protect those employees who can reasonably be expected to have dermal contact with beryllium. Methods of Compliance. Paragraph (f) of the beryllium standard for general industry contains provisions covering methods for reducing employee exposure to beryllium through the use of a written exposure control plan and engineering and work practice controls. Paragraph (f)(1) sets forth the requirements for written exposure control plans. Paragraph (f)(1)(i) requires employers to establish, implement, and maintain such a plan, and paragraphs (f)(1)(i)(A)– (H) specifies the information and procedures that must be included in the PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 plan. Paragraph (f)(1)(ii) directs employers to review and evaluate each plan at least annually and update it under specified circumstances. In the 2018 NPRM, OSHA proposed two wording changes to paragraph (f)(1) (83 FR at 63754). The first proposed change relates to the contents of the written exposure control plan. Under paragraph (f)(1)(i)(D), employers were previously required to include procedures in their plans for minimizing cross-contamination, ‘‘including preventing the transfer of beryllium’’ between surfaces, equipment, clothing, materials, and articles within beryllium work areas. OSHA proposed removing the word ‘‘preventing’’ from the regulatory text to clarify that these procedures may not totally eliminate the transfer of beryllium, but should minimize crosscontamination of beryllium, including between surfaces, equipment, clothing, materials, and articles. The second proposed change involves one of the circumstance when employers must update their written exposure control plans. Paragraph (f)(1)(ii)(B) of the standard directed employers to update the written exposure control plan, as necessary, when they are notified that an employee is eligible for medical removal in accordance with paragraph (l)(1), referred for evaluation at a CBD diagnostic center, or shows signs or symptoms associated with ‘‘airborne exposure to or dermal contact with beryllium.’’ In the 2018 NPRM, OSHA proposed to replace the phrase ‘‘airborne exposure to and dermal contact with beryllium’’ with ‘‘exposure to beryllium.’’ The agency explained that the change would simplify the language of the provision while still capturing all potential exposure scenarios currently covered. Because these proposed changes are merely clarifying, OSHA explained that it expected that they would maintain safety and health protections for workers. All of the stakeholders that submitted comments related to OSHA’s proposed changes to the written exposure control plan provisions supported the changes (see, e.g., Document ID 0031, p. 2; 0038, p. 31). For example, EEI observed that OSHA’s discussion of the proposed changes were appropriate modifications to the beryllium standard (Document ID 0031, p. 2). Materion also supported the proposed changes and agreed with OSHA that these proposed changes are merely clarifying, and that they will maintain safety and health protections for employees. In addition, Materion noted that it ‘‘identifie[d] no reduction E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations in protection to employees associated with these clarifying language revisions’’ (Document ID 0038, p. 31). After reviewing these comments and considering the record as a whole, OSHA has determined that the proposed changes will clarify for employers the requirements of the written exposure control plan without sacrificing safety and health protections for workers. Therefore, OSHA is finalizing the proposed changes to paragraph (f) in this final rule. Personal Protective Clothing and Equipment. Paragraph (h) of the beryllium standard for general industry requires employers to provide employees with personal protective clothing and equipment (PPE) where employee exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL, or where there is a reasonable expectation of dermal contact with beryllium. Paragraph (h) also contains provisions for the safe removal, storage, cleaning, and replacement of the PPE required by this standard. As explained in the 2017 final rule preamble, these PPE requirements are intended to protect employees by preventing dermal exposure to beryllium and the accumulation of airborne beryllium on PPE, and to protect employees and other individuals both inside and outside the workplace from exposures that could occur if contaminated clothing were to transfer beryllium (82 FR at 2678). In the 2018 NPRM, OSHA proposed two changes to paragraph (h). The first revision relates to paragraph (h)(2)(i), which addresses removal and storage of PPE. Paragraph (h)(2)(i) previously required employers to ensure that each employee removes all berylliumcontaminated PPE at the end of the work shift, ‘‘at the completion of tasks involving beryllium,’’ or when PPE becomes visibly contaminated with beryllium, whichever comes first. OSHA proposed modifying the phrase ‘‘at the completion of tasks involving beryllium’’ by changing ‘‘tasks’’ to ‘‘all tasks,’’ so that it reads ‘‘at the completion of all tasks involving beryllium’’ (83 FR at 63754). OSHA explained in the 2018 NPRM that this revision to paragraph (h)(2)(i) merely clarifies the trigger for when employees must remove berylliumcontaminated PPE, consistent with the agency’s original intent (83 FR at 63754). As expressed in the preamble to the 2017 final rule, OSHA intended that PPE contaminated with beryllium should not be worn after tasks involving beryllium exposure have been completed for the day (82 FR at 2682). Thus, when employees perform VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 multiple tasks involving beryllium successively or intermittently throughout the day, the employer must ensure that each employee removes all beryllium-contaminated PPE at the completion of the set of tasks involving beryllium, not necessarily after each separate task. If, however, employees perform tasks involving beryllium exposure for only a portion of a work shift, and then perform tasks that do not involve exposure to beryllium, the employer must ensure that employees remove their PPE after the beryllium exposure period. Unless the PPE becomes visibly contaminated with beryllium, OSHA did not intend this provision to require multiple PPE changes throughout the work shift. Thus, the proposed revision to paragraph (h)(2)(i) clarifies OSHA’s original intent. OSHA received multiple comments in support of the proposed change to paragraph (h)(2)(i). The USW commented that it believes the change is reasonable and clarifies the intent of the standard (Document ID 0033, p. 6). Similarly, Century Aluminum expressed its support for this ‘‘sensibl[e]’’ revision, commenting that it is an example of a logical and workable requirement that will produce better work practices and habits and, in turn, improve employee health and safety outcomes (Document ID 0026, p. 2). In addition, Century Aluminum commented that requiring PPE to be changed after every task would ‘‘significantly increase costs without increasing employee health and safety’’ and could actually increase the amount of time employees are exposed to beryllium, thus increasing their risk of sensitization and disease (Document ID 0026, p. 2). Materion also expressed its general support for the ‘‘clarifying language revisions’’ to paragraph (h) (Document ID 0038, p. 32). OSHA also received two comments opposing the proposed change to paragraph (h)(2)(i). A private citizen commented that, although OSHA did not intend to require continuous PPE changes throughout a work shift, doing so seemed necessary to limit transmission of contaminant between workers and work areas (Document ID 0017). And another private citizen commented that if a worker’s suit is contaminated, the worker should be required to change even if the suit is not visibly contaminated (Document ID 0019). OSHA does not believe it is necessary for workers to change PPE after each work task, or after each instance of PPE contamination, in order to limit the spread of beryllium particulate between work areas because, absent visible PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 42611 contamination of PPE, any contamination present will likely be minute and will not contaminate other work areas to such a degree as to materially increase worker exposures. Furthermore, as explained in the preamble to the 2017 final rule (82 FR at 2682), because the purpose of PPE is to serve as a barrier between an employee’s body and ambient or surface beryllium, PPE becomes contaminated with beryllium immediately as part of its protective function. Requiring PPE to be changed upon contamination with any amount of beryllium is unreasonable and unnecessary to protect employees. This is because contamination of PPE with beryllium during work processes does not reduce the effectiveness of PPE or create hazards to employees unless sufficient beryllium accumulates on the PPE to impair its function or create additional exposures, such as by dispersing accumulated beryllium into the air. Moreover, the process of changing contaminated PPE can create opportunities for both inhalation exposure and dermal contact with beryllium. Accordingly, the use of ‘‘visibly contaminated’’ protects employees from potential exposures while changing PPE by limiting the requirement to change PPE during work tasks involving beryllium exposure to those circumstances when changing it is necessary to maintain its protective function and prevent deposits of beryllium from accumulating and dispersing. Notably, the USW commented that it believes including the term ‘‘visibly contaminated’’ in the provision provides for employee safety (Document ID 0033, pp. 6–7), and Materion similarly stated that ‘‘visibility [of beryllium-contaminated PPE and equipment] is a conservative, stringent’’ trigger that ‘‘also has the benefit of compliance clarity’’ (Document ID 0038, p. 32). After reviewing these comments and considering the record as a whole, OSHA finds that the proposed change in paragraph (h)(2)(i) is reasonably necessary and appropriate and has retained the revised language in the final rule. The second proposed revision relates to paragraph (h)(3)(iii), which addresses cleaning and replacement of PPE. This paragraph required employers to inform in writing the persons or the business entities who launder, clean, or repair the PPE required by this standard of the potentially harmful effects of ‘‘airborne exposure to and dermal contact with beryllium.’’ The 2018 NPRM proposed replacing the phrase ‘‘airborne exposure to and dermal contact with beryllium’’ E:\FR\FM\14JYR3.SGM 14JYR3 42612 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations with ‘‘exposure to beryllium’’ (83 FR at 63755). OSHA explained that this change simplifies the language of the provision while still capturing all potential exposure scenarios currently covered; and, as such, the agency concluded that the revised language will maintain safety and health protections for workers. OSHA received no comments on this proposed change beyond Materion’s general support for the clarifying revisions to paragraph (h) as a whole (Document ID 0038, p. 32). OSHA is therefore retaining the proposed revision to paragraph (h)(3)(iii) in the final rule. Hygiene Areas and Practices. Paragraph (i) of the beryllium general industry standard requires that the employer provide employees with readily accessible washing facilities, change rooms, and showers when certain conditions are met; requires the employer to take certain steps to minimize exposure in eating and drinking areas; and prohibits certain practices that may contribute to beryllium exposure. As explained in the 2017 final rule, OSHA believes that strict compliance with these provisions will reduce the amount and duration of employees’ airborne exposure and dermal contact with beryllium (82 FR at 2683–88). In the 2018 NPRM, OSHA proposed three changes to paragraph (i) of the general industry standard. The agency proposed the first two changes (83 FR at 63755), which apply to paragraphs (i)(1) and (i)(2), to maintain the protections included in these paragraphs for employees who have dermal contact with beryllium notwithstanding the proposed change to the definition of beryllium work area, discussed previously in this Summary and Explanation. OSHA proposed the third change, which applies to paragraph (i)(4), to clarify the requirements for cleaning beryllium-contaminated PPE prior to entering an eating or drinking area (83 FR at 63755–56). As explained in the previous discussion of changes to the definition of beryllium work area, OSHA proposed and has finalized these changes to the definition of beryllium work area to clarify where a beryllium work area must be established. One of these changes removes dermal contact with beryllium as one of the triggers that requires an employer to establish a beryllium work area. As explained in the 2018 NPRM, OSHA intended for the hygiene provisions related to washing facilities and change rooms to continue to apply to all employees who can reasonably be expected to have dermal contact with beryllium, regardless of VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 whether they work in beryllium work areas as defined in the revised definition (83 FR at 63755). OSHA accordingly proposed two changes. First, OSHA proposed a change in the wording of paragraph (i)(1), which required that ‘‘[f]or each employee working in a beryllium work area,’’ the employer must provide readily accessible washing facilities to remove beryllium from the hands, face, and neck; and ensure that employees who have dermal contact with beryllium wash any exposed skin at specific designated times. The 2018 NPRM proposed amending the language to apply to ‘‘each employee . . . who can reasonably be expected to have dermal contact with beryllium,’’ in addition to each employee working in a beryllium work area (83 FR at 63768). Second, OSHA proposed a change in the wording of paragraph (i)(2), which required employers to provide ‘‘employees who work in a beryllium work area,’’ with a designated change room where employees are required to remove their personal clothing. OSHA proposed revising paragraph (i)(2) to require employers to provide a designated change room to employees who are required to use personal protective clothing or equipment under paragraph (h)(1)(ii) of the beryllium standard, instead of to employees who work in a beryllium work area (83 FR at 63768). Paragraph (h)(1)(ii) of the beryllium standard requires the provision and use of appropriate PPE where there is a reasonable expectation of dermal contact with beryllium. The requirement to provide change rooms would continue to apply only where employees are required to remove their personal clothing. As noted above and explained in the 2018 NPRM, the proposed changes to paragraphs (i)(1) and (i)(2) were merely intended to ensure that the hygiene provisions related to washing facilities and change rooms would continue to protect employees who are reasonably expected to have dermal contact with beryllium, if the agency adopted the proposed revised definition of the term beryllium work area. OSHA also proposed a third change, which applies to paragraph (i)(4), in order to clarify the requirements for cleaning beryllium-contaminated PPE prior to entering an eating or drinking area. Paragraph (i)(4)(ii) required the employer to ensure that no employees enter any eating or drinking area with beryllium-contaminated personal protective clothing or equipment unless, prior to entry, surface beryllium has been removed from the clothing or equipment by methods that do not PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 disperse beryllium into the air or onto an employee’s body. In the 2018 NPRM, OSHA proposed to modify this paragraph to require the employer to ensure that, before employees enter an eating or drinking area, berylliumcontaminated PPE is cleaned, as necessary, to be as free as practicable of beryllium by methods that do not disperse beryllium into the air or onto an employee’s body (83 FR at 63768). The agency explained that this proposed change would clarify that OSHA does not expect the methods used to clean PPE prior to entering an eating or drinking area to completely eliminate residual beryllium from the surface of the PPE if complete elimination is not practicable (83 FR at 63755–56). OSHA also explained that this is consistent with its determination, expressed in the preamble to the 2017 final rule, that ‘‘as free as practicable’’ is ‘‘the most appropriate terminology for requirements pertaining to surface cleanliness’’ (82 FR at 2687). This proposed clarification also aligns the language of paragraph (i)(4)(ii) with the language of paragraph (i)(4)(i), which requires employers to ensure that beryllium-contaminated surfaces in eating and drinking areas are as free as practicable of beryllium. Finally, OSHA explained that requiring cleaning only ‘‘as necessary’’ would clarify that cleaning would not be required if the PPE is already as free as practicable of beryllium. OSHA stated that it expected these proposed changes to paragraph (i) would maintain safety and health protections for workers. Commenters expressed broad support for OSHA’s proposed changes to paragraph (i) (see, e.g., Document ID 0029, p. 1; 0031, p. 2; 0033, p. 6; 0038, p. 32). For example, EEI observed that the proposed changes to this paragraph as a whole were appropriate modifications to the beryllium standard (Document ID 0031, p. 2) and DOD generally agreed with the proposed changes, commenting that they are evidence based and provide greater employee protections (Document ID 0029, p. 1). Materion also supported the proposed changes to paragraph (i) as a whole, and agreed with OSHA that these proposed changes are merely clarifying, and that they will maintain safety and health protections for employees (Document ID 0038, p. 32; see also Document ID 0034 and 0035, p. 1 (supporting and endorsing the comments submitted by Materion)). OSHA did not receive any comments that specifically addressed the two proposed changes to paragraphs (i)(1) and (i)(2). The agency is therefore E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations adopting the changes to those paragraphs as proposed. Stakeholders also did not submit any comments on the majority of the agency’s proposed changes to paragraph (i)(4). A DOD comment specifically addressed the term ‘‘as free as practicable,’’ suggesting that because the term is not defined, OSHA should require employers to establish procedures for cleaning PPE, document accomplishment of procedures, and periodically review compliance with cleaning procedures (Document ID 0029, p. 2). The USW supported the proposed change for cleaning PPE ‘‘as necessary,’’ agreeing with OSHA’s explanation in the 2018 NPRM that requiring cleaning only as necessary would clarify that cleaning would not be required if the PPE is already as free as practicable of beryllium (Document ID 0033, p. 6). The requirement to maintain surfaces as free as practicable of a regulated substance is included in other OSHA health standards, such as those for lead (29 CFR 1910.1025, 29 CFR 1926.62), chromium (VI) (29 CFR 1910.1026), and asbestos (29 CFR 1910.1001), and is used elsewhere in the beryllium general industry standard (29 CFR 1910.1024(f)(1)(i)(E), (i)(4)(i), (j)(1)(i), (j)(3)(ii)). Employers therefore have the benefit of previous experience interpreting and developing methods for compliance with requirements to maintain surfaces ‘‘as free as practicable’’ of toxic substances, including beryllium, as well as guidance from OSHA on compliance with such requirements. OSHA discussed the meaning of this phrase in the Summary and Explanation of paragraph (j) in the 2017 final rule (82 FR at 2690), as well as in a 2014 letter of interpretation explaining the phrase in the context of the agency’s standard for chromium (VI) (OSHA, Nov. 5, 2014, Letter of Interpretation, available at https:// www.osha.gov/laws-regs/ standardinterpretations/2014-11-05). As OSHA explained in the 2014 letter of interpretation, OSHA evaluates whether a surface is ‘‘as free as practicable’’ of a contaminant by the efficacy of the employer’s program to keep surfaces clean. OSHA intends for this term to be broad and performance-oriented, so as to allow employers in a variety of industries flexibility to decide what type of control methods and procedures are best suited to their beryllium operations, and OSHA intends to evaluate compliance based on employer efforts under the circumstances present at each facility. Notably, in its comment, Materion expressed general support for use of the phrase ‘‘as free as practicable’’ VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 in other parts of the standard, acknowledging that this is the workable legal standard OSHA relies on in occupational health standards (Document ID 0038, pp. 25–26, 33). Moreover, as to DOD’s recommendation that OSHA require employers to establish procedures for cleaning PPE, document accomplishment of procedures, and periodically review compliance with cleaning procedures (Document ID 0029, p. 2), OSHA agrees that requiring employers to establish PPE cleaning procedures is important. To meet this objective, the written exposure control plan provision in paragraph (f)(1)(i) requires employers to establish, implement, and maintain a written exposure control plan, which must contain, among other things, procedures for removing, laundering, storing, cleaning, repairing, and disposing of beryllium-contaminated personal protective clothing and equipment, including respirators. Paragraph (f)(1)(ii) requires employers to review and evaluate the effectiveness of each written exposure control plan at least annually and update it, as necessary, if certain specified events occur. OSHA believes that these requirements satisfy DOD’s concerns while still allowing employers the flexibility to establish, implement, and maintain a plan that works best for their individual workplaces. After reviewing these comments and considering the record as a whole, OSHA believes that the term ‘‘as free as practicable’’ is understood by employers through its use in other standards and as explained in letters of interpretation and other guidance, and does not believe that defining the term in this standard or establishing specific PPE cleaning and documentation procedures is necessary. OSHA also believes the proposed change is necessary to align the language of paragraphs (i)(4)(i) and (i)(4)(ii). OSHA did not receive any comments objecting to the revised requirement that PPE be ‘‘cleaned, as necessary,’’ which makes clear that cleaning would not be required if PPE is already as free as practicable of beryllium. OSHA believes these changes clarify the agency’s intent without sacrificing safety and health protection for workers. The agency is therefore adopting the changes as proposed to paragraph (i)(4)(ii) in this final rule. Disposal, Recycling, and Reuse. Paragraph (j) of the beryllium general industry standard requires employers to adhere to certain housekeeping practices. Paragraphs (j)(1) and (j)(2) require employers to maintain all surfaces in beryllium work areas as free PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 42613 as practicable of beryllium, promptly clean spills and emergency releases of beryllium, and use appropriate cleaning methods, while paragraph (j)(3) requires employers to take certain actions when transferring materials that contain at least 0.1 percent beryllium by weight or that are contaminated with beryllium outside a plant for the purpose of disposal, recycling, or reuse. Specifically, paragraph (j)(3)(i) requires that, except for intra-plant transfers, when transferring these materials for any of these purposes the employer must label the materials in accordance with paragraph (m)(3). Paragraph (j)(3)(ii) further requires that those materials designated for disposal must be either cleaned to be as free as practicable of beryllium or placed in enclosures that prevent the release of beryllium-containing particulate or solutions under normal conditions of use, storage, or transport, such as bags or containers. Paragraph (j)(3)(iii) requires the same for materials designated for recycling or reuse. The final rule makes a number of changes to the previous requirements of paragraph (j)(3). As originally promulgated in the 2017 final rule, paragraph (j)(3)(i) required that materials designated for disposal be disposed of in sealed, impermeable enclosures, such as bags or containers, that are labeled according to paragraph (m)(3) of the beryllium standard, but did not allow employers the alternative option of cleaning such material to be as free as practicable of beryllium. Further, both paragraphs (j)(3)(i) and (j)(3)(ii) required that materials be transferred in sealed, impermeable bags, but did not further define this requirement. Finally, the original paragraph (j)(3) did not explicitly address transfers of materials for the purpose of reuse.17 After the promulgation of the final rule in 2017, OSHA learned that some stakeholders were confused about these requirements. For example, stakeholders were uncertain about what types of enclosures would be acceptable under the standard. To help alleviate stakeholder confusion, OSHA proposed a number of changes in the 2018 NPRM that make explicit what had been intended in the 2017 final rulemaking. Specifically, OSHA proposed adding provisions explicitly addressing transferring materials for reuse; clarifying that the rule’s requirements for disposal, recycling, and reuse do not apply to intra-plant transfers; and 17 Subsequent to the 2017 final rule, the 2018 direct final rule clarified that the requirements of paragraph (j)(3) do not apply to materials containing only trace amounts of beryllium (less than 0.1 percent by weight). E:\FR\FM\14JYR3.SGM 14JYR3 42614 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations allowing for the cleaning of materials bound for disposal. The agency also proposed reorganizing the paragraph’s two paragraphs into three that focused on specific topics and making minor changes in terminology to improve the clarity and internal consistency of the standard. Only one of the changes is substantive, which is the inclusion of the option for cleaning instead of enclosure; the remaining edits merely clarify OSHA’s original intent. As discussed in more detail below, OSHA is retaining the changes proposed in the 2018 NPRM in the final rule with only one clarifying revision. With these changes, final paragraph (j)(3) provides comprehensive, easy to understand requirements for employers that are transferring materials outside of their plants for disposal, recycling, or reuse that contain at least 0.1 percent beryllium by weight or are contaminated with beryllium. In response to the 2018 NPRM, a number of commenters, including the DOD, Materion, the USW, and EEI, expressed support for the proposed revisions generally (see, e.g., Document ID 0029, p. 1; 0038, pp. 32–33; 0033, p. 5; 0031, p. 2). For example, DOD stated that the revisions ‘‘are evidence based and provide greater employee protection’’ (Document ID 0029, p. 1). Similarly, Materion commented that the revisions ‘‘will provide improved understanding and more practical meaning to manufacturers by improving the clarity and internal consistency of the standard’’ (Document ID 0038, p. 32). Stakeholders also offered specific comments on the individual changes OSHA proposed to paragraph (j)(3). OSHA outlines each of those changes below, along with any specific comments received on those changes and the agency’s final determination as to whether to retain the proposed change in the final rule. OSHA proposed seven changes to the 2017 version of paragraph (j)(3). First, the agency proposed that the provisions address reuse (in addition to disposal and recycling). As noted above, paragraph (j)(3) of the 2017 final rule contained requirements for the labeling and enclosure of certain materials designated for disposal and the labeling and either enclosure or cleaning of materials designated for recycling. The preamble to the 2017 final rule made clear that paragraph (j)(3)’s requirements related to recycling also applied to reuse (see 82 FR at 2695–96), but the standard did not explicitly advise employers of this requirement. To make the agency’s original intent clear, OSHA proposed in the 2018 NPRM to include provisions VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 addressing reuse. This proposed change was intended to ensure that workers who may be exposed to materials containing or contaminated with beryllium that are directly reused without first being processed into a different form are appropriately protected. For example, a manufacturer may sell a by-product from a process to a downstream manufacturer that would reuse the by-product as a component of a new product. Recycling, on the other hand, typically involves the further processing of waste materials to separate and recover various components of value. OSHA did not receive any specific comments on the addition addressing reuse of materials in paragraph (j)(3). Therefore, OSHA has finalized the inclusion of requirements related to the reuse of materials in paragraph (j)(3). Second, OSHA proposed reorganizing paragraph (j)(3)’s original two paragraphs (one on disposal, one on recycling—with the labeling requirements specified in each) into three new paragraphs with each paragraph focusing on a different topic. Proposed paragraph (j)(3)(i) spelled out the labeling requirements, proposed paragraph (j)(3)(ii) included the requirements for cleaning or enclosing materials bound for disposal, and proposed paragraph (j)(3)(iii) laid out the obligations as to materials designated for recycling or reuse. The proposed reorganization allowed the agency to incorporate the new reuse requirements, while also setting out each distinct obligation clearly. OSHA further explained in the proposal that this is not a substantive change to the standard, but rather only a reorganization of the existing provisions (see 83 FR at 63763). One commenter, Materion, addressed the reorganization of paragraph (j)(3), noting that the change would improve the clarity and employers’ understanding of the provisions (Document ID 0038, p. 32). Having received no comments to the contrary, OSHA is adopting the new structure to paragraph (j)(3) in the final rule. Third, OSHA proposed a simplifying change relating to the description of which materials must be labeled and cleaned or enclosed prior to transfer for disposal, recycling, or reuse. The 2018 direct final rule required employers to label and clean or enclose two groups of materials: (1) Materials that contain beryllium in concentrations of 0.1 percent by weight or more, and (2) materials that are contaminated with beryllium. In the 2018 NPRM, OSHA proposed a simplifying edit to the first group of materials. Specifically, the PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 agency proposed replacing the phrase materials ‘‘that contain beryllium in concentrations of 0.1 percent by weight or more’’ with a shorter phrase: Materials ‘‘that contain at least 0.1 percent beryllium by weight.’’ As the agency explained in the 2018 NPRM, this change is meant to simplify the language and does not change the meaning. OSHA did not receive any comments on the proposed simplification of this language. Therefore, OSHA is adopting the new phrase ‘‘that contain at least 0.1 percent beryllium by weight’’ in paragraph (j)(3) in the final rule. Fourth, OSHA proposed adding an explicit exemption for materials transferred within a plant from the cleaning and enclosure requirements in new paragraphs (j)(3)(ii) and (iii). While this exemption was not explicitly included in the regulatory text of the 2017 final rule, its inclusion in this final rule is not a substantive change. As OSHA noted in the 2018 NPRM, the agency never intended the provisions of paragraph (j)(3) to require employers to clean or enclose materials to be used in another location within the same facility (83 FR at 63756 (citing 82 FR at 2696)).18 Thus, the inclusion of the exemption in the proposed regulatory text simply makes the agency’s intent plain. The USW supported the proposed inclusion of the ‘‘intra-plant transfer’’ exemption in the regulatory text (Document ID 0033, p. 5). Specifically, the USW pointed to its comments on OSHA’s 2015 NPRM, which stated that the agency should not require all materials to be decontaminated or sealed in an enclosure (Document ID 0033, p. 5). Rather, the USW explained, the initial intent of the corresponding provision of the model standard it drafted jointly with Materion was ‘‘to ensure that materials leaving a facility and designated for recycling be containerized or visibly clean’’ (Document ID 0033, p. 5) (emphasis added). DOD did not submit a comment on the proposed intra-plant transfer exception, but its comment on another part of paragraph (j)(3) suggested that it understood the paragraph to apply to intra-plant transfers (see Document ID 18 As OSHA noted in the 2018 NPRM, employees who may be exposed to these materials during intra-plant transfers will not go unprotected. On the contrary, other provisions of the beryllium standard require employers to communicate possible hazards to these employees and protect them during such transfers (see, e.g., paragraph (f), Methods of compliance; paragraph (g), Respiratory protection; paragraph (h), Personal protective clothing and equipment; paragraph (m), Communication of hazards). E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations 0029, p. 1 (‘‘To support the proposed revisions that require surface cleaning of equipment and materials to remove beryllium before recycling, re-use, or intra-plant transfers, we recommend the use of the Department of Energy’s (DOE’s) cleanliness standards as specified in Title 10 Code of Federal Regulations Part 850.’’)).19 As discussed below, OSHA does not agree with DOD’s suggested use of DOE’s surface limits and, as already stated, OSHA never intended to require employers to clean or enclose materials transferred within a single plant. Rather, the provisions in paragraph (j)(3) have always been intended to protect employees after the materials leave the facility. Materion commented that berylliumcontaining scrap metal or wastes are, in most cases, recycled internally ‘‘either within or between facilities,’’ but companies ‘‘also recycle scrap or purchase scrap on the open market’’ (Document ID 0038, p. 32). Materion further asserted that OSHA’s regulation ‘‘should not be construed as potentially limiting the environmentally beneficial recycling of metals’’ (Document ID 0038, p. 32). OSHA agrees that paragraph (j)(3)’s requirements should not be read to discourage the reuse or recycling of metals and reads Materion’s statements regarding the manner in which companies recycle scrap metal or wastes (i.e., within or between facilities or on the open market) as purely informational. However, the agency notes that this comment could be read to suggest that the exception for items transferred within a facility also applies to items transferred between two facilities owned by the same employer. Such an interpretation would be incorrect—the intra-plant transfer exception only exempts transfers within a single plant; material transfers between plants are not excluded, regardless of plant ownership. This comment also alerted the agency to a potential ambiguity in the text of proposed paragraph (j)(3)(i). Specifically, OSHA realized that the phrase ‘‘to another party’’ could be read to suggest that transfers between two facilities owned by the same employer are exempted from the labeling requirements in paragraph (j)(3)(i). Again, this was not the agency’s intent. As noted above, the proposed addition of the explicit intra-plant transfer exception in paragraphs (j)(3)(ii) and 19 DOD’s suggestion regarding DOE’s cleanliness standards is addressed below in this section of this final rule as part of the discussion of the seventh and final proposed change to paragraph (j)(3) relating to the cleaning of materials designated for disposal, recycling, or reuse. VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 (iii) was not a substantive change—the agency never intended to require employers to clean or enclose materials transferred within a single plant. The reorganization of paragraph (j)(3) was also not a substantive change; it merely allowed the agency to make clear that the labeling requirements apply regardless of whether the employer transfers materials for the purpose of disposal, recycling, or reuse (83 FR at 63763, 63756). Because the labeling requirements were part of paragraphs (j)(3)(i) and (ii) in the 2017 final rule, to which the intra-plant exemption applied, and were simply moved to a new stand-alone paragraph without substantive change, the scope of those activities requiring labeling has not changed. Put another way, the intraplant exemption continues to apply to the labeling provision to the same extent it did prior to the proposal. And, more to the point, the labeling requirement continues to apply to all other transfers for purposes of disposal, recycling, or reuse, regardless of whether they involve transfers between two locations operated by the same employer. If proposed paragraph (j)(3)(i) was interpreted to only require the labeling of materials transferred to another employer (rather than another facility), then an employer could place materials that were designated for reuse in an enclosure and transfer them to another facility without a label, so long as the employer owned the second facility. This scheme could potentially put both the transferring and receiving employees at risk by failing to appropriately apprise them of the presence of beryllium-containing materials and the hazardous nature of beryllium exposure. Moreover, such an interpretation could lead to inconsistencies or conflicts with the Hazard Communication standard (HCS) (29 CFR 1910.1200), which requires labeling for all hazardous chemicals leaving a worksite regardless of destination. This is clearly laid out in OSHA’s Hazard Communication directive (CPL 02–02– 079): ‘‘Manufacturers, importers, and distributors are required to ensure that each container of hazardous chemicals is appropriately labeled. Labeling requirements apply for shipped containers leaving the workplace regardless of whether the intended destination is interstate or intrastate.’’ Although the agency’s intent was always to exempt only intra-plant transfers from the labeling requirement, OSHA sees value in eliminating any ambiguity and ensuring that labeling is consistent with the requirements of the HCS. Therefore, the agency is revising PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 42615 the text of paragraph (j)(3)(i) to more explicitly match the intent expressed in both the 2017 rule and the 2018 proposal. Specifically, OSHA is revising paragraph (j)(3)(i) in the final rule to strike the phrase ‘‘to another party’’ and add the ‘‘except for intra-plant transfers’’ language that is found in paragraphs (j)(3)(ii) and (iii). Final paragraph (j)(3)(i), therefore, provides that except for intra-plant transfers, when the employer transfers materials that contain at least 0.1 percent beryllium by weight or are contaminated with beryllium for disposal, recycling, or reuse, the employer must label the materials in accordance with paragraph (m)(3) of this standard. In summary, OSHA is adopting the proposed addition of the explicit intraplant exception in final paragraphs (j)(3)(ii) and (iii). No commenters opposed these revisions and, therefore, OSHA has decided to retain them, unchanged from the proposal (see Document ID 0038, p. 32; 0033, p. 5). The agency is also revising proposed paragraph (j)(3)(i) to explicitly incorporate the exception. As explained in detail above, none of these changes are substantive, but OSHA expects the clarified language will aid employers in understanding and, thus, carrying out their responsibilities under these provisions. OSHA’s fifth proposed change to paragraph (j)(3) focused on the requirement to place items in ‘‘sealed, impermeable enclosures.’’ Specifically, paragraph (j)(3)(i) in the 2017 final rule required employers to place certain materials bound for disposal in ‘‘sealed, impermeable enclosures, such as bags or containers.’’ Paragraph (j)(3)(ii) in the 2017 final rule also required enclosure of certain materials that had not been appropriately cleaned. In the preamble to the 2017 final rule, OSHA explained that it intended these requirements to be broad and performance-oriented and clarified that the term ‘‘impermeable’’ was not intended to mean absolutely impervious to rupture but, rather, that the enclosures would not allow materials to escape under normal conditions of use (82 FR at 2695). Nevertheless, the agency learned that confusion around the enclosure requirement remained. To alleviate the confusion regarding the enclosure requirements, OSHA proposed in the 2018 NPRM to clarify the ‘‘sealed, impermeable bag’’ requirement to make explicit what had been intended in the 2017 final rulemaking: That employers must utilize enclosures that prevent the release of beryllium-containing E:\FR\FM\14JYR3.SGM 14JYR3 42616 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations particulate or solutions under normal conditions of use, storage, or transport. The agency further explained that the proposed change would reinforce the requirement that employers select the appropriate type of container to prevent release based on the form of beryllium and how it is normally handled. For example, a container that prevents the release of a beryllium particulate may not be effective in preventing the release of a beryllium solution. One commenter, Materion, submitted comments specific to this proposed change (Document ID 0038, p. 32). Materion was supportive of the revision, noting that it will significantly improve understanding of the requirements for containerization and transport of recycled materials and asserting its belief that without the proposed changes the disposal and recycling provision are technologically and economically infeasible (Document ID 0038, p. 32). According to Materion, the change appropriately accommodates the various physical properties of beryllium materials being recycled, the ‘‘many different applications resulting in many types of container configurations,’’ and the ‘‘many types of transfer mechanisms and end use processing applications’’ (Document ID 0038, p. 32). No commenters opposed these revisions and, therefore, OSHA has decided to retain them unchanged from the proposal. Unlike the previous five proposed changes, the sixth proposed change was more than a clarifying change from the 2017 final rule. Under the 2017 final rule, employers could either clean or enclose materials designated for recycling. Materials designated for disposal, however, could only be enclosed; the option to clean the materials was not available. The difference in the two provisions stemmed from the concern that municipal and commercial disposal workers should be protected from exposure to beryllium from contact with materials discarded from beryllium work areas in general industry by placing those materials in enclosed containers. However, as OSHA explained in the 2018 NPRM, the agency had not considered situations where it would be impractical to require enclosure because the materials in question were large items, such as machines or structures, that may contain at least 0.1 percent beryllium by weight or be contaminated with beryllium, rather than more common items, such as beryllium scrap metal or shavings. With that situation in mind, OSHA reconsidered its earlier determination VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 and preliminarily determined that workers handling items designated for disposal, like workers handling items designated for recycling or reuse, would be just as protected from exposure to beryllium if the items are cleaned to be as free as practicable of beryllium as if the items were placed in containers. In accordance with this preliminary determination, OSHA in the 2018 NPRM proposed adding the cleaning option to paragraph (j)(3)(ii). The agency explained that, regardless of whether an employer chooses to clean or enclose materials designated for disposal, the labeling requirements under proposed paragraph (j)(3)(i) would apply and would require that the materials designated for disposal be labeled in accordance with paragraph (m)(3) of this standard. It further noted its expectation that these proposed changes would maintain safety and health protections for workers. OSHA received no comments on this proposed revision and has therefore finalized it as proposed. The seventh and final proposed change also relates to the cleaning of materials designated for disposal, recycling, or reuse. Paragraph (j)(3)(ii) in the 2017 final rule required the specified materials to be cleaned to be as free as practicable of surface beryllium contamination. However, the 2017 final rule did not define the term ‘‘surface beryllium contamination’’ and other parts of the 2017 final rule used the term ‘‘as free as practicable’’ without the ‘‘surface beryllium contamination’’ modifier. To alleviate any potential confusion stemming from the agency’s use of this new, undefined term, OSHA proposed to eliminate any potential confusion by removing the phrase ‘‘surface beryllium contamination.’’ OSHA did not receive any comments that directly addressed the removal of this phrase but one stakeholder, DOD, offered a suggestion. Specifically, DOD recommended the use of the Department of Energy’s (DOE’s) cleanliness standards as specified in Title 10 Code of Federal Regulations Part 850 (Document ID 0029, p. 1). According to DOD, these standards are ‘‘generallyacceptable criteria for surface contamination and were adopted based on DOE’s assessment of practical cleanliness levels and proven feasibility’’ (Document ID 0029, p. 1). OSHA agrees that DOE’s standards might be a useful reference for employers seeking advice on how to clean materials prior to transfer for disposal, reuse, or recycling or how to determine the effectiveness of existing cleaning efforts and that wipe sampling in general can be a useful tool for PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 employers to provide feedback on their cleaning procedures. To the extent that DOD’s recommendation was intended to suggest an amendment to the proposed provisions, however, OSHA does not believe such an amendment is appropriate. As discussed in the 2018 NPRM, the ‘‘as free as practicable’’ standard is well-understood by the regulated community. OSHA has used the phrase in existing substance-specific standards, including those for lead (29 CFR 1910.1025, 29 CFR 1926.62), chromium (VI) (29 CFR 1910.1026), and asbestos (29 CFR 1910.1001), and has previously discussed its meaning in a 2014 letter of interpretation explaining the phrase in the context of the chromium standard (OSHA, Nov. 5, 2014, Letter of Interpretation, available at https://www.osha.gov/laws-regs/ standardinterpretations/2014-11-05). Additionally, as discussed in the Summary and Explanation of the definition of the term dermal contact with beryllium, the best available scientific evidence on adverse health effects from dermal contact with beryllium does not provide sufficient information to link risk of adverse health effects with specific levels of surface contamination. Therefore, the agency has chosen not to require a specific target level of surface contamination for any of the surface cleanliness requirements of the beryllium standards. Instead, the agency has determined that the more performance-oriented ‘‘as free as practicable’’ standard for cleaning— rather than a more prescriptive requirement—is appropriate. The agency finds that the use of the broader standard will better serve employees by allowing employers in a variety of industries flexibility to decide what type of control methods and procedures are best suited to their beryllium operations. Having received no other comments on this proposed provision, OSHA strikes the phrase ‘‘surface beryllium contamination’’ from the regulatory text, as proposed. In summary, OSHA is finalizing (j)(3) as proposed in 2018, except for the clarifying revision in paragraph (j)(3)(i), which explicitly incorporates the intraplant exception found in paragraphs (j)(3)(ii) and (j)(3)(iii). OSHA has based this decision on the record and has determined this will maintain or enhance worker protections. Medical Surveillance. Paragraph (k) of the beryllium standard for general industry (29 CFR 1910.1024) addresses medical surveillance requirements. The paragraph specifies which employees E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations must be offered medical surveillance, as well as the frequency and content of medical examinations. It also sets forth the information that must be provided to the employee and employer. The purposes of medical surveillance for beryllium are (1) to identify berylliumrelated adverse health effects so that appropriate intervention measures can be taken; (2) to determine if an employee has any condition that might make him or her more sensitive to beryllium exposure; and (3) to determine the employee’s fitness to use personal protective equipment such as respirators. The inclusion of medical surveillance in the beryllium standard for general industry is consistent with Section 6(b)(7) of the OSH Act (29 U.S.C. 655(b)(7)), which requires that, where appropriate, medical surveillance programs be included in OSHA health standards to aid in determining whether the health of employees is adversely affected by exposure to the hazards addressed by the standard. In the 2018 NPRM, OSHA proposed two sets of changes to paragraph (k). The first set of changes proposed is in paragraph (k)(2), which specifies when and how frequently medical examinations were to be offered to those employees covered by the medical surveillance program. Paragraph (k)(2)(i)(B) of the standard requires the employer to provide a medical examination within 30 days after determining that the employee shows signs or symptoms of CBD or other beryllium-related health effects or that the employee has been exposed to beryllium in an emergency. After publication of the 2017 final rule, stakeholders suggested to OSHA that, for individuals exposed one-time during an emergency, 30 days may be insufficient to detect beryllium sensitization, so a longer timeframe for medical examinations may be more appropriate (83 FR at 63757). In the 2018 NPRM, OSHA acknowledged uncertainty regarding the time period in which sensitization may occur following a one-time exposure to a significant concentration of beryllium in an emergency (83 FR at 63757). In fact, beryllium sensitization can occur several months or more after initial exposure to beryllium among workers with regular occupational exposure to beryllium (see 83 FR at 63757 (citing 82 FR at 2530, 2533)). Based on this evidence and stakeholder feedback, OSHA proposed removing the requirement for a medical examination within 30 days of exposure in an emergency, under paragraph (k)(2)(i)(B), and adding paragraph (k)(2)(iv), which would require the employer to offer a VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 medical examination at least one year after but no more than two years after the employee is exposed to beryllium in an emergency. OSHA requested comments on the appropriateness of this change (83 FR at 63757). Several stakeholders commented on this issue. NJH supported extending the time to offer medical surveillance to one year after an emergency because 30 days following a high exposure may not be enough time to detect beryllium sensitization (Document ID 0022, p. 8). Materion also agreed with the proposed one-to-two-year timeframe for examinations following exposure during an emergency because 30 days may be too soon to detect an immunological change using the BeLPT (Document ID 0038, p. 33). DOSH similarly commented that delaying the medical examination to one year might improve the detection of sensitization because it may take several months to detect it (Document ID 0023, p. 2). DOSH also expressed concern, however, that workers would not get counseling about signs and symptoms of berylliumrelated conditions, an occupational history review, and other medical advice which may allow for the worker to identify a developing condition within the first year after exposure (Document ID 0023, p. 2). DOSH added that if the medical examination will be delayed, it would be appropriate to have a requirement for additional training or a brief medical consultation for workers who are not knowledgeable about beryllium and the potential medical conditions that may be triggered by exposure (Document ID 0023, pp. 2–3). The ACOEM and NSSP shared DOSH’s concerns regarding potential delays in consultations and counseling (Document ID 0024, p. 2; 0027, p. 4). The NSSP recommended an earlier discussion with employees exposed in an emergency to address their individual concerns, the medical path forward, options available, and to answer any questions the employees might have (Document ID 0027, p. 4). It suggested that the medical examination could then be scheduled in keeping with the individual employee’s medical needs (Document ID 0027, p. 4). ACOEM opposed the change, arguing that workers who are exposed to beryllium in an emergency deserve prompt medical evaluation to understand the potential health risks, receive baseline testing, if desired, and to receive medical counseling (Document ID 0024, p. 2). ACOEM maintained that it would be ‘‘an extremely insensitive and harsh change in policy’’ to require exposed workers to wait more than a year to receive PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 42617 professional medical advice (Document ID 0024, p. 2). On the other hand, Materion argued that the standard protects workers who may have been exposed in an emergency, regardless of when the emergency occurred, by requiring employers to make medical surveillance available to any employees showing signs and symptoms of CBD or other beryllium-related health effects (Document ID 0038, p. 33). Specifically, paragraph (k)(2)(i)(B) requires employers to provide an examination to these employees within 30 days of determining that the employee shows signs or symptoms of CBD. After considering these comments and the record as a whole on this issue, OSHA reaffirms its preliminary belief that testing conducted during the proposed time period of one to two years is more likely to detect sensitization than testing conducted 30 days following emergency exposure (82 FR at 63757). Nevertheless, DOSH, the NSSP, and ACOEM’s concerns about possible delays in medical consultations and examinations and lack of employee knowledge of potential health effects prompted the agency to reevaluate the standard’s medical surveillance and training triggers to determine if any employees could potentially be exposed in an emergency but may not be knowledgeable about symptoms, health effects, and medical surveillance because they have not been trained, or if any employees might be exposed but have not recently received a medical examination during which they had the opportunity to talk with a PLHCP about exposure to beryllium. First, OSHA considered the population of employees affected by emergencies. As noted in the 2018 NPRM, OSHA estimates that a very small number of employees, likely less than 0.1 percent of the affected population, would be affected by emergencies in a given year (83 FR at 63764). Second, OSHA considered if any of the small number of employees exposed in an emergency in a given year would not be knowledgeable about symptoms, health effects, and medical surveillance through the training provided under paragraph (m)(4) at the time of emergency and, thus, might need such training after exposure during an emergency. Paragraph (m)(4)(i) requires the employer to provide information and training in accordance with the Hazard Communication Standard (HCS), 29 CFR 1910.1200(h), for each employee who has, or can reasonably be expected to have, airborne exposure to or dermal contact with beryllium. Final paragraph (m)(4)(ii) requires employers to ensure that each E:\FR\FM\14JYR3.SGM 14JYR3 42618 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations employee who is, or can reasonably be expected to be, exposed to airborne beryllium can demonstrate knowledge and understanding of a number of specified topics, including (1) the health hazards associated with airborne exposure to and dermal contact with beryllium, including signs and symptoms of CBD; (2) the purpose and a description of the medical surveillance program under paragraph (k) of the standard, including risks and benefits of each test to be offered; (3) the purpose and a description of the medical removal protection provided under paragraph (l) of the standard; and (4) the contents of the standard. OSHA expects that the vast majority of employees who could be exposed to beryllium in an emergency are those who are regularly exposed to beryllium as part of their normal work duties performed near processes involving beryllium. Therefore, most of those employees are already likely to be trained in accordance with the HCS under paragraph (m)(4)(i) because the training requirements under paragraph (m)(4)(i) are triggered by actual, or reasonably anticipated, airborne exposure at any level or dermal contact with beryllium. In addition, OSHA anticipates that most of these employees would also be knowledgeable about beryllium-related health effects, medical surveillance, medical removal, and the remainder of the standard, as required by paragraph (m)(4)(ii). Nevertheless, if an employee who had not been trained in accordance with paragraph (m)(4) or was not knowledgeable of the subjects covered in paragraph (m)(4)(ii) was exposed in an emergency, the standard would require that the employee be trained after the emergency because the exposure during the emergency would cause them to meet the standard’s training triggers. In other words, the standard already provides for training of the very small number of untrained or unknowledgeable employees who might be exposed during an emergency.20 Third, OSHA considered if any employees exposed during an emergency would likely not have received a recent examination under the standard. Under paragraph (k)(1)(i), the employer must make medical surveillance available to four groups of employees: (A) Employees who are or 20 OSHA notes that the standard would require additional training for workers who were exposed during an emergency who had already been trained if the employer realized that those workers were not knowledgeable about topics such as the potential medical conditions which may result from exposure to beryllium or symptoms that may trigger a medical examination (see paragraph (m)(4)(ii)(A); see also additional training requirements under paragraph (m)(4)(iii)). VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 are reasonably expected to be exposed at or above the action level for more than 30 days per year, (B) employees who show signs or symptoms of CBD or other beryllium-related health effects, (C) employees who are exposed to beryllium during an emergency, and (D) employees whose most recent written medical surveillance opinion required by paragraph (k)(6) or (k)(7) of the standard recommends periodic medical surveillance. Under paragraph (k)(2)(ii), employees who continue to meet abovetriggers (A), (B), or (D) of the standard receive examinations at least every two years after their most recent examination. Employees previously exposed in an emergency (and all other employees who have received an examination, but no longer meet the criteria for periodic examinations) continue to be offered a standardized BeLPT or equivalent test at least every two years, unless they are confirmed positive (paragraph (k)(3)(i)(E); 82 FR at 2705). As noted above, OSHA expects that the vast majority of employees who could be exposed to beryllium in an emergency are those who are regularly exposed to beryllium as part of their normal work duties that are performed near processes involving beryllium. As a result, OSHA expects that the majority of employees who could be exposed to beryllium in an emergency are likely to be those who meet the trigger for periodic medical surveillance under paragraph (k)(1)(i)(A) (i.e., they are or are reasonably expected to be exposed at or above the action level for more than 30 days per year). Thus, they have likely had an opportunity to consult with a PLHCP at a minimum of every two years (paragraph (k)(2)(ii)). Other employees exposed during an emergency may have also had a recent examination because they have recently met one of the other triggers, such as experiencing signs or symptoms of CBD or other berylliumrelated health effects. OSHA recognizes, however, that a much smaller number of employees, such as office and warehouse workers, who do not have regular exposures to beryllium at or above the action level and have also not met one of the other medical surveillance triggers, could potentially be exposed to beryllium in an emergency. These employees may have never received a medical examination or a BeLPT or equivalent test. OSHA agrees with ACOEM that it is unacceptable to have employees who have not recently been offered a medical examination under the beryllium standard wait for a year or more for a medical consultation and examination after exposure during an emergency. PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 These employees may not have baseline information on their health status, and they may not have had the opportunity to speak to a PLHCP to ask questions related to their concerns, such as possible health risks, symptoms, and medical interventions. In contrast, employees who had a medical examination within the previous two years would have a baseline and have had the opportunity to speak with a health professional. Therefore, to adequately meet the needs of all employees who may be exposed in an emergency, OSHA is deleting final paragraph (k)(2)(iv) and replacing it with paragraphs (k)(2)(iv)(A) and (k)(2)(iv)(B). New paragraph (k)(2)(iv)(A) addresses the needs of the very small group of employees who are exposed in an emergency but have not received a medical examination under paragraph (k)(1)(i) within the previous two years. Specifically, paragraph (k)(2)(iv)(A) requires that if an employee is exposed to beryllium during an emergency and has not received a medical examination under paragraph (k)(1)(i) within the previous two years, then the employer must provide that employee with a medical examination within 30 days of the date of the emergency. New paragraph (k)(2)(iv)(B), on the other hand, focuses on employees who are exposed during an emergency, but have recently received an examination. Under paragraph (k)(2)(iv)(B), if an employee has received a medical examination under paragraph (k)(1)(i) within the previous two years, then the employer would be required to offer that employee a medical examination that meets the requirements of the standard at least one year but no more than two years after the employee was exposed to beryllium in an emergency. OSHA concludes that it is appropriate to provide a medical examination within 30 days after the employee was exposed in an emergency, if the employee has not had an examination under the beryllium standard within the last two years. It addresses the concerns of DOSH, ACOEM, and the NSSP that employees receive timely medical consultations and evaluations. If an employee has not had a previous examination under the standard, the examination at 30 days after the emergency allows for collection of baseline values on health status, as recommended by ACOEM. Baseline information about the employee’s current health status, such as lung function, will allow for a comparison with changes that might occur in the future. Moreover, if the employee is confirmed positive by the baseline E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations BeLPT and there is a possibility that the employee could be exposed to beryllium again in the future, knowledge about the confirmed positive finding would allow the employee to consider risks and options related to employment (82 FR at 2702). OSHA recognizes, as NJH, DOSH, and Materion noted, that 30 days following the emergency is not the best timeframe for detecting sensitization. However, paragraph (k)(3)(ii)(E) of the beryllium standard for general industry already requires that employees who received a medical examination because of an emergency exposure continue to receive a BeLPT, or an equivalent test, every two years following that examination, unless the employee is confirmed positive. Therefore, the standard already requires the employers to offer these employees a BeLPT for the remainder of their tenure in the workplace where they were exposed in an emergency, rather than limiting the opportunity to detect sensitization to 30 days following the emergency. OSHA also concludes that it is appropriate to require employers to offer medical surveillance within one to two years after exposure to beryllium in an emergency, if that employee had an examination that meets the requirements of the beryllium standard within the last two years. These employees could include those who undergo periodic medical surveillance at least every two years under paragraph (k)(2)(A) or (D), or who may have received a medical examination within the last two years because they were experiencing symptoms or were exposed in a previous emergency (paragraphs (k)(2)(B) and (C)). These employees would have received a recent medical consultation and examination which would have allowed them to ask questions. In addition, these employees would have received a baseline examination. Like the employees examined within 30 days after exposure to beryllium in an emergency, all these employees examined within one to two years of the emergency will continue to be offered BeLPT testing every two years under paragraph (k)(3)(ii)(E) if they have not been confirmed positive and do not or no longer meet the criteria for full periodic medical examinations under paragraph (k)(2)(ii). The requirement for continuing BeLPTs for any employee who has received an examination under the beryllium standard, including for an emergency exposure, addresses another concern voiced by NJH, which is that anyone exposed in an emergency should be provided periodic medical surveillance (Document ID 0022, p. 8). VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 If the employee is confirmed positive, or if the licensed physician otherwise deems it appropriate, the licensed physician is to provide in the written medical opinion to the employee a referral to a CBD diagnostic center and a recommendation for continued periodic medical surveillance under paragraph (k)(5)(iii) and (iv). If the employee authorizes the recommendation for referral to be included in the written opinion, the employer must provide an examination at a CBD diagnostic center (discussed in more detail below) (paragraph (k)(6)(iii)). Once an employee is evaluated at a CBD diagnostic center, as described under paragraph (k)(7)(i), the employee may choose to have any subsequent medical examinations for which the employee is eligible, performed at the CBD diagnostic center at no cost to the employee (see final paragraph (k)(7)(vi)). Therefore, the standard already allows for periodic BeLPT testing for all employees exposed in an emergency, and periodic medical surveillance for any of those employees who are confirmed positive. Another concern that was raised by DOSH is that delaying the medical examination to at least one year following the emergency may result in employees not receiving the examination if their employment ends within that one-year period (Document ID 0023, p. 3). This concern continues to be relevant to employees who are receiving the examination for an emergency exposure at one to two years after the exposure in the emergency (paragraph (k)(2)(iv)(B)). If employment does end before one year after the emergency, paragraphs (k)(2)(iii) and (1)(i)(C) require the employer to offer a medical examination at termination of employment to any employee exposed to beryllium in an emergency, unless the employee received an examination in accordance with the standard within the last 6 months. OSHA is concerned that this provision would not require employers to offer a medical examination to some employees who would receive the emergency examination at one to two years after the emergency exposure. For example, if such an employee, already under medical surveillance, received a medical examination one month before the emergency and then terminated employment two months after the emergency, the employer would not be required to offer a medical examination to that employee exposed during the emergency under the proposed changes, and the employee would not have an opportunity to have an medical exam PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 42619 that could detect any adverse effects that might have occurred because of the emergency. OSHA agrees with DOSH that further revision is necessary to ensure that every employee who is exposed in an emergency receives an examination following the emergency. Accordingly, OSHA is revising paragraph (k)(2)(iii) to require that each employee who is exposed in an emergency and has not received an examination since the emergency exposure is provided an examination at the time employment is terminated. OSHA finds that this change better protects employees because it allows health effects that could have resulted from the emergency exposure to be more readily detected. In making these decisions on the appropriate timing for medical examinations for employees exposed to beryllium during an emergency, OSHA considered Materion’s point that employees experiencing signs or symptoms or other beryllium-related health effects after an emergency can ask for an examination under paragraph (k)(1)(i)(B) (Document ID 0038, p. 33). As explained above, all employees who are exposed in an emergency will either have previously received training under paragraph (m)(4) or will need to be trained within a reasonable time after exposure. And these employees should already be knowledgeable or will soon become knowledgeable about the health hazards associated with airborne exposure to and dermal contact with beryllium, including signs and symptoms of CBD, as required by paragraph (m)(4)(ii). Therefore, all employees exposed during an emergency should be able to identify and report signs or symptoms of CBD or other beryllium-related health effects either at the time of the emergency or within a reasonable time after it. Materion is, thus, correct in pointing out that if these employees did experience such signs or symptoms, they could ask for a medical examination. Other employees exposed during an emergency that have not had an examination and do not experience these health effects, however, would still not have had the opportunity for a timely consultation and medical examination with a PLHCP. Consequently, OSHA does not find that the signs-or-symptoms trigger is sufficient to resolve the concerns raised by the other stakeholders. OSHA also proposed one additional change to the paragraph involving emergency exposure. As promulgated in the 2017 final rule, paragraph (k)(2)(i)(B) required the employer to provide a medical examination within 30 days E:\FR\FM\14JYR3.SGM 14JYR3 42620 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations after the employer determines that an employee shows signs or symptoms of CBD or other beryllium-related health effects or has been exposed to beryllium in an emergency. Because OSHA believes that employers typically will learn of any emergency resulting in exposure immediately or soon after it occurs, OSHA preliminarily determined that it is appropriate to measure the time period from the date of exposure. Therefore, under proposed paragraph (k)(2)(iv), the time period for providing a medical examination begins to run from the date the employee is exposed during an emergency, regardless of when the employer discovers that the exposure occurred. OSHA requested comments on the appropriateness of calculating the time period for a medical examination from the occurrence of the emergency rather than from the employer’s determination of eligibility. Materion agreed with OSHA that most employers will learn about the emergency resulting in exposure immediately or soon after the occurrence, and it supported measuring the time period from the date of the exposure, provided that the employer determined that the incident can be defined as an emergency under the standard (Document ID 0038, pp. 33– 34). OSHA did not receive any comments objecting to OSHA’s proposal to measure the time period from the date of exposure in an emergency; therefore, OSHA is retaining the proposed language to measure the time period from the date of the exposure in the emergency in final paragraphs (k)(2)(iv)(A) and (B). Paragraph (k)(2)(iv)(B) does not preclude employers from voluntarily providing a medical examination within the first year after an emergency. Providing a medical examination sooner would not, however, relieve an employer of the duty to provide an exam in the one-to-two-year window. For those employees who are already eligible for periodic medical surveillance, the examination for the emergency exposure could be scheduled to coincide with the next periodic examination that is within two years of the last periodic medical examination and at least one but no more than two years after the emergency exposure, satisfying the requirements of both paragraphs (k)(2)(ii) and (iv)(B). In summary, OSHA is modifying proposed paragraph (k)(2)(iv) to customize protections for two general groups of employees who could be exposed to beryllium in an emergency. Paragraph (k)(2)(iv)(A) will require the employer to offer a medical examination to an employee within 30 days after the VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 employee was exposed to beryllium in an emergency, if the employee has not had an examination under paragraph (k)(1)(i) within the last two years. This requirement improves protections for what is likely to be a very small group of employees who have not had a medical examination under the beryllium standard within the last two years because it allows those employees to have a timely consultation and examination. Paragraph (k)(2)(iv)(B) will require the employer to offer a medical examination to an employee within one to two years after the employee was exposed to beryllium in an emergency, if the employee had an examination under paragraph (k)(1)(i) of the beryllium standard within the last two years. This provision eliminates the requirement to offer an examination within 30 days to the majority of employees who are likely to be exposed in an emergency and have already received a recent medical examination. Thus, these employees would have received a baseline examination and a recent consultation regarding beryllium. And either group will continue to be offered the BeLPT, or an equivalent test, every two years under paragraph (k)(3)(ii)(E), even if they do not or no longer meet the criteria for full periodic medical examinations under paragraph (k)(ii). OSHA is also revising paragraph (k)(2)(iii) to require that employers offer a medical examination to any employee who has not received an examination since the emergency exposure at the time the employee’s employment is terminated. Again, OSHA expects this to be a very small group of employees that would have had an exam within six months of termination but not have had an exam since exposure during an emergency. This change ensures that all employees exposed in an emergency receive a medical examination for the emergency exposure before their employment is terminated. In addition, other provisions in the standard ensure that either group of employees (i.e., those who receive a medical examination within 30 days or one to two years after an emergency) are knowledgeable about the signs and symptoms of CBD and that if employees are experiencing signs and symptoms, they will be provided a medical examination within 30 days of the employer determining that they are experiencing such signs or symptoms. The second (and final) set of changes that OSHA proposed to the standard’s medical surveillance requirements is in paragraph (k)(7), which contains the requirements for evaluation at a CBD diagnostic center. In this final rule, OSHA is amending paragraph (k)(7) in PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 three ways. First, OSHA is revising paragraph (k)(7)(i) to require that the evaluation must be scheduled within 30 days, and must occur within a reasonable time, of the employer receiving one of the types of documentation listed in paragraph (k)(7)(i)(A) or (B). Second, OSHA is adding a provision, in paragraph (k)(7)(ii), which clarifies that, as part of the evaluation at the CBD diagnostic center, the employer must ensure that the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. The new provision also states that if any of the tests deemed appropriate by the examining physician are not available at the CBD diagnostic center, they may be performed at another location that is mutually agreed upon by the employer and the employee. Third, OSHA is making a handful of minor, nonsubstantive numbering and reference edits to other provisions in paragraph (k)(7) to account for the addition of new paragraph (k)(7)(ii). Specifically, OSHA is renumbering current paragraphs (k)(7)(ii), (iii), (iv), and (v) as (k)(7)(iii), (iv), (v), and (vi), respectively, and is adding a reference to new paragraph (k)(7)(ii) to the newly renumbered paragraph (k)(7)(vi). Each of these final revisions differ in some way from the proposed amendments based on stakeholder feedback. With regard to the first change concerning the timing of the exam, the current standard requires employers to provide the examination within 30 days of the employer receiving one of the types of documentation listed in paragraph (k)(7)(i)(A) or (B). The purpose of the 30-day requirement was to ensure that employees receive the examination in a timely manner. As OSHA explained in the proposal, however, since the publication of the 2017 final rule stakeholders have raised concerns that the examination and any required tests could not be scheduled and completed within 30 days (83 FR at 63758). To address this concern, OSHA proposed that the employer provide an initial consultation with the CBD diagnostic center, which could occur via telephone or virtual conferencing methods, rather than the full evaluation, within 30 days of the employer receiving one of the types of documentation listed in paragraph (k)(7)(i)(A) or (B). OSHA explained that providing a consultation before the full examination at the CBD diagnostic E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations center would demonstrate that the employer made an effort to begin the process for a medical examination. OSHA also noted that the proposed change would also allow (1) the employee to consult with a physician to discuss concerns and ask questions while waiting for a medical examination, and (2) the physician to explain the types of tests that are recommended based on medical findings about the employee and the risks and benefits of undergoing such testing. OSHA requested comments on the appropriateness of providing the consultation within 30 days and on the sufficiency of a consultation via telephone or virtual conference (83 FR at 63758). Several stakeholders offered comments on this issue (Document ID 0021, p. 3; 0022, p. 6; 0029, p. 2; 0038, p. 34). The ATS, NJH, and Materion agreed that an examination at the CBD diagnostic center should not be required to occur within 30 days of the referral because it may take weeks or months before the CBD diagnostic center has an opening for an evaluation. In addition, many of the stakeholders noted that work responsibilities, personal and family obligations, or the need to arrange travel may make it difficult for employees to have an evaluation done within that time period. Materion also supported the proposed requirement for a telephone or virtual consultation within 30 days, claiming that it is a more workable solution that does not reduce protections, while allowing employees to consider medical options available under the standard and offering the employee more flexibility in determining when they can undergo testing based on their availability and preference (Document ID 0038, p. 34). In contrast to Materion, the ATS and NJH opposed the proposed requirement for a consultation that can be performed via telephone or virtual conferencing within 30 days of the employer receiving documentation recommending a referral. NJH commented that a video or phone consultation would add cost and logistical difficulty to scheduling, and that it is not necessary because the PLHCP who sees the employee for screening provides information on the clinical evaluation. Furthermore, they commented, there are HIPAA privacy issues of a phone or video conference to consider (Document ID 0022, p. 6). The ATS agreed with many of the concerns expressed by NJH, including concerns regarding logistical challenges, the need for an in-person clinical evaluation and review of medical tests to provide effective care, and VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 redundancy with the PLHCP consultation (Document ID 0021, p. 3). The ATS and NJH recommended that the standard be revised to require that the employer make an appointment for the employee to be evaluated at the CBD diagnostic center within 30 days of receiving documentation for the referral (Document ID 0021, p. 3; 0022, p. 6). DOD also opposed requiring an evaluation by telephone or virtual conferencing and stated that an ill worker should be examined immediately; it recommended that the employer make the appointment for evaluation at a CBD diagnostic center within seven days of receiving documentation for a referral (Document ID 0029, p. 2). After considering these comments, OSHA is convinced that scheduling a phone or virtual consultation with the CBD diagnostic center is an unnecessary step that adds logistical complications and costs. Although the agency understands Materion’s point that the additional consultation could provide employees with more time and information to make medical decisions, as well as accommodate other scheduling logistics, OSHA finds that the scheduling approach suggested by the ATS and NJH addresses both the logistical difficulties cited by stakeholders with respect to the requirements in the current standard and the timing concerns Materion raised. Moreover, OSHA finds that employees will have enough information (through trainings under paragraph (m) and discussions with the PLHCP) to allow them to decide whether to be evaluated at the CBD diagnostic center.21 OSHA is therefore amending paragraph (k)(7)(i) to require that the employer schedule an examination at a CBD diagnostic center within 30 days of receiving one of the types of documentation listed in paragraph (k)(7)(i)(A) or (B). And to maintain the intent of the 2017 final rule and the 2018 NPRM that evaluation at a CBD diagnostic center occurs in a timely manner, OSHA is adding that the evaluation must occur within a reasonable time. Requiring that the evaluation occur within a reasonable time ensures that the evaluation is done as soon as practicable based upon availability of openings at the CBD diagnostic center and the employee’s preferences. This revision better addresses OSHA’s original intent that 21 Under paragraph (k)(6)(i)(D), the employer is to ensure that the PLHCP explains the results of the medical examination to the employee, including results of tests conducted and medical conditions related to airborne beryllium exposure that require further evaluation or treatment. PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 42621 the employee be examined within a timely period, while providing employees and employers with maximum flexibility and convenience. Although OSHA understands DOD’s concerns about making a timely appointment, requiring that an appointment be made within a sevenday period might not give the employee enough time to consider his or her future obligations and possibly have discussions with family members to determine the best time period for the examination. OSHA believes that a 30day period to schedule an appointment for an examination is a reasonable time that allows the employee to consider his or her preferences for an examination date. In addition, a 30-day period offers more administrative convenience for employers because it is consistent with other triggers in the beryllium standard. The second change that OSHA proposed to paragraph (k)(7)(i) relates to the contents of the examination at the CBD diagnostic center. As discussed in more detail above, the former definition of CBD diagnostic center—which stated that the evaluation at the diagnostic center ‘‘must include’’ a pulmonary function test as outlined by American Thoracic Society criteria, bronchoalveolar lavage (BAL), and transbronchial biopsy—could have been misinterpreted to mean that the examining physician was required to perform each of these tests during every clinical evaluation at a CBD diagnostic center. That was not OSHA’s intent. Rather, the agency merely intended to ensure that any CBD diagnostic center has the capacity to perform any of these tests, which are commonly needed to diagnose CBD. Therefore, OSHA proposed revising the definition to clarify that the CBD diagnostic center must simply have the ability to perform each of these tests when deemed appropriate. To account for that proposed change to the definition of CBD diagnostic center and to ensure that the employer provides those tests if deemed appropriate by the examining physician at the CBD diagnostic center, OSHA proposed expanding paragraph (k)(7)(i) to require that the employer provide, at no cost to the employee and within a reasonable time after consultation with the CBD diagnostic center, any of the three tests mentioned above, if deemed appropriate by the examining physician at the CBD diagnostic center (83 FR at 63764). OSHA explained that the revision would also clarify the agency’s original intent that, instead of requiring all three tests to be conducted after referral to a CBD diagnostic center, the standard would allow the examining E:\FR\FM\14JYR3.SGM 14JYR3 42622 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations physician at the CBD diagnostic center the discretion to select one or more of those tests as appropriate (83 FR at 63764). Several stakeholders offered opinions on these proposed changes. For example, Materion agreed with the proposed changes to align paragraph (k)(7)(i) with the definition for CBD diagnostic center (Document ID 0038, p. 34). However, as discussed above in the Summary and Explanation of paragraph (b), Definitions, the ATS argued that ‘‘not requiring certain diagnostic tests (or an equivalent) could reduce the potential to diagnose CBD and determine disease severity’’ (Document ID 0021, p. 3). The ATS further asserted that ‘‘confirmed positive workers should have an assessment of lung function and gas exchange (such as a full set of pulmonary function tests with spirometry, lung volumes and diffusion capacity for carbon monoxide or other similar tests) and also chest imaging’’ (Document ID 0021, p. 3). NJH and the AOEC expressed similar concerns, commenting that lung function and imaging tests should be included as part of an evaluation at the CBD diagnostic center (Document ID 0022, p. 3; 0028, p. 2). After reviewing these comments and the remainder of the record on this issue, OSHA agrees that pulmonary function testing, BAL, and transbronchial biopsies are important diagnostic tools, but finds that the examining physician at the CBD diagnostic center is in the best position to determine which diagnostic tests are appropriate for particular workers. The agency believes that the modified definition of the term CBD diagnostic center, which requires the centers to have the capacity to perform these three tests, will serve to ensure that healthcare providers at the centers are aware of the importance of and are able to perform pulmonary function testing, BAL, and transbronchial biopsies. Nevertheless, OSHA understands that the proposed provision could be misinterpreted to mean that the employer does not have to make available additional tests that the examining physician deems appropriate for diagnosing or determining severity of CBD. That was never the agency’s intent. In fact, OSHA noted the potential for other tests, as deemed necessary by the CBD diagnostic center physician, several times in the preamble to the 2017 final rule (see, e.g., 82 FR at 2709, 2714). Similar to paragraph (k)(3)(ii)(G), which requires the employer to ensure that the employee is offered as part of the initial or periodic medical examination any test deemed appropriate by the PLHCP, OSHA VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 intends for the employer to ensure the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, including tests for diagnosing CBD, for determining its severity, and for monitoring progression of CBD following diagnosis. Allowing the physician at the CBD diagnostic center to order additional tests that are deemed appropriate is also consistent with most OSHA substance-specific standards, such as respirable crystalline silica (29 CFR 1910.1053) and chromium (VI) (29 CFR 1910.1026). To clarify the agency’s intent that the physician at the CBD diagnostic center has discretion to order appropriate tests, and to further respond to stakeholder concerns regarding the necessity of pulmonary function testing, BAL, and transbronchial biopsies, OSHA is adding a new sub-paragraph (k)(7)(ii), which focuses on the content of the examination. This new provision requires the employer to ensure that, as part of the evaluation, the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. OSHA intends for the new provision to make clear that the employer must provide additional tests, such as those noted by the ATS, NJH, and the AOEC, at no cost to the employee, if those tests are deemed necessary by the examining physician. The agency also believes that explicitly naming the three examples of tests that may be appropriate will further emphasize their importance to examining physicians at the CBD diagnostic centers. Consistent with OSHA’s original intent, those tests are required to be offered only if deemed appropriate by the physician at the CBD diagnostic center. For example, if lung volume and diffusion tests were performed according to the ATS criteria as part of the periodic medical examination under paragraph (k)(3) and the physician at the CBD diagnostic center found them to be of acceptable quality, those tests would not have to be repeated as part of a CBD evaluation. The addition of paragraph (k)(7)(ii) clarifies that the employer must, however, offer any test that the PLHCP deems appropriate. Consistent with previous health standards and the meaning of the identical phrase in paragraph (k)(3)(ii)(G), OSHA intends the phrase ‘‘deemed appropriate’’ to mean that additional tests requested by the physician must be both related to beryllium exposure and medically PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 necessary, based on the findings of the medical examination (see 82 FR at 2709; 81 FR 16286, 16826 (March 25, 2016)). New paragraph (k)(7)(ii) also addresses the possibility that a test that is deemed appropriate by the examining physician at the CBD diagnostic center might not be available at that center. Although OSHA’s intention has been to require any testing to be provided by the same CBD diagnostic center unless the employer and employee agree to a different CBD diagnostic center (see 83 FR at 63758), there may be cases where the CBD diagnostic center does not perform a type of test deemed appropriate by the examining physician. In such a case, OSHA wants to ensure that the employee can receive the appropriate test. Therefore, OSHA is also including in paragraph (k)(7)(ii) a requirement that if any of those tests deemed appropriate by the physician are not available at the CBD diagnostic center, they may be performed at another location that is mutually agreed upon by the employer and the employee. This other location does not need to be a CBD diagnostic center as long as it is able to perform tests according to requirements under paragraph (k). OSHA believes that such circumstances would be very rare because CBD diagnostic centers with the ability to perform pulmonary function testing (as outlined by the ATS criteria), BAL, and transbronchial biopsy are likely to also provide other medical tests related to CBD.22 As a result, the CBD diagnostic center in the vast majority of cases will be able to offer the additional testing deemed necessary by the examining physician. Given that this standard requires CBD diagnostic centers to be able to perform the three most common tests for diagnosing CBD, and CBD diagnostic centers typically would be able to offer any additional tests deemed necessary, OSHA expects that employees would rarely, if ever, need to travel to a second location. In summary, final paragraph (k)(7)(i) requires that the employer provide an evaluation at no cost to the employee at a CBD diagnostic center that is mutually agreed to by the employer and the employee. The evaluation must be scheduled within 30 days and must occur within a reasonable time of the employer receiving one of the types of documentation listed in paragraph (k)(7)(i)(A) or (B). Final paragraph (k)(7)(ii) requires the employer to ensure that, as part of the evaluation, the 22 Document ID OSHA–H005C–2006–0870–0637 provides information from the NJH website, which provides an overview of the types of tests performed. E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. Paragraph (k)(7)(ii) further provides that any test deemed appropriate by the examining physician that is not available at the CBD diagnostic center may be performed at another location that is agreed upon by the employer and employee. Such tests must be provided at no cost to the employee, whether performed at the CBD diagnostic center or at another location. As noted above, OSHA is also making a handful of minor, non-substantive numbering and reference edits to other provisions in paragraph (k)(7) to account for the addition of new paragraph (k)(7)(ii). Specifically, OSHA is renumbering current paragraphs (k)(7)(ii)–(v) as (k)(7)(iii), (iv), (v), and (vi), accordingly, and is adding a reference to new paragraph (k)(7)(ii) to the newly renumbered paragraph (k)(7)(vi). Paragraph (k)(7)(vi) provided that after an employee received the initial clinical evaluation at the CBD diagnostic center described in paragraph (k)(7)(i), the employee could choose to have any subsequent medical evaluations for which the employee is eligible under paragraph (k) performed at a CBD diagnostic center mutually agreed upon by the employer and employee and that the employer must provide such examinations to the employee at no cost. OSHA is revising the paragraph to add the reference to new paragraph (k)(7)(ii) because the description of the initial clinical evaluation is now split between paragraph (k)(7)(i) and (ii), rather than appearing solely in paragraph (k)(7)(i). OSHA does not expect that this clarifying change will have any substantive effect. Newly renumbered paragraph (k)(7)(vi) (previous paragraph (k)(7)(v)), therefore, continues to require that, after an employee has received the initial clinical evaluation at a CBD diagnostic center, the employee may choose to have any subsequent medical examinations for which the employee is eligible under paragraph (k) of this standard performed at a CBD diagnostic center mutually agreed upon by the employer and the employee, and the employer must provide such examinations at no cost to the employee. The addition of paragraph (k)(7)(ii) and consequential renumbering of current paragraphs (k)(7)(ii)–(v) as (k)(7)(iii), (iv), (v), and (vi) also affects two other cross-references in the VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 standard. Paragraph (l)(1) of the standard details the eligibility requirements for medical removal. Two of the criteria, those in (l)(1)(i)(B) and (l)(1)(ii) reference paragraphs (k)(7)(ii) and (k)(7)(iii), respectively. In this final rule, OSHA is updating those references to reflect the renumbering in paragraph (k)(7). Therefore, final paragraph (l)(1)(i)(B) references paragraph (k)(7)(iii) and paragraph (l)(1)(ii) references paragraph (k)(7)(iv). These edits, like those noted above in paragraph (k)(7)(vi), do not change the substantive meaning of the provisions. Communication of Hazards. Paragraph (m) of the beryllium standard for general industry (29 CFR 1910.1024(m)) sets forth the employer’s obligation to comply with the Hazard Communication standard (HCS) (29 CFR 1910.1200) relative to beryllium and to take additional steps to warn and train employees about the hazards of beryllium. Under the HCS, beryllium manufacturers and importers are required to evaluate the hazards of beryllium and prepare labels and safety data sheets (SDSs) and provide both documents to downstream users. Employers whose employees are exposed to beryllium in their workplace must develop a hazard communication program and ensure that employees are trained on the hazards of beryllium. These employers must also ensure that all containers of beryllium are labeled and that employees are provided access to the SDSs. In addition to the requirements under the HCS, paragraph (m)(1)(ii) of the beryllium standard for general industry specifies certain criteria that must be addressed in classifying the hazards of beryllium. Paragraph (m)(2) requires employers to provide and display warning signs with specified wording at each approach to a regulated area. Paragraph (m)(3) requires employers to label each container of clothing, equipment, and materials contaminated with beryllium using specified language. Finally, paragraph (m)(4) details employers’ duties to provide information and training to employees. In the 2018 NPRM, OSHA proposed three revisions to paragraph (m) of the beryllium standard for general industry (83 FR at 63759–60, 63769). The first change is related to paragraph (m)(3), which previously required employers to label ‘‘each bag and container’’ of clothing, equipment, and materials contaminated with beryllium. In the 2018 NPRM, OSHA proposed to replace the phrase ‘‘each bag and container’’ with the phrase ‘‘each immediate container,’’ to clarify that the employer need only label the immediate bag or PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 42623 container of beryllium-contaminated items and not larger containers holding the labeled bag or container. OSHA proposed this change to be consistent with the HCS, which requires only the primary or immediate container to be labeled (see 29 CFR 1910.1200(c)) (definition of ‘‘Label’’). OSHA explained that this proposed change would effectuate OSHA’s intent, expressed in the 2017 final rule, that the hazard communication requirements of the beryllium standard ‘‘be substantively as consistent as possible’’ with the HCS (82 FR at 2694, 2724). As such, OSHA preliminarily determined that the change would maintain safety and health protections for workers. Next, OSHA proposed two revisions to paragraph (m)(4), which addresses employee information and training. Paragraph (m)(4)(ii) requires the employer to ensure that each employee who is, or can reasonably be expected to be, exposed to airborne beryllium can demonstrate knowledge and understanding of certain specified topics. One of the topics specified in the previous standard was the health hazards associated with ‘‘airborne exposure to and contact with beryllium,’’ including the signs and symptoms of CBD (83 FR at 63759). OSHA proposed to modify this language by adding the word ‘‘dermal’’ immediately prior to ‘‘contact with beryllium.’’ OSHA explained that the change would clarify OSHA’s intent that employers must ensure that exposed employees can demonstrate knowledge and understanding of the health hazards caused by dermal contact with beryllium. OSHA also proposed to modify the language in paragraph (m)(4)(ii)(E), which required the employer to ensure that each employee who is, or can reasonably be expected to be, exposed to airborne beryllium can demonstrate knowledge and understanding of measures employees can take to protect themselves from ‘‘airborne exposure to and contact with beryllium,’’ including personal hygiene practices (83 FR at 63759). As with the previous revision, OSHA proposed adding the word ‘‘dermal’’ to ‘‘contact with beryllium’’ to clarify OSHA’s intent that employers must ensure exposed employees can demonstrate knowledge and understanding of measures employees can take to protect themselves from dermal contact with beryllium. Commenters did not object to any of the changes that OSHA proposed to paragraph (m). In fact, the only stakeholder that offered any comments on these revisions, Materion, generally supported the proposed changes, E:\FR\FM\14JYR3.SGM 14JYR3 42624 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations commenting that the changes will maintain safety and health protections for employees (Document ID 0038, p. 34). OSHA agrees with this assessment and finds that the proposed changes will clarify employers’ requirements for the communication of hazards of beryllium. Therefore, OSHA is finalizing the proposed changes to paragraph (m) in this final rule. Recordkeeping. Paragraph (n) of the beryllium standard for general industry requires employers to make and maintain air monitoring data, objective data, and medical surveillance records, and prepare and maintain training records. The 2017 final rule required employers’ air monitoring data ((n)(1)(ii)(F)), medical surveillance ((n)(3)(ii)(A)), and training ((n)(4)(i)) records to include employee Social Security Numbers (SSNs). In the 2018 NPRM, OSHA proposed to modify paragraph (n) to remove that requirement. This final rule adopts the proposed revisions, eliminating the requirement to include employee SSNs in these records. The issue of whether to include employee SSNs in records under OSHA’s standards for beryllium dates back to the 2015 beryllium NPRM. In that NPRM, OSHA proposed to require inclusion of employee SSNs in records related to air monitoring, medical surveillance, and training, similar to provisions in previous substancespecific health standards. Some stakeholders objected to the proposed requirement based on employee privacy and identity theft concerns (82 FR at 2730). OSHA recognized the validity of these concerns, but preliminarily concluded that due to the agency’s past consistent practice of requiring an employee’s SSN on records, any change to this requirement should be comprehensive and apply to all OSHA standards, not just the standards for beryllium (82 FR at 2730). In 2016, in its Standards Improvement Project-Phase IV (SIP–IV) proposed rule (81 FR 68504, 68526–28 (October 4, 2016)), OSHA proposed to delete the requirement that employers include employee SSNs in records required by the agency’s substance-specific standards. The 2017 final rule for beryllium included the SSN requirements, but, in the preamble, OSHA recognized that the SIP–IV rulemaking was ongoing and stated that it would revisit its decision to require employers to include SSNs in beryllium records in light of the SIP–IV rulemaking, if appropriate (82 FR at 2730). The SIP–IV rulemaking was still ongoing when OSHA published the VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 2018 NPRM. Consistent with the SIP–IV proposal, OSHA proposed to modify the beryllium standard for general industry by removing the requirement to include SSNs in the recordkeeping provisions in paragraphs (n)(1)(ii)(F) (air monitoring data), (n)(3)(ii)(A) (medical surveillance), and (n)(4)(i) (training). OSHA noted that these proposed revisions would address the privacy concerns raised in response to the 2015 NPRM, while maintaining safety and health protection for workers. Three commenters, Phylmar Regulatory Roundtable, DOD, and Materion, expressed general support for the proposed changes to the recordkeeping provisions (Document ID 0020, p. 1; 0029, p. 1; 0038, p. 34), and no commenters expressed opposition to OSHA’s proposal to remove the requirement to include each employee’s SSN in these three sets of records. After reviewing these comments, OSHA is finalizing the proposed deletion of the SSN requirements in this final rule. This change is also consistent with the agency’s decision in the SIP–IV rulemaking, which was finalized in the months since the publication of the 2018 NPRM (84 FR 21416 (May 14, 2019)). The SIP–IV final rule deletes the requirement to include employee SSNs in records employers must maintain under the substance-specific standards that existed at the time of OSHA’s 2016 SIP–IV proposal (see 84 FR at 21439– 40).23 The deletion of the SSN requirements in the beryllium general industry standard will, thus, bring this standard into line with the majority of OSHA’s other substance-specific standards. OSHA received one other comment related to SSNs in this rulemaking. A private citizen agreed that the proposed changes were ‘‘necessary and appropriate,’’ but expressed concerns that there is no additional requirement to remove SSNs from existing records and that allowing employers the option to continue using SSNs will not effectively protect employee privacy (Document ID 0017). OSHA understands the private citizen’s concerns. The SIP– IV NPRM did not propose to require employers to remove employee SSNs from existing records or to prohibit employers from using employee SSNs in their records. The agency did, however, request comment on whether employers should be required to use an alternative identification system rather than SSNs, 23 The beryllium standard for general industry, which was not published until 2017, was not listed in the SIP–IV NPRM and, therefore, the SIP–IV final rule did not affect the 2017 final rule’s requirement to include employee SSNs in records. PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 or to remove SSNs from existing records (81 FR at 68528). As discussed in the preamble to the SIP–IV final rule, the comments that OSHA received in response to the SIP– IV NPRM advocated against requiring employers to use an alternative type of employee identifier or to remove SSNs from existing records (84 FR at 21440). For example, the Construction Industry Safety Coalition (CISC) supported OSHA’s statements in the SIP–IV NPRM that employers would not be required to delete employee SSNs from existing records, would not be required to use an alternative employee identifier on existing records, and would still be permitted to use SSNs if they wish to do so. CISC stated that limiting employers’ flexibility to come up with an identification system that works best for their situations would create an undue compliance burden (84 FR at 21440). After considering the comments, OSHA decided in the SIP–IV final rule to proceed with removing the SSN collection requirements from previously published standards, but not to require employers to delete employee SSNs from existing records or to use an alternative employee identifier. In order to maintain consistency among OSHA recordkeeping requirements for substance-specific standards, the agency has decided not to require employers to delete employee SSNs from existing records relating to beryllium or to use an alternative employee identifier. The final rule allows employers the option to still use SSNs or to use some other alternative employee identifier system, as explained in the SIP–IV final rule. This will give employers the flexibility to choose the best option for their particular circumstance and will avoid unnecessarily increasing employers’ compliance burdens. Additional Comments. The scope of the 2018 proposal was limited to the specific revisions and clarifications to the beryllium standard identified in the NPRM. The NPRM did not invite comment on all of the agency’s underlying determinations from the 2017 beryllium final rule. As such, OSHA determined that some comments the agency received in response the 2018 NPRM pertained to subjects outside the scope of the proposal. OSHA briefly addresses these comments below. Two commenters addressed issues related to OSHA’s significant risk finding from the 2017 final rule. One commenter focused on the risk of health effects related to beryllium exposure in the aluminum smelting industry and the methodologies underlying OSHA’s risk E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations assessment of occupational exposure to beryllium (Document ID 0026, Attachment 2, pp. 9–16). Another took issue with OSHA’s risk determination pertaining to dermal contact with beryllium and argued that the current standard did not distinguish between the chemical forms of beryllium and its varying risk of injury from dermal contact (Document ID 0038, pp. 13–15). OSHA addressed these concerns about risk in the 2017 final rule and determined that the beryllium standard addresses a significant risk (see 82 FR at 2545–52). The changes and clarifications proposed by the 2018 NPRM do not affect that determination. Another commenter took issue with the revised PEL for beryllium set in the 2017 final rule, suggesting that a lower PEL was needed to protect workers from CBD and lung cancer (Document ID 0028, p. 1). Although OSHA determined in the 2017 final rule that there remains a significant risk of material impairment of health at the 0.2 mg/m3 PEL and the 2.0 ug/m3 STEL, the agency further determined that it could not demonstrate that a lower PEL would be technologically feasible (82 FR at 2552). Again, OSHA did not propose to revisit this finding in this rulemaking. List of Subjects for 29 CFR Part 1910 Beryllium, General industry, Health, Occupational safety and health. Authority Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, directed the preparation of this document. The agency issues the sections under the following authorities: 29 U.S.C. 653, 655, 657; Secretary of Labor’s Order 1– 2012 (77 FR 3912); 29 CFR part 1911; and 5 U.S.C. 553, as applicable. Signed at Washington, DC, on May 13, 2020. Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health. Amendments to Standards For the reasons set forth in the preamble, chapter XVII of title 29, part 1910 is amended to read as follows: PART 1910—OCCUPATIONAL SAFETY AND HEALTH STANDARDS 1. The authority section for part 1910, subpart Z, continues to read as follows: ■ Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor’s Order No. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 5–2007 (72 FR 31160), 4–2010 (75 FR 55355), or 1–2012 (77 FR 3912); and 29 CFR part 1911. All of subpart Z issued under 29 U.S.C. 655(b), except those substances that have exposure limits listed in Tables Z–1, Z–2, and Z–3 of § 1910.1000. The latter were issued under 29 U.S.C. 655(a). Section 1910.1000, Tables Z–1, Z–2 and Z– 3 also issued under 5 U.S.C. 553, but not under 29 CFR part 1911 except for the arsenic (organic compounds), benzene, cotton dust, and chromium (VI) listings. Section 1910.1001 also issued under 40 U.S.C. 3704 and 5 U.S.C. 553. Section 1910.1002 also issued under 5 U.S.C. 553, but not under 29 U.S.C. 655 or 29 CFR part 1911. Sections 1910.1018, 1910.1029, and 1910.1200 also issued under 29 U.S.C. 653. Section 1910.1030 also issued under Public Law 106–430, 114 Stat. 1901. Section 1910.1201 also issued under 49 U.S.C. 1801–1819 and 5 U.S.C. 553. 2. Amend § 1910.1024 by: A. Revising the definitions for ‘‘Beryllium sensitization,’’ ‘‘Beryllium work area,’’ ‘‘CBD diagnostic center,’’ ‘‘Chronic beryllium disease (CBD),’’ and ‘‘Dermal contact with beryllium’’. ■ B. Revise paragraphs (f)(1)(i)(D), (f)(ii)(B), (h)(2)(i), (h)(3)(iii), (i)(1) introductory text, (i)(2), (i)(4)(ii), (j)(3), (k)(2)(i)(B), (k)(2)(iii) and (iv), (k)(7)(i) introductory text, (k)(7)(ii) through (vi), (l)(1)(i)(B), (l)(1)(ii), (m)(3), (m)(4)(ii)(A), (m)(4)(ii)(E), (n)(1)(ii)(F), (n)(3)(ii)(A), (n)(4)(i), and Appendix A. The revisions read as follows: ■ ■ § 1910.1024 Beryllium. * * * * * (b) * * * Beryllium sensitization means a response in the immune system of a specific individual who has been exposed to beryllium. There are no associated physical or clinical symptoms and no illness or disability with beryllium sensitization alone, but the response that occurs through beryllium sensitization can enable the immune system to recognize and react to beryllium. While not every berylliumsensitized person will develop chronic beryllium disease (CBD), beryllium sensitization is essential for development of CBD. Beryllium work area means any work area where materials that contain at least 0.1 percent beryllium by weight are processed either: (1) During any of the operations listed in Appendix A of this standard; or (2) Where employees are, or can reasonably be expected to be, exposed to airborne beryllium at or above the action level. CBD diagnostic center means a medical diagnostic center that has a PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 42625 pulmonologist or pulmonary specialist on staff and on-site facilities to perform a clinical evaluation for the presence of chronic beryllium disease (CBD). The CBD diagnostic center must have the capacity to perform pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. The CBD diagnostic center must also have the capacity to transfer BAL samples to a laboratory for appropriate diagnostic testing within 24 hours. The pulmonologist or pulmonary specialist must be able to interpret the biopsy pathology and the BAL diagnostic test results. Chronic beryllium disease (CBD) means a chronic granulomatous lung disease caused by inhalation of airborne beryllium by an individual who is beryllium sensitized. Confirmed positive means the person tested has had two abnormal BeLPT test results, an abnormal and a borderline test result, or three borderline test results, obtained from tests conducted within a three-year period. It also means the result of a more reliable and accurate test indicating a person has been identified as having beryllium sensitization. * * * * * Dermal contact with beryllium means skin exposure to: (1) Soluble beryllium compounds containing beryllium in concentrations greater than or equal to 0.1 percent by weight; (2) Solutions containing beryllium in concentrations greater than or equal to 0.1 percent by weight; or (3) Visible dust, fumes, or mists containing beryllium in concentrations greater than or equal to 0.1 percent by weight. The handling of beryllium materials in non-particulate solid form that are free from visible dust containing beryllium in concentrations greater than or equal to 0.1 percent by weight is not considered dermal contact under the standard. * * * * * (f) * * * (1) * * * (i) * * * (D) Procedures for minimizing crosscontamination, including the transfer of beryllium between surfaces, equipment, clothing, materials, and articles within beryllium work areas; * * * * * (ii) * * * (B) The employer is notified that an employee is eligible for medical removal in accordance with paragraph (l)(1) of this standard, referred for evaluation at E:\FR\FM\14JYR3.SGM 14JYR3 42626 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations a CBD diagnostic center, or shows signs or symptoms associated with exposure to beryllium; or * * * * * (h) * * * (2) * * * (i) The employer must ensure that each employee removes all berylliumcontaminated personal protective clothing and equipment at the end of the work shift, at the completion of all tasks involving beryllium, or when personal protective clothing or equipment becomes visibly contaminated with beryllium, whichever comes first. * * * * * (3) * * * (iii) The employer must inform in writing the persons or the business entities who launder, clean, or repair the personal protective clothing or equipment required by this standard of the potentially harmful effects of exposure to beryllium and that the personal protective clothing and equipment must be handled in accordance with this standard. * * * * * (i) * * * (1) General. For each employee working in a beryllium work area or who can reasonably be expected to have dermal contact with beryllium, the employer must: * * * * * (2) Change rooms. In addition to the requirements of paragraph (i)(1)(i) of this standard, the employer must provide employees who are required to use personal protective clothing or equipment under paragraph (h)(1)(ii) of this standard with a designated change room in accordance with this standard and the Sanitation standard (§ 1910.141) where employees are required to remove their personal clothing. * * * * * (4) * * * (ii) No employees enter any eating or drinking area with berylliumcontaminated personal protective clothing or equipment unless, prior to entry, it is cleaned, as necessary, to be as free as practicable of beryllium by methods that do not disperse beryllium into the air or onto an employee’s body; and * * * * * (j) * * * (3) Disposal, recycling, and reuse. (i) Except for intra-plant transfers, when the employer transfers materials that contain at least 0.1 percent beryllium by weight or are contaminated with beryllium for disposal, recycling, or reuse, the employer must label the VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 materials in accordance with paragraph (m)(3) of this standard; (ii) Except for intra-plant transfers, materials designated for disposal that contain at least 0.1 percent beryllium by weight or are contaminated with beryllium must be cleaned to be as free as practicable of beryllium or placed in enclosures that prevent the release of beryllium-containing particulate or solutions under normal conditions of use, storage, or transport, such as bags or containers; and (iii) Except for intra-plant transfers, materials designated for recycling or reuse that contain at least 0.1 percent beryllium by weight or are contaminated with beryllium must be cleaned to be as free as practicable of beryllium or placed in enclosures that prevent the release of berylliumcontaining particulate or solutions under normal conditions of use, storage, or transport, such as bags or containers. * * * * * (k) * * * (2) * * * (i) * * * (B) An employee meets the criteria of paragraph (k)(1)(i)(B) of this standard. * * * * * (iii) At the termination of employment for each employee who meets any of the criteria of paragraph (k)(1)(i) of this standard at the time the employee’s employment terminates, unless an examination has been provided in accordance with this standard during the six months prior to the date of termination. Each employee who meets the criteria of paragraph (k)(1)(i)(C) of this standard and who has not received an examination since exposure to beryllium during the emergency must be provided an examination at the time the employee’s employment terminates. (iv) For an employee who meets the criteria of paragraph (k)(1)(i)(C) of this standard: (A) If that employee has not received a medical examination within the previous two years pursuant to paragraph (k)(1)(i) of this standard, then within 30 days after the employee meets the criteria of paragraph (k)(1)(i)(C) of this standard; or (B) If that employee has received a medical examination within the previous two years pursuant to paragraph (k)(1)(i) of this standard, then at least one year but no more than two years after the employee meets the criteria of paragraph (k)(1)(i)(C) of this standard. * * * * * (7) * * * (i) The employer must provide an evaluation at no cost to the employee at PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 a CBD diagnostic center that is mutually agreed upon by the employer and the employee. The evaluation at the CBD diagnostic center must be scheduled within 30 days, and must occur within a reasonable time, of: * * * * * (ii) The employer must ensure that, as part of the evaluation, the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. If any of the tests deemed appropriate by the examining physician are not available at the CBD diagnostic center, they may be performed at another location that is mutually agreed upon by the employer and the employee. (iii) The employer must ensure that the employee receives a written medical report from the CBD diagnostic center that contains all the information required in paragraph (k)(5)(i), (ii), (iv), and (v) of this standard and that the PLHCP explains the results of the examination to the employee within 30 days of the examination. (iv) The employer must obtain a written medical opinion from the CBD diagnostic center within 30 days of the medical examination. The written medical opinion must contain only the information in paragraph (k)(6)(i), as applicable, unless the employee provides written authorization to release additional information. If the employee provides written authorization, the written opinion must also contain the information from paragraphs (k)(6)(ii), (iv), and (v), if applicable. (v) The employer must ensure that each employee receives a copy of the written medical opinion from the CBD diagnostic center described in paragraph (k)(7) of this standard within 30 days of any medical examination performed for that employee. (vi) After an employee has received the initial clinical evaluation at a CBD diagnostic center described in paragraphs (k)(7)(i) and (ii) of this standard, the employee may choose to have any subsequent medical examinations for which the employee is eligible under paragraph (k) of this standard performed at a CBD diagnostic center mutually agreed upon by the employer and the employee, and the employer must provide such examinations at no cost to the employee. * * * * * (l) * * * (1) * * * E:\FR\FM\14JYR3.SGM 14JYR3 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations (i) * * * (B) A written medical report recommending removal from airborne exposure to beryllium in accordance with paragraph (k)(5)(v) or (k)(7)(iii) of this standard; or (ii) The employer receives a written medical opinion recommending removal from airborne exposure to beryllium in accordance with paragraph (k)(6)(v) or (k)(7)(iv) of this standard. * * * * * (m) * * * (3) Warning labels. Consistent with the HCS (§ 1910.1200), the employer must label each immediate container of clothing, equipment, and materials contaminated with beryllium, and must, at a minimum, include the following on the label: DANGER CONTAINS BERYLLIUM MAY CAUSE CANCER CAUSES DAMAGE TO LUNGS AVOID CREATING DUST DO NOT GET ON SKIN (4) * * * (ii) * * * (A) The health hazards associated with airborne exposure to and dermal contact with beryllium, including the signs and symptoms of CBD; * * * * * (E) Measures employees can take to protect themselves from airborne exposure to and dermal contact with beryllium, including personal hygiene practices; * * * * * (n) * * * (1) * * * (ii) * * * (F) The name and job classification of each employee represented by the monitoring, indicating which employees were actually monitored. * * * * * (3) * * * (ii) * * * (A) Name and job classification; * * * * * (4) * * * (i) At the completion of any training required by this standard, the employer must prepare a record that indicates the name and job classification of each 42627 employee trained, the date the training was completed, and the topic of the training. * * * * * (p) Appendix. Table A.1 in this appendix sets forth the operations that, where performed under the circumstances described in the column heading above the particular operations, trigger the requirement for a beryllium work area. Appendix A to § 1910.1024— Operations for Establishing Beryllium Work Areas Paragraph (b) of this standard defines a beryllium work area as any work area where materials that contain at least 0.1 percent beryllium by weight are processed (1) during any of the operations listed in Appendix A of this standard, or (2) where employees are, or can reasonably be expected to be, exposed to airborne beryllium at or above the action level. Table A.1 in this appendix sets forth the operations that, where performed under the circumstances described in the column heading above the particular operations, trigger the requirement for a beryllium work area. TABLE A.1—OPERATIONS FOR ESTABLISHING BERYLLIUM WORK AREAS WHERE PROCESSING MATERIALS CONTAINING AT LEAST 0.1 PERCENT BERYLLIUM BY WEIGHT Beryllium metal alloy operations (generally <10% beryllium by weight) Abrasive Blasting. Abrasive Processing. Abrasive Sawing. Annealing. Bright Cleaning. Brushing. Buffing. Burnishing. Casting. Centerless Grinding. Chemical Cleaning. Chemical Etching. Chemical Milling. Dross Handling. Deburring (grinding). Electrical Chemical Machining (ECM). Electrical Discharge Machining (EDM). Extrusion. Forging. Grinding. Heat Treating (in air). High Speed Machining (>10,000 rpm). Hot Rolling. Lapping. Laser Cutting. Laser Machining. Laser Scribing. Laser Marking. Melting. Photo-Etching. Pickling. Point and Chamfer. Polishing. Torch Cutting (i.e., oxy-acetylene). Tumbling. Water-jet Cutting. Welding. VerDate Sep<11>2014 19:19 Jul 13, 2020 Jkt 250001 Beryllium composite operations (generally >10% beryllium by weight) and beryllium metal operations Abrasive Blasting. Abrasive Processing. Abrasive Sawing. Annealing. Atomizing. Attritioning. Blanking. Bonding. Boring. Breaking. Bright Cleaning. Broaching. Brushing. Buffing. Burnishing. Casting. Centerless Grinding. Chemical Cleaning. Chemical Etching Chemical Milling. CNC Machining Cold Isostatic Pressing. Cold Pilger. Crushing. Cutting. Deburring. Dicing. Drawing. Drilling. Dross Handling. Electrical Chemical Machining (ECM). Electrical Discharge Machining (EDM). Extrusion. Filing by Hand. Forging. Grinding. Heading. PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 Beryllium oxide operations Abrasive Blasting. Abrasive Processing. Abrasive Sawing. Boring. Brazing (>1,100 °C). Broaching with green ceramic. Brushing. Buffing. Centerless grinding. Chemical Cleaning. Chemical Etching. CNC Machining. Cold Isostatic Pressing (CIP). Crushing. Cutting. Deburring (grinding). Deburring (non-grinding). Destructive Testing. Dicing. Drilling. Dry/wet Tumbling. Extrusion. Filing by Hand. Firing of Green Ceramic. Firing of Refractory Metallization (>1,100 °C). Grinding. Honing. Hot Isostatic Pressing (HIP). Lapping. Laser Cutting. Laser Machining. Laser Scribing. Laser Marking. Machining. Milling. Piercing. Mixing. E:\FR\FM\14JYR3.SGM 14JYR3 42628 Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules and Regulations TABLE A.1—OPERATIONS FOR ESTABLISHING BERYLLIUM WORK AREAS WHERE PROCESSING MATERIALS CONTAINING AT LEAST 0.1 PERCENT BERYLLIUM BY WEIGHT—Continued Beryllium metal alloy operations (generally <10% beryllium by weight) Sanding. Slab Milling. Beryllium composite operations (generally >10% beryllium by weight) and beryllium metal operations Heat Treating. Honing. Hot Isostatic Pressing (HIP). Lapping. Laser Cutting. Laser Machining. Laser Scribing. Laser Marking. Machining. Melting. Milling. Mixing. Photo-Etching. Pickling. Piercing. Pilger. Plasma Spray. Point and Chamfer. Polishing. Powder Handling. Powder Pressing. Pressing. Reaming. Roll Bonding. Rolling. Sanding. Sawing (tooth blade). Shearing. Sizing. Skiving. Slitting. Snapping. Sputtering. Stamping. Spray Drying. Tapping. Tensile Testing. Torch Cutting (i.e., oxy acetylene). Trepanning. Tumbling Turning. Vapor Deposition. Water-Jet Cutting. Welding. Beryllium oxide operations Plasma Spray. Polishing. Powder Handling. Powder Pressing. Reaming. Sanding. Sectioning. Shearing. Sintering of Green Ceramic. Sintering of Refractory Metallization (>1,100 °C). Snapping. Spray Drying. Tape Casting. Turning. Water Jet Cutting. [FR Doc. 2020–10678 Filed 7–13–20; 8:45 am] BILLING CODE P VerDate Sep<11>2014 19:02 Jul 13, 2020 Jkt 250001 PO 00000 Frm 00048 Fmt 4701 Sfmt 9990 E:\FR\FM\14JYR3.SGM 14JYR3

Agencies

[Federal Register Volume 85, Number 135 (Tuesday, July 14, 2020)]
[Rules and Regulations]
[Pages 42582-42628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10678]



[[Page 42581]]

Vol. 85

Tuesday,

No. 135

July 14, 2020

Part III





Department of Labor





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Occupational Safety and Health Administration





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29 CFR Part 1910





Revising the Beryllium Standard for General Industry; Final Rule

Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules 
and Regulations

[[Page 42582]]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2018-0003]
RIN 1218-AD20


Revising the Beryllium Standard for General Industry

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

ACTION: Final rule.

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SUMMARY: OSHA is amending its existing general industry standard for 
occupational exposure to beryllium and beryllium compounds to clarify 
certain provisions and simplify or improve compliance. The revisions in 
this final rule are designed to maintain or enhance worker protections 
overall by ensuring that the rule is well understood and compliance is 
more straightforward.

DATES: This final rule becomes effective on September 14, 2020.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), OSHA designates 
Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety 
and Health, to receive petitions for review of the final rule. Contact 
the 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.

FOR FURTHER INFORMATION CONTACT: 
    Press inquiries: Mr. Frank Meilinger, OSHA Office of 
Communications, Occupational Safety and Health Administration; 
telephone: (202) 693-1999; email: [email protected].
    General information and technical inquiries: Ms. Maureen Ruskin, 
Directorate of Standards and Guidance, Occupational Safety and Health 
Administration; telephone: (202) 693-1950; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Events Leading to the Final Rule
III. Legal Considerations
IV. Final Economic Analysis and Regulatory Flexibility Act 
Certification (FEA)
V. Office of Management and Budget (OMB) Review Under the Paperwork 
Reduction Act of 1995
VI. Federalism
VII. State Plans
VIII. Unfunded Mandates Reform Act
IX. Consultation and Coordination With Indian Tribal Governments
X. Environmental Impacts
XI. Summary and Explanation of the Final Rule
List of Subjects for 29 CFR Part 1910
Authority

Citation Method

    In the docket for this rulemaking found at https://www.regulations.gov, every submission was assigned a document 
identification (ID) number that consists of the docket number (OSHA-
2018-0003) followed by an additional four-digit number. For example, 
the document ID number for the proposed rule is OSHA-2018-0003-0016. 
Some document ID numbers include one or more attachments (see, e.g., 
Document ID OSHA-2018-0003-0026).
    When citing exhibits in the OSHA-2018-0003 docket in this preamble, 
OSHA includes the term ``Document ID'' followed by the last four digits 
of the document number; the attachment number or other attachment 
identifier, if necessary for clarity; and page numbers (designated 
``p.'' or ``pp.''). In a citation that contains two or more document ID 
numbers, the document ID numbers are separated by semi-colons. For 
example, a citation referring to National Jewish Health's comments and 
the first attachment to Materion Brush, Inc.'s comments would be 
indicated as follows: (Document ID 0022, pp. X-X; 0038-A1, p. X).
    Occasionally this preamble refers to documents located in the 
rulemaking dockets that were used for previous beryllium rulemaking 
activities, including the 2017 final rule. When citing exhibits in 
other dockets, OSHA includes the term ``Document ID'' followed by the 
full document number. For example, this preamble cites a publication by 
Armstrong et al. (2014), titled ``Migration of beryllium via multiple 
exposure pathways among work processes in four different facilities,'' 
designated Document ID OSHA-H005C-2006-0870-0502.
    The exhibits in the docket (and the other beryllium-rulemaking 
dockets cited in this preamble), including public comments, supporting 
materials, meeting transcripts, and other documents, are listed on 
https://www.regulations.gov. All exhibits are listed in the docket index 
on https://www.regulations.gov, but some exhibits (e.g., copyrighted 
material) are not available to read or download from that website. All 
materials in the docket are available for inspection at the OSHA Docket 
Office, Room N-3508, U.S. Department of Labor, 200 Constitution Avenue 
NW, Washington, DC 20210; telephone (202) 693-2350.

I. Executive Summary

    On January 9, 2017, OSHA published a final rule on Occupational 
Exposure to Beryllium and Beryllium Compounds (82 FR 2470). This rule 
created health standards for beryllium exposure in the general industry 
(29 CFR 1910.1024), construction (29 CFR 1926.1124), and shipyards (29 
CFR 1915.1024) sectors. On December 11, 2018, OSHA published a Notice 
of Proposed Rulemaking (NPRM) in which the agency proposed various 
amendments to the beryllium standard for general industry (83 FR 
63746). With the proposed revisions, OSHA sought to clarify certain 
provisions and simplify or improve compliance with the beryllium 
standard for general industry. In this final rule, OSHA is finalizing 
the majority of the changes proposed in the NPRM, with some revisions 
intended to address concerns raised by stakeholders during the comment 
period. OSHA believes that these changes to the standard will maintain 
safety and health protections for workers and will further enhance 
worker protections by ensuring that the standard is well-understood.
    The changes to the final standard for general industry are fully 
discussed in Section XI, Summary and Explanation of the Final Rule. 
Broadly, OSHA proposed to add one definition and modify five existing 
terms in paragraph (b), Definitions; to amend paragraph (f), Methods of 
compliance; paragraph (h), Personal protective clothing and equipment; 
paragraph (i), Hygiene areas and practices; paragraph (j), 
Housekeeping; paragraph (k), Medical surveillance; paragraph (m), 
Communication of hazards; and paragraph (n), Recordkeeping; and to 
replace the 2017 final standard's Appendix A with a new appendix 
designed to supplement the proposed definition of beryllium work area.
    OSHA is finalizing these provisions as proposed, with the following 
exceptions. First, OSHA is revising the definition of confirmed 
positive to state that the findings of two abnormal, one abnormal and 
one borderline, or three borderline results need to occur from 
beryllium lymphocyte proliferation tests (BeLPTs) conducted within a 
three-year period. This differs from the definition proposed in the 
2018 NPRM, which would have required that any combination of test 
results specified in the definition must be obtained within the 30-day 
follow-up test period required after a first abnormal or borderline 
BeLPT test result. Second, OSHA is modifying the proposed paragraph 
(j)(3), which requires employers to take certain actions when

[[Page 42583]]

transferring materials that contain at least 0.1 percent beryllium by 
weight or that are contaminated with beryllium outside a plant for the 
purpose of disposal, recycling, or reuse, to clarify that only 
transfers outside of a plant, including between facilities owned by the 
same employer, are subject to the labeling requirements of paragraph 
(m)(3).
    Third, in paragraphs (k)(2)(iii) and (iv), OSHA is modifying the 
proposed provisions pertaining to an employer's obligation to offer a 
medical examination after an employee is exposed to beryllium in an 
emergency. Fourth, OSHA is amending proposed paragraph (k)(7)(i) to 
require that an examination at a chronic beryllium disease (CBD) 
diagnostic center be scheduled within 30 days of the employer receiving 
certain types of documentation, listed in paragraph (k)(7)(i)(A) and 
(B), that trigger evaluation for CBD. OSHA is further revising proposed 
paragraph (k)(7) by adding a new provision, paragraph (k)(7)(ii), which 
clarifies that, as part of the evaluation at the CBD diagnostic center, 
the employer must ensure that the employee is offered any tests deemed 
appropriate by the examining physician at the CBD diagnostic center and 
to state that if any tests deemed appropriate by the physician are not 
available at the CBD diagnostic center, they may be performed at 
another location that is mutually agreed upon by the employer and the 
employee. For a full explanation of comments received and OSHA's 
reasoning for these revisions, see Section XI, Summary and Explanation 
of the Final Rule.
    OSHA's examination of the technological and economic feasibility of 
this final rule is presented in the Final Economic Analysis and 
Regulatory Flexibility Analysis (FEA), in Section IV of this preamble. 
As explained there, OSHA finds that none of the revisions would impose 
any new employer obligations or increase the overall cost of 
compliance, while some of the revisions in this final rule will clarify 
and simplify compliance in such a way that results in cost savings. 
OSHA also finds that none of the revisions would require any new 
controls or other technology. OSHA therefore concludes that the final 
rule is both economically and technologically feasible.
    Further, this final rule is considered to be an Executive Order 
(E.O.) 13771 deregulatory action. Pursuant to the Congressional Review 
Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory 
Affairs designated this rule not a ``major rule,'' as defined by 5 
U.S.C. 804(2).

II. Events Leading to the Final Rule

    On January 9, 2017, OSHA published the final rule Occupational 
Exposure to Beryllium and Beryllium Compounds (2017 final rule) in the 
Federal Register (82 FR 2470).\1\ Therein, OSHA concluded that 
employees exposed to beryllium and beryllium compounds at the preceding 
permissible exposure limits (PELs) were at significant risk of material 
impairment of health, specifically chronic beryllium disease (CBD) and 
lung cancer. The agency further determined that limiting employee 
exposure to an 8-hour time-weighted average (TWA) PEL of 0.2 [micro]g/
m\3\ would reduce this significant risk to the maximum extent feasible. 
Therefore, the 2017 final rule adopted a TWA PEL of 0.2 [micro]g/m\3\. 
In addition to the revised PEL, the 2017 final rule established a new 
short-term exposure limit (STEL) of 2.0 [micro]g/m\3\ over a 15-minute 
sampling period and an action level of 0.1 [micro]g/m\3\ as an 8-hour 
TWA, along with a number of ancillary provisions intended to provide 
additional protections to employees. The ancillary provisions included 
requirements for exposure assessment, methods for controlling exposure, 
respiratory protection, personal protective clothing and equipment, 
housekeeping, medical surveillance, hazard communication, and 
recordkeeping that are similar to those found in other OSHA health 
standards.
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    \1\ In the 2017 final rule, OSHA issued three separate beryllium 
standards--general industry, shipyards, and construction. This final 
rule amends only the general industry standard. Therefore, neither 
this Events Leading to the Final Rule section nor the remainder of 
the preamble will include information about the other two standards.
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    The 2017 final rule went into effect on May 20, 2017, and OSHA 
began enforcing the PEL and the general industry standard's provisions 
for exposure assessment, respiratory protection, medical surveillance, 
and medical removal on May 11, 2018. See Updated Interim Enforcement 
Guidance for the Beryllium Standards, available at https://www.osha.gov/laws-regs/standardinterpretations/2018-12-11. The majority 
of the general industry standard's other provisions became enforceable 
on December 12, 2018, with compliance obligations for showers and 
change rooms following on March 11, 2019 (83 FR 39351). OSHA began 
enforcing the general industry requirements for engineering controls on 
March 10, 2020.
    In response to concerns raised by stakeholders following the 
publication of the 2017 final rule, OSHA published a direct final rule 
(DFR) in the Federal Register on May 7, 2018 (83 FR 19936), amending 
the text of the beryllium standard for general industry to clarify 
OSHA's intent with respect to certain terms in the standard, including 
the definition of beryllium work area (BWA), the definition of 
emergency, and the meaning of the terms dermal contact and beryllium 
contamination (see 83 FR at 19938). The DFR also clarified OSHA's 
intent with respect to provisions for disposal and recycling and with 
respect to provisions that the agency intended to apply only where skin 
can be exposed to materials containing at least 0.1% beryllium by 
weight (83 FR at 19938). Because the agency did not receive any 
significant adverse comments, OSHA published a Federal Register notice 
confirming the effective date of the DFR as July 6, 2018, and 
withdrawing the companion NPRM (83 FR 31045 (July 3, 2018)).
    On December 11, 2018, OSHA published an NPRM in the Federal 
Register (83 FR 63746) in which the agency proposed to further amend 
the beryllium standard for general industry.\2\ The proposal sought to 
clarify certain provisions-with proposed changes designed to facilitate 
application of the standard consistent with the intent of the 2017 
final rule-and to simplify or improve compliance, preventing costs that 
may flow from misinterpretation or misapplication of the standard. OSHA 
requested public comment on the proposed changes and provided 
stakeholders 60 days to submit comments. OSHA received 22 comments 
before the comment period closed on February 11, 2019.
---------------------------------------------------------------------------

    \2\ OSHA stated in the NPRM that the agency believed that the 
standard as modified by the proposal would provide equivalent 
protection to the existing standard; and OSHA would therefore accept 
compliance with the standard, as modified by the proposal, as 
compliance with the standard while the rulemaking was pending.
---------------------------------------------------------------------------

III. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970 
(``the OSH Act'' or ``the Act''), 29 U.S.C. 651 et seq., is to assure 
so far as possible every working man and woman in the Nation safe and 
healthful working conditions and to preserve our human resources. 29 
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary 
of Labor (``the Secretary'') to promulgate occupational safety and 
health standards pursuant to notice and comment rulemaking. See 29 
U.S.C. 655(b). An occupational safety or health standard is a standard 
which requires conditions, or the adoption or use of one or more 
practices, means, methods, operations, or processes, reasonably 
necessary or appropriate to provide safe

[[Page 42584]]

or healthful employment and places of employment. 29 U.S.C. 652(8).
    The Act also authorizes the Secretary to ``modify'' or ``revoke'' 
any occupational safety or health standard, 29 U.S.C. 655(b), and under 
the Administrative Procedure Act, regulatory agencies generally may 
revise their rules if the changes are supported by a reasoned analysis, 
see Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 
U.S. 29, 42 (1983). ``While the removal of a regulation may not entail 
the monetary expenditures and other costs of enacting a new standard, 
and accordingly, it may be easier for an agency to justify a 
deregulatory action, the direction in which an agency chooses to move 
does not alter the standard of judicial review established by law.'' 
Id.
    The Act provides that in promulgating health standards dealing with 
toxic materials or harmful physical agents, such as the January 9, 
2017, final rule regulating occupational exposure to beryllium, the 
Secretary must set the standard that most adequately assures, to the 
extent feasible and on the basis of the best available evidence, that 
no employee will suffer material impairment of health or functional 
capacity even if such employee has regular exposure to the hazard dealt 
with by such standard for the period of his working life. 29 U.S.C. 
655(b)(5).
    The Supreme Court has held that before the Secretary can promulgate 
any permanent health or safety standard, he must make a threshold 
finding that significant risk is present and that such risk can be 
eliminated or lessened by a change in practices. See Indus. Union 
Dep't, AFL-CIO v. Am. Petroleum Inst. (``Benzene''), 448 U.S. 607, 641-
42 (1980) (plurality opinion). OSHA need not make additional findings 
on risk for this revised rule because OSHA previously determined that 
the beryllium standard addresses a significant risk that can be 
eliminated or lessened by a change in practices, see 82 FR 2545-52, and 
the changes and clarifications in this final rule do not affect that 
determination. See, e.g., Pub. Citizen Health Research Grp. v. Tyson, 
796 F.2d 1479, 1502 n.16 (D.C. Cir. 1986) (rejecting the argument that 
OSHA must ``find that each and every aspect of its standard eliminates 
a significant risk'').
    OSHA standards must also be both technologically and economically 
feasible. See United Steelworkers of Am., AFL-CIO-CLC v. Marshall 
(``Lead I''), 647 F.2d 1189, 1264 (D.C. Cir. 1980). The Supreme Court 
has defined feasibility as ``capable of being done.'' Am. Textile Mfrs. 
Inst. v. Donovan (``Cotton Dust''), 452 U.S. 490, 508-09 (1981). The 
courts have further clarified that a standard is technologically 
feasible if OSHA proves a reasonable possibility, ``within the limits 
of the best available evidence . . . that the typical firm will be able 
to develop and install engineering and work practice controls that can 
meet the [standard] in most of its operations.'' Lead I, 647 F.2d at 
1272. With respect to economic feasibility, the courts have held that 
``[a] standard is feasible if it does not threaten massive dislocation 
to or imperil the existence of the industry.'' Id. at 1265 (internal 
quotation marks and citations omitted).
    OSHA exercises significant discretion in carrying out its 
responsibilities under the Act. Indeed, ``[a] number of terms of the 
statute give OSHA almost unlimited discretion to devise means to 
achieve the congressionally mandated goal'' of ensuring worker safety 
and health. See Lead I, 647 F.2d at 1230 (citation omitted). Thus, 
where OSHA has chosen some measures to address a significant risk over 
other measures, parties challenging the OSHA standard must ``identify 
evidence that their proposals would be feasible and generate more than 
a de minimis benefit to worker health.'' N. Am.'s Bldg. Trades Unions 
v. OSHA, 878 F.3d 271, 282 (D.C. Cir. 2017).
    Although OSHA is required to set standards ``on the basis of the 
best available evidence,'' 29 U.S.C. 655(b)(5), its determinations are 
``conclusive'' if supported by ``substantial evidence in the record 
considered as a whole,'' 29 U.S.C. 655(f). Similarly, as the Supreme 
Court noted in Benzene, OSHA must look to ``a body of reputable 
scientific thought'' in making determinations, but a reviewing court 
must ``give OSHA some leeway where its findings must be made on the 
frontiers of scientific knowledge.'' Benzene, 448 U.S. at 656. When 
there is disputed scientific evidence in the record, OSHA must review 
the evidence on both sides and ``reasonably resolve'' the dispute. 
Tyson, 796 F.2d at 1500. The ``possibility of drawing two inconsistent 
conclusions from the evidence does not prevent the agency's finding 
from being supported by substantial evidence.'' N. Am.'s Bldg. Trades 
Unions, 878 F.3d at 291 (quoting Cotton Dust, 452 U.S. at 523) 
(alterations omitted). As the D.C. Circuit has noted, where ``OSHA has 
the expertise we lack and it has exercised that expertise by carefully 
reviewing the scientific data,'' a dispute within the scientific 
community is not occasion for the reviewing court to take sides about 
which view is correct. Tyson, 796 F.2d at 1500.
    Finally, because section 6(b)(5) of the Act explicitly requires 
OSHA to set health standards that eliminate risk ``to the extent 
feasible,'' OSHA uses feasibility analysis rather than cost-benefit 
analysis to make standards-setting decisions dealing with toxic 
materials or harmful physical agents. 29 U.S.C. 655(b)(5). An OSHA 
standard in this area must be technologically and economically 
feasible-and also cost effective, which means that the protective 
measures it requires are the least costly of the available alternatives 
that achieve the same level of protection-but OSHA cannot choose an 
alternative that provides a lower level of protection for workers' 
health simply because it is less costly. See Int'l Union, UAW v. OSHA, 
37 F.3d 665, 668 (D.C. Cir. 1994); see also Cotton Dust, 452 U.S. at 
513 n.32. In Cotton Dust, the Court explained that Congress itself had 
defined the appropriate relationship between costs and benefits by 
prioritizing the ``benefit'' of worker health above all other 
considerations, save those that would make this ``benefit'' 
unachievable. The Court further stated that any standard based on a 
balancing of costs and benefits by the Secretary that strikes a 
different balance than that struck by Congress would be inconsistent 
with the command set forth in section 6(b)(5). See Cotton Dust, 452 
U.S. at 509. Thus, while OSHA estimates the costs and benefits of its 
proposed and final rules, in part to ensure compliance with 
requirements such as those in Executive Orders 12866 and 13771, these 
calculations do not form the basis for the agency's regulatory 
decisions.

IV. Final Economic Analysis and Regulatory Flexibility Act 
Certification (FEA)

A. Summary of Economic Impact

    This rule amends OSHA's existing general industry standard for 
occupational exposure to beryllium and beryllium compounds (29 CFR 
1910.1024) to clarify certain provisions and simplify or improve 
compliance. OSHA's final economic analysis shows that these changes 
will result in unquantifiable cost savings, largely due to the 
prevention of misinterpretation and misapplication of the standard.
    In promulgating the 2017 final rule, OSHA determined that the 
beryllium rule was both technologically and economically feasible. See 
82 FR at 2582-86, 2590-96, Summary of the Final Economic Analysis. The 
changes herein are intended to align the rule more clearly with the 
intent of the 2017 final rule. Because OSHA has

[[Page 42585]]

determined that this final rule will decrease the costs of compliance 
by preventing misinterpretation and misapplication of the standard, and 
would require no new controls or other technology, OSHA has also 
determined that the rule is both technologically and economically 
feasible.
    Because this final rule only clarifies the existing beryllium 
standard or makes minor revisions that will generally aid in 
compliance, the revised beryllium standard will maintain safety and 
health protections for workers. And, to the extent this final rule 
helps employers avoid misapplication of the beryllium standard's 
requirements and hence achieves greater compliance with the standard's 
intended meaning, there will be increased protection for workers.

B. Final Economic Analysis and Regulatory Flexibility Act Certification

    Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 
U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 
1532(a)) require that OSHA estimate the benefits, costs, and net 
benefits of regulations, and analyze the impacts of certain rules that 
OSHA promulgates. Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility.
    This final rule is not a ``significant regulatory action'' under 
Executive Order 12866 or the UMRA. Neither the benefits nor the costs 
of this final rule would exceed $100 million in any given year. On the 
contrary, the possible effects of each provision on costs and benefits 
appear to be relatively small, and OSHA has not been able to quantify 
them. Nor has OSHA been able to quantify the cost savings it expects 
from preventing misinterpretation and misapplication of the standard. 
However, OSHA does expect that this final rule will increase 
understanding and compliance with the standard and, therefore, the 
agency expects the rule to result in some, unquantifiable cost savings. 
Moreover, and as discussed above, OSHA expects this final rule will 
maintain safety and health protections for workers.
1. Final Determinations Regarding Costs and Cost Savings Attributable 
to the Final Rule
    In the Preliminary Economic Analysis and Regulatory Flexibility Act 
Certification (PEA) in the 2018 NPRM, OSHA considered whether each of 
the proposed changes could affect the costs and, if so, how those costs 
might be affected (83 FR at 63760-65). For the purposes of the 
preliminary analysis, the agency divided the proposed changes into two 
groups: (1) Proposed clarifications and (2) proposed revisions. The 
``proposed clarifications'' were those that were solely intended to 
clarify provisions and would not alter the requirements and scope of 
the rule (83 FR at 63760-61). The items OSHA identified as 
clarifications included the addition of a definition of beryllium 
sensitization to paragraph (b); minor changes to the definitions of CBD 
diagnostic center and chronic beryllium disease in paragraph (b); minor 
changes to the written exposure control plan provisions in paragraphs 
(f)(1)(i)(D) and (f)(1)(ii)(B); a minor change in the PPE removal 
provision of paragraph (h)(2)(i); minor changes to provisions for the 
cleaning of PPE in paragraph (h)(3)(iii); minor changes to the cleaning 
of PPE upon entry to eating or drinking areas in paragraph (i)(4)(ii); 
and minor changes to provisions for employee information and training 
in paragraphs (m)(4)(ii)(A) and (m)(4)(ii)(E) (83 FR at 63760-61).
    The ``proposed revisions,'' on the other hand, were those that 
would go beyond clarification and alter certain requirements of the 
beryllium standard (83 FR at 63761). The proposed provisions that OSHA 
identified as revisions included changes to the definitions of 
beryllium work area, confirmed positive, and dermal contact with 
beryllium in paragraph (b); a change to the requirements for washing 
facilities in paragraph (i)(1); a change to the requirements for 
provision of change rooms in paragraph (i)(2); changes to the 
requirements pertaining to disposal and recycling in paragraph (j)(3); 
a change to the requirements for medical surveillance following an 
employee's exposure to beryllium in an emergency in paragraph (k)(2); 
revision to provisions for evaluation at a CBD diagnostic center in 
paragraph (k)(7)(i); a change to the requirements for warning labels in 
paragraph (m)(3); and changes to the requirements for recordkeeping in 
paragraphs (n)(1)(ii)(F), (n)(3)(ii)(A), and (n)(4)(i).
    After carefully reviewing the proposed clarifications and 
revisions, OSHA preliminarily determined that their net total effect 
would result in potential cost savings, mainly from improving employer 
understanding and facilitating application of the rule (83 FR at 63760-
61). OSHA preliminarily identified a new potential cost, which would 
result from the proposed changes as a whole: A de minimis cost for the 
time employers would need to become familiar with the revised portions 
of this final rule (83 FR at 63761, 63765). Viewing all the proposed 
changes as a whole, OSHA explained that it preliminarily anticipated 
that the proposed provisions' net effect would result in some cost 
savings (83 FR at 63761). OSHA invited comment on all aspects of the 
PEA, including these preliminary determinations (83 FR at 63760-62, 
63764-65).
    Stakeholders either agreed with or did not comment on OSHA's 
analysis of potential costs and costs savings attributable to the vast 
majority of the proposed clarifications and revisions (e.g., Document 
ID 0026, pp. 1-2; 0038, pp. 21, 26, 32). The only objections the agency 
received related to two of the four proposed paragraphs that OSHA is 
revising from the proposal in the final rule: (1) The definition of the 
term confirmed positive; and (2) the requirement related to 
examinations at CBD diagnostic centers (Document ID 0021, p. 4; 0022, 
pp. 5-6). Those comments, and OSHA's final determination that each of 
the four paragraphs that OSHA is revising from the proposal will result 
in small and unquantifiable cost savings, are discussed in detail 
below.
    OSHA has also examined the record concerning the proposed 
clarifications and revisions that OSHA has finalized without change. As 
noted above, stakeholders either agreed with or did not comment on 
OSHA's analysis of potential costs and costs savings attributable to 
these proposed changes. Therefore, after carefully considering all the 
comments received and the remainder of the record, OSHA affirms its 
preliminary determination that these clarifications and revisions are 
likely to result in cost savings, largely from improving employer 
understanding and facilitating application of the rule. OSHA also 
affirms its preliminary determination that the only potential new costs 
are de minimis costs for the time employers would need to become 
familiar with the revised portions of this final rule.
    In summary, OSHA finds that both the four paragraphs that OSHA is 
revising from the proposal and the remainder of the proposed 
clarifications and revisions that OSHA is finalizing without change in 
the final rule will result in potential cost savings mainly 
attributable to improving employer understanding and facilitating 
application of the rule, as well as preventing costs that would follow 
from misunderstanding the standard. OSHA expects that the cost savings 
attributable to these changes will offset the de minimis employer 
familiarization costs, resulting in a net result of cost savings. 
Therefore, OSHA finds that this final rule is likely to result in cost 
savings.

[[Page 42586]]

2. Analysis of Costs and Costs Savings Attributable to Provisions in 
the Final Rule That Differ From Those in the Proposal
    In this section the agency discusses the four changes in the final 
rule that differ from the proposal: The definition of confirmed 
positive in paragraph (b), Definitions; a clarification to inter-plant 
transfers in paragraph (j), Housekeeping; and two changes to paragraph 
(k), Medical Surveillance: Requirements related to CBD diagnostic 
centers and requirements for medical examination at termination of 
employment. In all cases, as stated above, the agency has determined 
these will have de minimis cost or cost savings implications.
    Definition of Confirmed Positive.
    The 2017 final rule did not specify a time limit within which the 
BeLPT tests that contribute toward a finding of ``confirmed positive'' 
must occur. In the 2018 NPRM, OSHA proposed to modify the definition of 
confirmed positive to require that the qualifying test results be 
obtained within one testing cycle (including the 30-day follow-up test 
period required after a first abnormal or borderline BeLPT test 
result), rather than arguably over an unlimited time period that might 
have led to false positives that could needlessly concern workers and 
their families, could lead workers to undergo unnecessary testing, and 
would not enhance worker protections. In the PEA, OSHA explained that 
the exact effect of the proposed change was uncertain as it is unknown 
how many employees would have a series of BeLPT results associated with 
a confirmed positive finding (two abnormal results, one abnormal and 
one borderline result, or three borderline results) over an unlimited 
period of time, but would not have any such combination of results 
within a single testing cycle (83 FR at 63761-62). OSHA preliminarily 
concluded that the proposed change would not increase compliance costs 
and would incidentally yield some cost savings by lessening the 
likelihood of false positives (83 FR at 63762). The agency invited 
comment on its preliminary conclusion (83 FR at 63762).
    As discussed in Section XI, Summary and Explanation for paragraph 
(b), a number of stakeholders commented that requiring results within a 
30-day testing cycle could create logistical challenges, for example 
due to repeat testing requirements or for businesses in remote areas 
with limited healthcare facilities (Document ID 0022, p. 4; 0021, p. 4; 
0024, p. 1; 0033, p. 5; 0027, p. 3). National Jewish Health (NJH) also 
commented that removing the time frame of 30 days for confirming 
abnormal results would allow for employee workplace protection and 
clinical evaluation referral at a lower cost and with less logistical 
burden (Document ID 0022, p. 5).
    Stakeholders' logistical concerns and NJH's comment about costs 
reflect a misunderstanding of the proposed change. As explained in more 
detail in the Summary and Explanation for paragraph (b), OSHA did not 
intend that the initial and any follow-up tests had to be completed and 
interpreted within 30 days. Rather, the agency intended that the test 
results be obtained during one cycle of testing, that is, an initial or 
periodic examination followed by follow-up testing conducted within 30 
days of an abnormal or borderline result. For example, if an employee 
received a borderline BeLPT result at his or her periodic examination, 
paragraph (k)(3)(ii)(E) would require the employer to offer a follow-up 
BeLPT within 30 days of the test results. If the follow-up BeLPT result 
was also borderline, paragraph (k)(3)(ii)(E) would again require the 
employer to offer a follow-up BeLPT within 30 days of the first follow-
up test's results. If that second follow-up was borderline or abnormal, 
the employee would have been confirmed positive under the proposal 
because all of the tests that ``confirmed'' the results were triggered 
by the initial test. In other words, OSHA did not intend to suggest 
that the proposal would have required employers to conduct all of the 
tests or obtain the confirming results within a single 30-day period.
    In this final rule, OSHA has revised the definition of confirmed 
positive to specify that the findings of two abnormal, one abnormal and 
one borderline, or three borderline results must be obtained from 
BeLPTs conducted within a three-year period. OSHA determined that this 
revision strikes the appropriate balance between the shorter time 
period for confirmation in the proposal and the unspecified, arguably 
indefinite, time period of the original definition. As explained in the 
Summary and Explanation section, the final three-year period will 
capture the identification of sensitized workers enrolled in medical 
surveillance. OSHA finds that the addition of a specific time period to 
the text of the final rule will decrease the possibility of a 
misinterpretation of the provision's time frame that could lead to 
false positive results.
    As with the proposed revisions to this definition, OSHA finds that 
the exact effect of this change is uncertain because it is unknown how 
many employees would have a series of BeLPT results associated with a 
confirmed positive finding (two abnormal results, one abnormal and one 
borderline result, or three borderline results) over an unlimited 
period of time, but would not have any such combination of results 
within a three-year testing cycle, though it is likely to be small. As 
discussed in Section XI, Summary and Explanation of the Final Rule, NJH 
reported that in a group of 194 CBD patients in their care, the length 
of time between abnormal results ranged from 14 days to 5.8 years, with 
a 95th percentile of 2.9 years. This suggests that the vast majority of 
individuals who will have two abnormal BeLPT tests in the course of 
medical surveillance are likely to be confirmed positive within the 
three-year window of time OSHA is establishing in the definition of 
confirmed positive. The Summary and Explanation section notes further 
that a three-year testing cycle is consistent with practices and 
recommendations of the medical community, pointing to the increasing 
likelihood that a confirmed positive finding over longer periods of 
time will be a false-positive and lead to costly further medical exams 
with no benefit. Thus, OSHA concludes that this change will not 
increase compliance costs and will incidentally yield some cost savings 
by lessening the likelihood of false positives.
    Disposal, Recycling, and Reuse.
    Paragraph (j)(3) of the previous standard (29 CFR 1910.1024(j)(3)) 
addresses disposal and recycling of materials that contain beryllium in 
concentrations of 0.1 percent by weight or more or that are 
contaminated with beryllium. In the 2018 NPRM, OSHA proposed to modify 
this paragraph in a number of ways--all of which the agency 
preliminarily found would not increase the costs of complying with the 
standard and may also result in unquantifiable savings to employers by 
preventing misinterpretation or misapplication of the rule (83 FR at 
63762-63). Stakeholders did not offer any comments objecting to this 
preliminary determination. With the exception of one minor 
clarification to the regulatory text, discussed below, OSHA is adopting 
all of the proposed revisions to paragraph (j)(3) in this final rule. 
After reviewing the record as a whole and having received no evidence 
or comment to the contrary, the agency reaffirms its preliminary 
determination that the proposed revisions to paragraph (j)(3) that are 
being adopted in this final rule will result in some cost savings from 
increased employer understanding.

[[Page 42587]]

    OSHA has made one change to the proposed provisions in paragraph 
(j)(3) in this final rule. When employers transfer certain materials to 
another party for disposal, recycling, or reuse, proposed paragraph 
(j)(3)(i) would have required employers to label the materials in 
accordance with paragraph (m)(3) of the standard. As explained in the 
Summary and Explanation for paragraph (j)(3), a comment alerted the 
agency to a potential ambiguity in this proposed text. Specifically, 
OSHA realized that the phrase ``to another party'' could be read to 
suggest that transfers between two facilities owned by the same 
employer are exempted from the labeling requirements in paragraph 
(j)(3)(i). That was not the agency's intent in the proposal. To 
eliminate any ambiguity on this point, OSHA revised paragraph (j)(3)(i) 
in the final rule to strike the phrase ``to another party'' and add the 
``except for intra-plant transfers'' language that is found in 
paragraphs (j)(3)(ii) and (iii).
    As with the proposed changes to paragraphs (j)(3)(ii) and (iii), 
which clarified that those paragraphs' requirements did not apply to 
intra-plant transfers, OSHA finds that this proposed change is not a 
substantive change to the standard. It is simply clarifying OSHA's 
original intent that all transfers outside of a plant, including 
between facilities owned by the same employer, are subject to the 
labeling requirements of paragraph (m)(3). Since this change does not 
alter the requirements of the standard, it will not affect the costs of 
compliance with the standard. Therefore, OSHA finds that none of the 
changes this final rule makes to paragraph (j)(3) will increase the 
costs of complying with the standard.
    Medical Surveillance.
    In the 2018 NPRM, OSHA proposed two sets of changes to paragraph 
(k). The first set of changes proposed is in paragraph (k)(2), which 
specifies when and how frequently medical examinations are to be 
offered to those employees covered by the medical surveillance program. 
Paragraph (k)(2)(i)(B) of the previous standard required the employer 
to provide a medical examination within 30 days after determining that 
the employee shows signs or symptoms of CBD or other beryllium-related 
health effects or that the employee has been exposed to beryllium in an 
emergency.
    Based on stakeholder feedback and other evidence indicating that 
the 30-day period in the previous standard may be insufficient to 
detect beryllium sensitization in individuals exposed one time in an 
emergency, OSHA proposed removing the requirement for a medical 
examination within 30 days of exposure to beryllium during an 
emergency, under paragraph (k)(2)(i)(B), and adding paragraph 
(k)(2)(iv), which would require the employer to offer a medical 
examination at least one year after but no more than two years after 
the employee is exposed to beryllium during an emergency (83 FR at 
63757).
    In the PEA, OSHA preliminarily determined that the net cost impact 
of these proposed changes would be slight, with some possible cost 
savings. Specifically, OSHA explained that, in the FEA for the 2017 
final rule, the agency estimated that emergencies would affect a very 
small number of employees in a given year, likely less than 0.1 percent 
of the affected population, representing a small addition to the costs 
of medical surveillance for the standard (Document ID OSHA-H005C-2006-
0870-2042, p. V-196). Under the 2017 final rule, some employees might 
have required two examinations to be confirmed positive: A first test 
cycle within the initial 30-day period and a second BeLPT at least two 
years later. Under the 2018 NPRM, OSHA expected that more of the 
employees who became sensitized from exposure in an emergency would be 
confirmed positive through a single testing cycle because that test 
would have been administrated one to two years following the emergency. 
The agency anticipated that the proposed change would result in the 
elimination of one premature testing, which would ensure better 
detection for more employees and incidentally trigger some cost savings 
(83 FR at 63764).\3\
---------------------------------------------------------------------------

    \3\ Assuming that this initial analysis does not result in a 
confirmed positive diagnosis, that employee would not be confirmed 
positive until a second test two years later under the current rule.
---------------------------------------------------------------------------

    To the extent that lengthening the time period in which the test 
must be offered from within 30 days to between one and two years leads 
to earlier confirmed positive results (within two years, as opposed to 
within two years plus 30 days), OSHA preliminarily found that the 
proposed change could slightly accelerate costs to the employer for 
earlier CBD diagnostic center referral and medical removal protection. 
OSHA estimated that the proposed change would affect a very small 
percentage of an already very small population. The agency 
preliminarily determined that the proposed revision would only 
potentially change the timing of the already-required BeLPT, CBD 
diagnostic center referral, and medical removal protection (83 FR at 
63764, 63764 n.5).
    In summary, OSHA preliminarily found that the end result of the 
proposed changes to paragraph (k)(2) from a cost perspective would be 
that the cost savings from the potential avoidance of a premature BeLPT 
within 30 days following an emergency would likely be largely canceled 
out by the acceleration of the cost of the CBD diagnostic center 
evaluation and medical removal protection. Therefore, OSHA 
preliminarily determined that the net cost impact of the proposed 
changes would be slight, with some possible cost savings (83 FR at 
63764). Stakeholders did not submit any comments related to OSHA's 
preliminary determinations regarding potential costs of the proposed 
revisions to paragraph (k)(2).
    In sum, after considering the record as a whole, OSHA finds that 
its preliminary estimates were correct: A small change in costs, with 
possible cost savings. Nevertheless, as discussed in more detail in the 
Summary and Explanation for paragraph (k), Medical Surveillance, some 
stakeholders expressed concerns about possible delays in medical 
consultations and examinations and lack of employee knowledge of 
potential health effects, and one stakeholder argued that employees who 
terminate employment before receiving the post-emergency examination 
might not receive an examination at all after being exposed in an 
emergency (Document ID 0023, pp. 2-3; 0024, p. 2; 0027, p. 4).
    OSHA is revising paragraphs (k)(2) in the final rule in two ways to 
address these concerns. First, OSHA has added two sub-provisions under 
paragraph (k)(2)(iv) to provide for post-emergency examination timing 
for two separate groups of employees. Final paragraph (k)(2)(iv)(A) 
focuses on the very small group of employees who are exposed in an 
emergency but have not received a medical examination under paragraph 
(k)(1)(i) within the previous two years. The requirement for these 
employees is similar to the requirement contained in the previous 
standard; i.e., under the final standard, the employer must provide 
these employees with a medical examination within 30 days of the date 
of the emergency. Because the final standard treats these employees 
similarly to the manner in which the previous standard treated all 
employees exposed in an emergency, OSHA does not expect that there will 
be any change in cost attributable to this change. In other words, for 
those employees who have not had a medical examination within the past 
two years there is no change in protocol and, thus, no change in costs.

[[Page 42588]]

    Final paragraph (k)(2)(iv)(B) focuses on employees who are exposed 
during an emergency, but have recently received an examination. Under 
this new provision, if an employee has received a medical examination 
under paragraph (k)(1)(i) within the previous two years, then the 
employer would be required to offer that employee a medical examination 
that meets the requirements of the standard at least one year but no 
more than two years after the employee was exposed to beryllium in an 
emergency. Because this provision treats employees who have recently 
received an examination similarly to the manner in which the proposal 
would have treated all employees exposed in an emergency, OSHA expects 
that this change will result in a fraction of the small cost savings 
preliminarily estimated in the proposal.
    Second, to address concerns that delaying the medical examination 
to at least one year and no more than two years following the emergency 
may result in employees not receiving a post-emergency examination if 
their employment ends soon after exposure during an emergency, OSHA is 
revising paragraph (k)(2)(iii) to require that each employee who is 
exposed in an emergency and has not received an examination since the 
emergency exposure is provided an examination at the time employment is 
terminated. Because paragraph (k)(2)(iii) already requires an 
examination at termination if there has not been one within the last 
six months due to any of the standard medical exam triggers, including 
emergency exposure, OSHA expects that this change will affect an 
extremely small group of employees. This revision, however, will ensure 
that all employees with emergency exposure are offered a medical exam, 
even under this very narrow set of circumstances. The baseline of costs 
and cost savings of this analysis is the previous rule, which already 
required a medical exam within 30 days of emergency exposure. Thus, 
OSHA does not expect that this change will have any cost implications.
    In summary, OSHA finds that this final rule's revisions to 
paragraph (k)(2) will result in slight cost savings. No costs or costs 
savings are attributable to new paragraph (k)(2)(iv)(A), which treats 
employees exposed in an emergency who have not received a medical 
examination within the previous two years pursuant to paragraph 
(k)(1)(i) similarly to how all employees exposed in an emergency were 
treated under the previous standard. The end result of final paragraph 
(k)(2)(iv)(B), however, will be cost savings from the potential 
avoidance of a premature BeLPT that are largely offset by the 
acceleration of the cost of the CBD diagnostic center evaluation and 
medical removal protection. OSHA does not attribute any costs or cost 
savings to result from the revisions to paragraph (k)(2)(iii). 
Therefore, the agency expects the new result of final paragraph (k)(2) 
to be a slight cost savings.
    The second set of changes proposed to the standard's medical 
surveillance requirements is in paragraph (k)(7), which contains the 
requirements for evaluation at a CBD diagnostic center. Paragraph 
(k)(7)(i) of the previous rule required employers to provide an 
evaluation at no cost to the employee at a CBD diagnostic center that 
is mutually agreed upon by the employee and employer within 30 days of 
the employer receiving a written medical opinion that recommends 
referral to a CBD diagnostic center, or a written medical report 
indicating that the employee has been confirmed positive or diagnosed 
with CBD. To address stakeholder concerns that scheduling the 
appropriate tests with an examining physician at the CBD diagnostic 
center may take longer than 30 days, OSHA proposed that the employer 
provide an initial consultation with the CBD diagnostic center, rather 
than the full evaluation, within 30 days of the employer receiving one 
of the types of documentation listed in paragraph (k)(7)(i)(A) or (B). 
The agency noted that the consultation could occur via telephone or 
virtual conferencing methods and would demonstrate that the employer 
made an effort to begin the process for a medical examination (83 FR at 
63758). Evaluation and any testing would then occur within a reasonable 
time after the consultation.
    In the PEA, OSHA noted that while the addition of the consultation 
would not result in any additional costs or cost savings (since the 
2017 FEA had already accounted for a 15-minute discussion between the 
employee and a physician (Document ID OSHA-H005C-2006-0870-2042, p. V-
206)), allowing more flexibility in scheduling the tests at the CBD 
diagnostic center would enable employers to find more economical travel 
and accommodation options. To the extent that it takes longer than 30 
days to schedule the tests at the CBD diagnostic center, the agency 
preliminarily found that employers may realize a cost savings due to 
retaining funds during the delay. OSHA could not quantify the effect of 
this flexibility, however, concluding only that it expected that the 
changes would produce minor, if any, cost savings. The agency invited 
comment on its preliminary assessment of these potential effects (83 FR 
at 63764).
    Stakeholders did not offer any comments on the agency's preliminary 
estimates regarding the cost savings attributable to these proposed 
changes. Several commenters objected to adding the consultation 
requirement, however, arguing that it was an unnecessary step that 
would add logistical complications and costs (see, e.g., Document ID 
0021, p. 3; 022, p. 6). This is discussed in more detail in the Summary 
and Explanation for paragraph (k), Medical Surveillance. After 
considering these comments and the record as a whole, OSHA decided to 
modify paragraph (k)(7)(i) to require that the employer within 30 days 
of receiving one of the types of documentation listed in paragraph 
(k)(7)(i)(A) or (B) schedule an evaluation at a CBD diagnostic center. 
In addition, OSHA is adding a requirement that the evaluation itself 
must occur within a reasonable time.
    OSHA finds that these changes may slightly delay the incidence of 
costs of an evaluation under paragraph (k)(7)(i), in that it may occur 
at a later date in some cases than under the existing provision. This 
would slightly decrease the costs of compliance with the standard. The 
agency also finds that allowing the evaluation to occur within a 
reasonable time, rather than within 30 days, may allow for more cost-
effective travel and accommodation options. Thus, as with the proposal, 
OSHA concludes that these changes may produce minor cost savings.
    To account for a proposed change to the definition of CBD 
diagnostic center, the proposed rule would also have amended paragraph 
(k)(7)(i) to clarify that the employer must provide, at no cost to the 
employee and within a reasonable time after consultation with the CBD 
diagnostic center, any of the following tests that a CBD diagnostic 
center must be capable of performing, if deemed appropriate by the 
examining physician at the CBD diagnostic center: A pulmonary function 
test as outlined by American Thoracic Society criteria testing, 
bronchoalveolar lavage (BAL), and transbronchial biopsy. In the PEA, 
OSHA explained that this proposed change would not alter the 
requirements of the standard and therefore would not change the costs 
of compliance with the standard (83 FR at 63764).
    Stakeholders did not offer any comments on OSHA's determination 
that these proposed changes would not affect costs. Some stakeholders 
argued, however, that the proposed provision could be misinterpreted to 
mean that the employer does not have to make available other tests that 
the examining

[[Page 42589]]

physician deems appropriate for reasons such as diagnosing or 
determining the severity of CBD (Document ID 0021, p. 3; 0022, p. 3; 
0028, p. 2). This is discussed in more detail in the Summary and 
Explanation for paragraph (k), Medical Surveillance. To address these 
concerns, OSHA is adding a new provision, paragraph (k)(7)(ii), which 
clarifies that, as part of the evaluation at the CBD diagnostic center, 
the employer must ensure that the employee is offered any tests deemed 
appropriate by the examining physician at the CBD diagnostic center, 
such as pulmonary function testing as outlined by American Thoracic 
Society criteria testing, bronchoalveolar lavage (BAL), and 
transbronchial biopsy.\4\ If any of these tests deemed appropriate by 
the examining physician are not available at the CBD diagnostic center, 
the final rule allows them to be performed at another location that is 
mutually agreed upon by the employer and the employee.
---------------------------------------------------------------------------

    \4\ As discussed in Section XI, Summary and Explanation of the 
Final Rule, OSHA also redesignated previous paragraphs (k)(7)(ii), 
(iii), (iv), and (v) as paragraphs (k)(7)(iii), (iv), (v), and (vi), 
respectively. This redesignation in paragraph (k) also affects a 
reference in paragraph (l)(1)(ii). These changes are merely 
administrative and do not have any substantive or monetary effect.
---------------------------------------------------------------------------

    OSHA does not believe that requiring employers to provide any tests 
deemed appropriate by the examining physician would change the costs of 
compliance with the standard because the agency accounted for such 
costs in the 2017 final rule.\5\ Specifically, when calculating the 
unit cost for going to a CBD diagnostic center in the 2017 FEA, the 
agency used a typical suite of tests that would be performed (Document 
ID OSHA-H005C-2006-0870-2042, p. V-205). Consequently, OSHA's unit cost 
in the 2017 final rule for an evaluation at a CBD diagnostic center was 
an average for standard tests that are required. The agency finds that 
this average set of tests by definition is constructed to give the 
average cost for the tests deemed appropriate by the examining 
physician and, thus, concludes that there are no costs or cost savings 
attributable to this change.
---------------------------------------------------------------------------

    \5\ As discussed in the Summary and Explanation for paragraph 
(k), Medical Surveillance, OSHA never intended to limit the required 
tests to the three tests listed in the previous definition of the 
term CBD diagnostic center.
---------------------------------------------------------------------------

    Paragraph (k)(7)(ii) requires that if any test deemed appropriate 
by the examining physician is not available at the CBD diagnostic 
center, the test must be performed at another location that is mutually 
agreed to by the employer and employee. OSHA believes that such 
circumstances would be very rare. CBD diagnostic centers with the 
ability to perform pulmonary function testing (as outlined by the 
American Thoracic Society criteria), bronchoalveolar lavage (BAL), and 
transbronchial biopsy are most likely to also provide other medical 
tests related to CBD.\6\ As a result, the CBD diagnostic center in the 
vast majority of cases will be able to offer the additional testing 
deemed necessary by the examining physician. Moreover, because the 
three tests noted above are the tests that are commonly needed to 
diagnose CBD, OSHA expects that these are the tests that would most 
commonly be performed (see Section XI, Summary and Explanation of the 
Final Rule). Given that this standard requires CBD diagnostic centers 
to be able to perform the three tests that are most commonly performed 
to diagnose CBD and CBD diagnostic centers typically would be able to 
offer any additional tests deemed necessary, OSHA expects that 
employees would rarely, if ever, need to travel to a second 
location.\7\ In those rare cases, the added flexibility of having the 
tests performed outside of a CBD diagnostic center gives more options 
for the employer and employee and should lead to cost savings. Because 
this situation should be quite uncommon, OSHA expects that the cost 
savings of allowing employees to have additional tests outside of a CBD 
diagnostic center are likely to be de minimis.
---------------------------------------------------------------------------

    \6\ Document ID OSHA-H005C-2006-0870-0637 provides some 
information from the NJH website, which provides an overview of the 
types of tests performed.
    \7\ OSHA also notes that it has always intended for employers to 
make available any additional tests deemed appropriate by the 
examining physician (see the discussion of paragraph (k), Medical 
Surveillance, in Section XI, Summary and Explanation of the Final 
Rule, of this preamble). The economic analysis of the 2017 final 
rule did not explicitly account for these rare cases where a test 
recommended by the examining physician of the CBD diagnostic center 
was not available at the same center. Hence, there would be a de 
minimis cost adjustment increase of the total cost of the 2017 final 
rule due to this consideration. This is not a change in people's 
behavior, simply a methodological change. The current final rule 
could affect people's behavior and be a true change (decrease) in 
costs. This change merely provides employers with a more flexible, 
potentially less expensive, manner to provide those tests in the 
rare situation where they are not available at the original CBD 
diagnostic center.
---------------------------------------------------------------------------

    This change to paragraph (k)(7) clarifies OSHA's intent that the 
employer provide any tests deemed appropriate by the examining 
physician at the CBD diagnostic center, or at another location if not 
available at the CBD diagnostic center, but does not substantively 
change the requirements of the beryllium standard. OSHA expects that 
the changes described here would maintain safety and health protections 
for workers.
3. Economic and Technological Feasibility
    In the FEA in support of OSHA's 2017 Beryllium Final Rule, OSHA 
concluded that the general industry beryllium standard was economically 
and technologically feasible (see 82 FR at 2471). In the 2018 NPRM, 
OSHA explained that it anticipated that none of the proposed changes 
would impose any new employer obligations or increase the overall cost 
of compliance, while some of the changes would clarify and simplify 
compliance in such a way that results in cost savings. In addition, 
OSHA preliminarily anticipated that the de minimis cost of any time 
spent reviewing the proposed changes would be more than offset by the 
cost savings described in the PEA. OSHA further found that none of the 
proposed revisions would require any new controls or other technology. 
OSHA therefore preliminarily determined that the proposed rule was both 
economically and technologically feasible. OSHA did not receive any 
comments objecting to or otherwise questioning this preliminary 
determination.\8\ Therefore, after considering the record as a whole, 
OSHA finds that the proposed provisions that are being adopted in this 
final rule are economically and technologically feasible.
---------------------------------------------------------------------------

    \8\ Although the agency did not receive any comments questioning 
the economic or technological feasibility of the proposed changes, 
at least one stakeholder argued that the previous standard was not 
economically or technologically feasible and that the proposed 
provisions remedied some of that stakeholder's concerns with 
feasibility (Document ID 0038, pp. 13, 21-22, 43). Because the 
feasibility of the January 2017 final rule as a whole is not at 
issue in this rulemaking, OSHA considers these comments indicating 
that these changes provide both economic and technological 
feasibility relief as support for the economic and technological 
feasibility of the proposed revisions.
---------------------------------------------------------------------------

    OSHA also finds that the few new changes between the proposal and 
the final rule would not require any new controls or other technology 
and will result in cost savings. Therefore, OSHA finds that these final 
provisions, and the final rule as a whole, are economically and 
technologically feasible.
4. Effects on Benefits
    In the 2017 FEA, OSHA attributed approximately 67 percent of the 
beryllium sensitization cases and the CBD cases avoided, and none of 
the lung cancer cases avoided, solely to the ancillary provisions of 
the standard (Document ID OSHA-H005C-2006-0870-2042, pp. VII-4 to VII-
5, VII-24). This estimate was based on the ancillary provisions as a 
whole, rather than each provision separately.

[[Page 42590]]

    In the PEA, OSHA considered the potential effect of each proposed 
change to ancillary provisions on employee protections. Because the 
proposed revisions to the standard would not remove or change the 
general nature of any ancillary provisions, and because the agency 
expected the proposed revisions to maintain safety and health 
protections for workers and facilitate employer understanding and 
compliance, OSHA preliminarily determined that the proposed changes 
would increase the standard's benefits as a whole by enhancing worker 
protections overall and by preventing costs that follow from 
misunderstanding the standard.
    OSHA did not receive any comments related to its preliminary 
assessment of the proposed provisions' effects on benefits. Having 
considered the record as a whole, including all the comments received, 
OSHA finds that the changes in this final rule will maintain safety and 
health protections for workers while aligning the standard with the 
intent behind the 2017 final rule and otherwise preventing costs that 
could follow from misinterpretation or misapplication of the standard. 
And the agency reaffirms its determination that facilitating employer 
understanding and compliance has the benefit of enhancing worker 
protections overall. Therefore, OSHA finds that the changes in this 
final rule will increase the benefits of the standard as a whole.
5. Regulatory Flexibility Act Certification
    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq. (as amended), OSHA has examined the regulatory requirements of 
this final rule to revise the general industry beryllium standard to 
determine whether they would have a significant economic impact on a 
substantial number of small entities. The final rule modifies the 
general industry standard to clarify certain provisions and simplify or 
improve compliance. It does not impose any new duties or increase the 
overall cost of compliance, and OSHA expects it will provide some cost 
savings. OSHA therefore expects that this final rule will not have a 
significant economic impact on any small entities. Accordingly, OSHA 
certifies that this final rule will not have a significant economic 
impact on a substantial number of small entities.

V. Office of Management and Budget (OMB) Review Under the Paperwork 
Reduction Act of 1995

A. Overview

    This final rule revises information collection (paperwork) 
requirements in the occupational exposure to beryllium in general 
industry (29 CFR 1910.1024) standard that are subject to Office of 
Management and Budget (OMB) approval under the Paperwork Reduction Act 
of 1995 (PRA) (44 U.S.C. 3501 et seq.) and its implementing regulations 
(5 CFR part 1320). OSHA is revising the previously approved paperwork 
package under OMB control number 1218-0267, as it pertains to general 
industry only. The collection of information items contained in the 
Information Collection Request (ICR) pertaining to occupational 
exposure to beryllium in the construction and shipyard sectors remain 
in the ICR without change.
    The PRA generally requires that agencies consider the impact of 
paperwork and other information collection burdens imposed on the 
public, obtain public input, and obtain approval from OMB before 
conducting any collection of information (44 U.S.C. 3507). The PRA 
defines a collection of information as ``the obtaining, causing to be 
obtained, soliciting, or requiring the disclosure to third parties or 
the public, of facts or opinions by or for an agency, regardless of 
form or format'' (44 U.S.C. 3502(3)(A)). Federal agencies generally 
cannot conduct or sponsor a collection of information, and the public 
is generally not required to respond to an information collection, 
unless it is approved by OMB under the PRA and displays a valid OMB 
control number (44 U.S.C. 3507). Also, notwithstanding any other 
provision of law, no person shall be subject to penalty for failing to 
comply with a collection of information if the collection of 
information does not display a valid OMB control number (44 U.S.C. 
3512).

B. Solicitation of Comments

    On January 9, 2017, OSHA published a final rule establishing new 
permissible exposure limits and other provisions to protect employees 
from beryllium exposure, such as requirements for exposure assessment, 
respiratory protection, personal protective clothing and equipment, 
housekeeping, medical surveillance, hazard communication, and 
recordkeeping for the general industry, construction, and shipyard 
sectors. OMB approved the collections of information contained in the 
final rule under OMB Control Number 1218-0267.
    On December 11, 2018, OSHA published a Notice of Proposed 
Rulemaking (NPRM) to modify the general industry beryllium standard by 
clarifying certain provisions to improve and simplify compliance (83 FR 
63746). The 2018 NPRM proposed to revise the collections of information 
contained in the general industry standard by modifying provisions for 
the written exposure control plan; the cleaning and replacement of 
personal protection equipment; the disposal, recycling, and reuse of 
contaminated materials; certain aspects of medical surveillance; and 
the collection of social security numbers in recordkeeping. OSHA 
prepared and submitted to OMB an ICR for the 2018 proposed rule for 
review in accordance with 44 U.S.C. 3507(d). A copy of the proposed ICR 
is available to the public at https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1218-0267.
    In accordance with the PRA (44 U.S.C. 3506(c)(2)), OSHA solicited 
public comments on the collection of information contained in the 2018 
proposed rule. OSHA encouraged commenters to submit their comments on 
the information collection requirements contained in the proposed rule 
under docket number OSHA-2018-0003, along with their comments on other 
parts of the proposed rule. In addition to generally soliciting 
comments on the collection of information requirements, the proposed 
rule indicated that OSHA and OMB were particularly interested in the 
following items:
     Whether the proposed collection of information is 
necessary for the proper performance of the agency's functions, 
including whether the information is useful;
     The accuracy of the agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used;
     The quality, utility, and clarity of the information to be 
collected; and
     Ways to minimize the compliance burden on employers, for 
example, through the use of automated or other technological techniques 
for collecting and transmitting information (83 FR 63766).
    On March 29, 2019, OMB issued a Notice of Action (NOA) stating, 
``Terms of the previous clearance remain in effect. OMB is withholding 
approval at this time. Prior to publication of the final rule, the 
agency should provide a summary of any comments related to the 
information collection and their response, including any changes made 
to the ICR as a result of comments. In

[[Page 42591]]

addition, the agency must enter the correct burden estimates'' (see OMB 
Conclusion Action on ICR Reference No. 201812-1218-001, dated March 29, 
2019, available at: https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1218-0267).
    The agency did not receive any public comments in response to the 
proposed ICR submitted to OMB for review. Public comments submitted in 
response to the NPRM, however, substantively addressed provisions 
containing collection of information. OSHA considered these comments 
when it developed the revised ICR for this final rule. Summaries of 
comments received on the NPRM and OSHA's responses are found in 
Sections XI, Summary and Explanation of the Final Rule, and IV, Final 
Economic Analysis and Regulatory Flexibility Act Certification.
    The Department of Labor submitted the final ICR concurrent with the 
publication of this final rule, containing the full analysis and 
description of the burden hours and costs associated with the final 
rule, to OMB for approval. A copy of this ICR will be available to the 
public at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202006-1218-006 (this link will become active on the day following publication 
of this notice). At the conclusion of OMB's review, OSHA will publish a 
separate notice in the Federal Register to announce the results.

C. Summary of Information Collection Requirements

    As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the 
following paragraphs provide information about the ICR.
    1. Title: Beryllium Standard for General Industry (29 CFR 
1910.1024), Construction (29 CFR 1926.1124), and Maritime (29 CFR 
1915.1024).
    2. Type of Review: Revision.
    3. OMB Control Number: 1218-0267.
    4. Affected Public: Business or Other For-Profit. This final rule 
applies to employers in general industry who have employees that may 
have occupational exposures to any form of beryllium, including 
compounds and mixtures, except those articles and materials exempted by 
paragraphs (a)(2) and (a)(3).
    5. Occupational Exposure to Beryllium in General Industry only:
    a. Number of Respondents: 4,538.
    b. Frequency of Responses: On occasion, quarterly, semi-annually, 
annually, biannually.
    c. Number of Responses: 134,570.
    d. Estimated Total Burden Hours: 82,822.
    e. Estimated Cost: $18,741,540.
    6. Occupational Exposure to Beryllium in Construction and Shipyard 
Sectors (previously-approved costs not affected by this rulemaking):
    a. Number of Respondents: 2,796.
    b. Frequency of responses: On occasion, quarterly, semi-annually, 
annually, biannually.
    c. Number of responses: 39,420.
    d. Estimated Total Burden Hours: 25,269.
    e. Estimated Cost: $8,774,874.
    7. Total Estimated Burden Hours and Cost for All Three Industries:
    a. Estimated Total Number of responses: 173,990.
    b. Estimated Total Burden Hours: 108,091.
    c. Estimated Cost: $27,516,414.

D. Summary of Changes in the Collection of Information Requirements

    This final standard for occupational exposure to beryllium and 
beryllium compounds in general industry revises the collection of 
information requirements contained in the existing ICR for general 
industry, approved under OMB control number 1218-0267. OSHA is updating 
the new ICR to reflect those changes, which include changes to the 
written exposure control plan; the cleaning and replacement of personal 
protection equipment; the disposal, recycling, and reuse of 
contaminated materials; certain aspects of medical surveillance; and 
the collection of Social Security numbers in recordkeeping (see Table 
V.1 below). The majority of these changes were adopted by the agency as 
proposed. However, in response to comments on the proposed rule, OSHA 
has revised a few of the provisions of the final rule that affect the 
collection of information. Those changes are also noted in Table V.1 
below.

   Table V.1--Changes to Collection of Information Requirements in the
                     Final Rule for General Industry
------------------------------------------------------------------------
                                               Explanation of this final
 Information collection requirements in this     rule's changes to the
                  final rule                     information collection
                                                      requirements
------------------------------------------------------------------------
Sec.   1910.1024(f)(1)(i), (ii), & (iii)--     This final rule removed
 Methods of Compliance--Written Exposure        the word ``preventing''
 Control Plan.                                  from (f)(i)(D), which
(i) The employer must establish, implement,     previously contained the
 and maintain a written exposure control        phrase ``including
 plan, which must contain:.                     preventing the transfer
(A) A list of operations and job titles         of beryllium.'' In
 reasonably expected to involve airborne        addition, the final rule
 exposure to or dermal contact with             revised (f)(1)(ii)(B) by
 beryllium;.                                    replacing the phrase
(B) A list of operations and job titles         ``airborne exposure to
 reasonably expected to involve airborne        or dermal contact with
 exposure at or above the action level;.        beryllium'' with
(C) A list of operations and job titles         ``exposure to
 reasonably expected to involve airborne        beryllium.'' Both of
 exposure above the TWA PEL or STEL;.           these changes were
                                                adopted as proposed.
    (D) Procedures for minimizing cross-
     contamination, including the transfer of
     beryllium between surfaces, equipment,
     clothing, materials, and articles within
     beryllium work areas;
    (E) Procedures for keeping surfaces as
     free as practicable of beryllium;
    (F) Procedures for minimizing the
     migration of beryllium from beryllium
     work areas to other locations within or
     outside the workplace;
    (G) A list of engineering controls, work
     practices, and respiratory protection
     required by paragraph (f)(2) of this
     standard;
    (H) A list of personal protective
     clothing and equipment required by
     paragraph (h) of this standard; and
    (I) Procedures for removing, laundering,
     storing, cleaning, repairing, and
     disposing of beryllium-contaminated
     personal protective clothing and
     equipment, including respirators.
(ii) The employer must review and evaluate
 the effectiveness of each written exposure
 control plan at least annually and update
 it, as necessary, when:
    (A) Any change in production processes,
     materials, equipment, personnel, work
     practices, or control methods results,
     or can reasonably be expected to result,
     in new or additional airborne exposure
     to beryllium;

[[Page 42592]]

 
    (B) The employer is notified that an
     employee is eligible for medical removal
     in accordance with paragraph (l)(1) of
     this standard for evaluation at a CBD
     diagnostic center, or shows signs or
     symptoms associated with exposure to
     beryllium; or
    (C) The employer has any reason to
     believe that new or additional airborne
     exposure is occurring or will occur.
(iii) The employer must make a copy of the
 written exposure control plan accessible to
 each employee who is, or can reasonably be
 expected to be, exposed to airborne
 beryllium in accordance with OSHA's Access
 to Employee Exposure and Medical Records
 (Records Access) standard (29 CFR
 1910.1020(e)).
Sec.   1910.1024(h)(3)(iii)--Personal          This final rule revised
 Protective Clothing and Equipment--Cleaning    (h)(3)(iii) by replacing
 and Replacement.                               the phrase ``airborne
(3)(iii) The employer must inform in writing    exposure to and dermal
 the persons or the business entities who       contact with beryllium''
 launder, clean, or repair the personal         with ``exposure to
 protective clothing or equipment required by   beryllium.'' This change
 this standard of the potentially harmful       was adopted as proposed.
 effects of exposure to beryllium and that
 the personal protective clothing and
 equipment must be handled in accordance with
 this standard..
Sec.   1910.1024(j)(3)(i), (ii), & (iii)--     This final rule revised
 Housekeeping--Disposal, recycling, and reuse.  (j)(3) by explicitly
(3)(i) Except for intra-plant transfers, when   addressing transferring
 the employer transfers materials that          materials for reuse;
 contain at least 0.1% beryllium by weight or   reorganizing the
 are contaminated with beryllium for            previous two provisions
 disposal, recycling, or reuse, the employer    into three to allow the
 must label the materials in accordance with    agency to incorporate
 paragraph (m)(3) of this standard;.            the new reuse
(ii) Except for intra-plant transfers,          requirements, while also
 materials designated for disposal that         setting out each
 contain at least 0.1% beryllium by weight or   distinct obligation
 are contaminated with beryllium must be        clearly; replacing the
 cleaned to be as free as practicable of        phrase materials ``that
 beryllium or placed in enclosures that         contain beryllium in
 prevent the release of beryllium-containing    concentrations of 0.1
 particulate or solutions under normal          percent by weight or
 conditions of use, storage, or transport,      more'' with a shorter,
 such as bags or containers; and.               easier to understand
(iii) Except for intra-plant transfers,         phrase: Materials ``that
 materials designated for recycling or reuse    contain at least 0.1
 that contain at least 0.1% beryllium by        percent beryllium by
 weight or are contaminated with beryllium      weight;'' clarifying
 must be cleaned to be as free as practicable   that the rule's
 of beryllium or placed in enclosures that      requirements for
 prevent the release of beryllium-containing    disposal, recycling, and
 particulate or solutions under normal          reuse do not apply to
 conditions of use, storage, or transport,      intra-plant transfers;
 such as bags or containers..                   clarifying the enclosure
                                                requirements by
                                                providing more detail on
                                                what constitutes an
                                                appropriate enclosure;
                                                allowing for the
                                                cleaning of materials
                                                bound for disposal; and
                                                removing the undefined
                                                phrase ``surface
                                                beryllium
                                                contamination.''
                                               In addition to the above
                                                actions, which were all
                                                adopted as proposed, in
                                                this final rule, OSHA
                                                revised paragraph
                                                (j)(3)(i) to explicitly
                                                incorporate the
                                                clarification that the
                                                rule's requirements for
                                                disposal, recycling, and
                                                reuse do not apply to
                                                intra-plant transfers.

[[Page 42593]]

 
Sec.   1910.1024(k)(2)--Medical Surveillance.  Paragraph (k)(2)(i)(B) of
 (2) Frequency.                                 the 2017 standard
The employer must provide a medical             previously required the
 examination:.                                  employer to provide a
(i) Within 30 days after determining that:...   medical examination
(A) An employee meets the criteria of           within 30 days after
 paragraph (k)(1)(i)(A), unless the employee    determining that the
 has received a medical examination, provided   employee shows signs or
 in accordance with this standard, within the   symptoms of CBD or other
 last two years; or.                            beryllium-related health
(B) An employee meets the criteria of           effects or that the
 paragraph (k)(1)(i)(B) of this standard..      employee has been
(ii) At least every two years thereafter for    exposed to beryllium in
 each employee who continues to meet the        an emergency. The 2018
 criteria of paragraph (k)(1)(i)(A), (B), or    NPRM would have added
 (D) of this standard..                         paragraph (k)(2)(iv) to
(iii) At the termination of employment for      require employers to
 each employee who meets any of the criteria    offer an examination to
 of paragraph (k)(1)(i) of this standard at     employees exposed to
 the time the employee's employment             beryllium in an
 terminates, unless an examination has been     emergency at least one
 provided in accordance with this standard      year after but no more
 during the six months prior to the date of     than two years after the
 termination. Each employee who meets the       employee is exposed to
 criteria of paragraph (k)(1)(i)(C) of this     beryllium in an
 standard and who has not received an           emergency. It also would
 examination since exposure to beryllium        have amended paragraph
 during the emergency must be provided an       (k)(2)(i)(B) to focus
 examination at the time the employee's         only on the frequency of
 employment terminates..                        examinations for
(iv) For an employee who meets the criteria     employees who show signs
 of paragraph (k)(1)(i)(C) of this standard:.   or symptoms of CBD or
(A) If that employee has not received a         other beryllium-related
 medical examination within the previous two    health effects.
 years pursuant to paragraph (k)(1)(i) of      This final rule's
 this standard, then within 30 days after the   provisions differ from
 employee meets the criteria of paragraph       those in the proposal.
 (k)(1)(i)(C) of this standard; or.             Specifically, in this
(B) If that employee has received a medical     final rule, OSHA removed
 examination within the previous two years      the requirement for a
 pursuant to paragraph (k)(1)(i) of this        medical examination
 standard, then at least one year but no more   within 30 days of
 than two years after the employee meets the    exposure in an emergency
 criteria of paragraph (k)(1)(i)(C) of this     and added paragraph
 standard..                                     (k)(2)(iv). Final
                                                paragraph (k)(2)(iv)(A)
                                                requires the employer to
                                                offer a medical
                                                examination to an
                                                employee within 30 days
                                                after the employee was
                                                exposed to beryllium in
                                                an emergency, if the
                                                employee has not had an
                                                examination under
                                                paragraph (k)(1)(i)
                                                within the last two
                                                years, while final
                                                paragraph (k)(2)(iv)(B)
                                                requires the employer to
                                                offer a medical
                                                examination to an
                                                employee within one to
                                                two years after the
                                                employee was exposed to
                                                beryllium in an
                                                emergency, if the
                                                employee had an
                                                examination under
                                                paragraph (k)(1)(i) of
                                                the beryllium standard
                                                within the last two
                                                years. In addition, this
                                                final rule revised
                                                paragraph (k)(2)(iii) to
                                                require that each
                                                employee who is exposed
                                                in an emergency and has
                                                not received an
                                                examination since the
                                                emergency exposure must
                                                be provided an
                                                examination at the time
                                                employment is
                                                terminated.
                                               As proposed in the 2018
                                                NPRM, this final rule
                                                also amended paragraph
                                                (k)(2)(i)(B) to focus
                                                only on the frequency of
                                                examinations for
                                                employees who show signs
                                                or symptoms of CBD or
                                                other beryllium-related
                                                health effects.

[[Page 42594]]

 
Sec.   1910.1024(k)(7)--Medical Surveillance-- The 2018 NPRM would have
 Referral to the CBD Diagnostic Center.         amended paragraph (k)(7)
(7) CBD diagnostic center. (i) The employer     of the 2017 standard to
 must provide an evaluation at no cost to the   require employers to
 employee at a CBD diagnostic center that is    provide, at no cost to
 mutually agreed upon by the employer and the   the employee and within
 employee. The evaluation at the CBD            a reasonable time after
 diagnostic center must be scheduled within     the initial consultation
 30 days, and must occur within a reasonable    with the CBD diagnostic
 time, of:.                                     center, any of the
(A) The employer's receipt of a physician's     following tests if
 written medical opinion to the employer that   deemed appropriate by
 recommends referral to a CBD diagnostic        the examining physician
 center; or.                                    at the CBD diagnostic
(B) The employee presenting to the employer a   center: Pulmonary
 physician's written medical report             function testing (as
 indicating that the employee has been          outlined by the American
 confirmed positive or diagnosed with CBD, or   Thoracic Society
 recommending referral to a CBD diagnostic      criteria),
 center..                                       bronchoalveolar lavage
(ii) The employer must ensure that, as part     (BAL), and
 of the evaluation, the employee is offered     transbronchial biopsy.
 any tests deemed appropriate by the            The proposal also
 examining physician at the CBD diagnostic      specified the timing of
 center, such as pulmonary function testing     the initial
 (as outlined by the American Thoracic          consultation.
 Society criteria), bronchoalveolar lavage     This final rule's
 (BAL), and transbronchial biopsy. If any of    provisions differ from
 the tests deemed appropriate by the            those in the proposal.
 examining physician are not available at the   Specifically, OSHA
 CBD diagnostic center, they may be performed   revised paragraph
 at another location that is mutually agreed    (k)(7)(i) to require
 upon by the employer and the employee..        that the evaluation must
(iii) The employer must ensure that the         be scheduled within 30
 employee receives a written medical report     days, and must occur
 from the CBD diagnostic center that contains   within a reasonable
 all the information required in paragraph      time, of the employer
 (k)(5)(i), (ii), (iv), and (v) of this         receiving one of the
 standard and that the PLHCP explains the       types of documentation
 results of the examination to the employee     listed in paragraph
 within 30 days of the examination..            (k)(7)(i)(A) or (B).
(iv) The employer must obtain a written         Previously, the general
 medical opinion from the CBD diagnostic        industry standard
 center within 30 days of the medical           required employers to
 examination. The written medical opinion       provide the examination
 must contain only the information in           within 30 days of the
 paragraph (k)(6)(i), as applicable, unless     employer receiving one
 the employee provides written authorization    of the types of
 to release additional information. If the      documentation listed in
 employee provides written authorization, the   paragraph (k)(7)(i)(A)
 written opinion must also contain the          or (B).
 information from paragraphs (k)(6)(ii),       This final rule also
 (iv), and (v), if applicable..                 added a provision, in
(v) The employer must ensure that each          paragraph (k)(7)(ii),
 employee receives a copy of the written        which specifies that the
 medical opinion from the CBD diagnostic        employer must ensure
 center described in paragraph (k)(7) of this   that, as part of the
 standard within 30 days of any medical         evaluation, the employee
 examination performed for that employee..      is offered any tests
(vi) After an employee has received the         deemed appropriate by
 initial clinical evaluation at a CBD           the examining physician
 diagnostic center described in paragraphs      at the CBD diagnostic
 (k)(7)(i) and (ii) of this standard, the       center, such as
 employee may choose to have any subsequent     pulmonary function
 medical examinations for which the employee    testing (as outlined by
 is eligible under paragraph (k) of this        the American Thoracic
 standard performed at a CBD diagnostic         Society criteria),
 center mutually agreed upon by the employer    bronchoalveolar lavage
 and the employee, and the employer must        (BAL), and
 provide such examinations at no cost to the    transbronchial biopsy.
 employee..                                     The new provision also
                                                states that if any of
                                                the tests deemed
                                                appropriate by the
                                                examining physician are
                                                not available at the CBD
                                                diagnostic center, they
                                                may be performed at
                                                another location that is
                                                mutually agreed upon by
                                                the employer and the
                                                employee.
Sec.   1910.1024(n)(1)(i), (ii), & (iii)--     This final rule removed
 Recordkeeping--Air Monitoring Data.            the requirement for
(i) The employer must make and maintain a       collection and recording
 record of all exposure measurements taken to   of Social Security
 assess airborne exposure as prescribed in      numbers from this
 paragraph (d) of this standard..               provision. This change
(ii) This record must include at least the      was adopted as proposed.
 following information:.
    (A) The date of measurement for each
     sample taken;
    (B) The task that is being monitored;
    (C) The sampling and analytical methods
     used and evidence of their accuracy;
    (D) The number, duration, and results of
     samples taken;
    (E) The type of personal protective
     clothing and equipment, including
     respirators, worn by monitored employees
     at the time of monitoring; and
    (F) The name and job classification of
     each employee represented by the
     monitoring, indicating which employees
     were actually monitored.
(iii) The employer must ensure that exposure
 records are maintained and made available in
 accordance with the Records Access standard
 (29 CFR 1910.1020).
Sec.   1910.1024(n)(3)(i), (ii), & (iii)--     This final rule removed
 Recordkeeping--Medical Surveillance.           the requirement for
(i) The employer must make and maintain a       collection and recording
 record for each employee covered by medical    of Social Security
 surveillance under paragraph (k) of this       numbers from this
 standard..                                     provision. This change
(ii) The record must include the following      was adopted as proposed.
 information about the employee:.
    (A) Name and job classification;
    (B) A copy of all licensed physicians'
     written medical opinions for each
     employee; and
    (C) A copy of the information provided to
     the PLHCP as required by paragraph
     (k)(4) of this standard.
(iii) The employer must ensure that medical
 records are maintained and made available in
 accordance with the Records Access standard
 (29 CFR 1910.1020).

[[Page 42595]]

 
Sec.   1910.1024(n)(4)(i) & (ii)--             This final rule removed
 Recordkeeping--Training.                       the requirement for
(4) Training. (i) At the completion of any      collection and recording
 training required by this standard, the        of Social Security
 employer must prepare a record that            numbers from this
 indicates the name and job classification of   provision. This change
 each employee trained, the date the training   was adopted as proposed.
 was completed, and the topic of the
 training..
(ii) This record must be maintained for three
 years after the completion of training.
------------------------------------------------------------------------

VI. Federalism

    OSHA reviewed this rule in accordance with the Executive Order on 
Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which 
requires that federal agencies, to the extent possible, refrain from 
limiting state policy options, consult with states prior to taking any 
actions that would restrict state policy options, and take such actions 
only when clear constitutional and statutory authority exists and the 
problem is national in scope. Executive Order 13132 provides for 
preemption of state law only with the expressed consent of Congress. 
Any such preemption is to be limited to the extent possible.
    Under Section 18 of the OSH Act, 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 
Plans'' (29 U.S.C. 667). Occupational safety and health standards 
developed by State Plans must be at least as effective in providing 
safe and healthful employment and places of employment as the federal 
standards. Subject to these requirements, State Plans are free to 
develop and enforce under state law their own requirements for safety 
and health standards.
    OSHA previously concluded from its analysis for the 2017 final rule 
that promulgation of the beryllium standard complies with E.O. 13132 
(82 FR at 2633). The amendments in this final rule do not change that 
conclusion. In states without OSHA-approved State Plans, Congress 
expressly provides for OSHA standards to preempt state occupational 
safety and health standards in areas addressed by the federal 
standards. In these states, this rule limits state policy options in 
the same manner as every standard promulgated by OSHA. In states with 
OSHA-approved State Plans, this rulemaking does not significantly limit 
state policy options.

VII. State Plans

    When federal OSHA promulgates a new standard or more stringent 
amendment to an existing standard, the states and U.S. Territories with 
their own OSHA-approved occupational safety and health plans (State 
Plans) must promulgate a state standard adopting such new federal 
standard, or more stringent amendment to an existing federal standard, 
or an at least as effective equivalent thereof, within six months of 
promulgation of the new federal standard or more stringent amendment. 
The state may demonstrate that a standard change is not necessary 
because the state standard is already the same or at least as effective 
as the federal standard change. Because a state may include standards 
and standard provisions that are equally or more stringent than federal 
standards, it would generally be unnecessary for a state to revoke a 
standard when the comparable federal standard is revoked or made less 
stringent. To avoid delays in worker protection, the effective date of 
the state standard and any of its delayed provisions must be the date 
of state promulgation or the federal effective date, whichever is 
later. The Assistant Secretary may permit a longer time period if the 
state makes a timely demonstration that good cause exists for extending 
the time limitation (29 CFR 1953.5(a)).
    Of the 28 states and territories with OSHA-approved State Plans, 22 
cover public and private-sector employees: Alaska, Arizona, California, 
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, 
New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, 
Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The 
remaining six states and territories cover only state and local 
government employees: Connecticut, Illinois, Maine, New Jersey, New 
York, and the Virgin Islands.
    As discussed in detail below in Section XI, Summary and Explanation 
of the Final Rule, the majority of the changes made by this final rule 
will clarify certain provisions and simplify or improve employer 
compliance. After considering all of the changes made by this final 
rule and the record as a whole, OSHA believes that this final rule 
enhances employee safety, in part by revising provisions that may be 
misinterpreted. Therefore, OSHA has determined that, within six months 
of the rule's promulgation date, State Plans must review their state 
standards and adopt amendments to those standards that are at least as 
effective as the amendments to the beryllium general industry standard 
finalized herein, as required by 29 CFR 1953.5(a), unless the State 
Plans demonstrate that such amendments are not necessary because their 
existing standards are already at least as effective at protecting 
workers as this final rule. This decision is also informed by a comment 
from Materion Brush, Inc. (Materion), in which Materion argued that 
OSHA should require states to adopt the proposed changes (Document ID 
0038-A5, p. 2).\9\ No other stakeholders opined on this issue.
---------------------------------------------------------------------------

    \9\ OSHA notes that Materion also argued that the State Plans 
that have already adopted the original OSHA standard should be 
required to adopt the changes OSHA previously adopted in the 2018 
direct final rule, as well as the changes that result from the 
current rulemaking (Document ID 0038-A5, p. 1). Whether OSHA should 
require State Plans to adopt the changes made in the 2018 direct 
final rule is out of the scope of this rulemaking and, thus, will 
not be considered here.
---------------------------------------------------------------------------

VIII. Unfunded Mandates Reform Act

    OSHA reviewed this final rule according to the Unfunded Mandates 
Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and Executive Order 
13132 (64 FR 43255). As discussed above in Section IV, Final Economic 
Analysis and Regulatory Flexibility Act Certification (FEA), of this 
preamble, the agency determined that this final rule will not impose 
significant additional costs on any private- or public-sector entity. 
Further, OSHA previously concluded that the rule will not impose a 
federal mandate on the private sector in excess of $100 million 
(adjusted annually for inflation) in expenditures in any one year (82 
FR at 2634). Accordingly, this final rule will not require significant 
additional

[[Page 42596]]

expenditures by either public or private employers.
    As noted above under Section VII, State Plans, the agency's 
standards do not apply to state and local governments except in states 
that have elected voluntarily to adopt a State Plan approved by the 
agency. Consequently, this final rule does not meet the definition of a 
``federal intergovernmental mandate'' (see Section 421(5) of the UMRA 
(2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the agency 
certifies that this final rule will 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.

IX. Consultation and Coordination With Indian Tribal Governments

    OSHA has reviewed this final rule in accordance with Executive 
Order 13175 (65 FR 67249) and determined that it does not have ``tribal 
implications'' as defined in that order. This final 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.

X. Environmental Impacts

    OSHA has reviewed this final rule in accordance with the 
requirements of the National Environmental Policy Act of 1969 (NEPA) 
(42 U.S.C. 4321 et seq.), the Council on Environmental Quality NEPA 
regulations (40 CFR part 1500-1508), and the Department of Labor's NEPA 
procedures (29 CFR part 11). As a result of this review, OSHA has 
determined that this final rule will not have a significant impact on 
air, water, or soil quality; plant or animal life; the use of land; or 
aspects of the external environment.

XI. Summary and Explanation of the Final Rule

    On December 11, 2018, OSHA published a Notice of Proposed 
Rulemaking (83 FR 63746) (2018 NPRM) proposing changes to a number of 
provisions in the general industry beryllium standard. Following 
publication of the 2018 NPRM, a variety of stakeholders, including 
representatives of industry, labor, medical groups, public health 
organizations, federal and state government agencies, academia, trade 
associations, and private citizens, submitted comments on OSHA's 
proposed changes. After reviewing and carefully considering these 
comments and the remainder of the record, OSHA has decided to adopt the 
majority of the changes proposed, as well as additional changes that 
were prompted by the comments received. These changes clarify certain 
provisions and simplify or improve compliance for the other provisions 
of the standard. OSHA believes that these changes will maintain safety 
and health protections for workers and will further enhance worker 
protections by ensuring that the standard is well understood and 
implemented according to the agency's intent.
    The following discussion summarizes the comments received on the 
proposed changes to the general industry standard, lays out OSHA's 
responses to and final determinations regarding the issues in the 
comments, and explains each new or revised provision in this final rule 
including details on any modification made from the proposal. As 
discussed in detail below, the changes include the addition of one 
definition and modifications to five existing definitions in paragraph 
(b) and revisions to seven of the standard's other paragraphs, 
including paragraph (f), Methods of compliance; paragraph (h), Personal 
protective clothing and equipment; paragraph (i), Hygiene areas and 
practices; paragraph (j), Housekeeping; paragraph (k), Medical 
surveillance; paragraph (m), Communication of hazards; and paragraph 
(n), Recordkeeping. The final rule also replaces the 2017 standard's 
Appendix A with a new appendix designed to supplement the final 
standard's definition of beryllium work area.
    Definitions.
    Paragraph (b) of the beryllium standard for general industry 
provides definitions of key terms used in the standard. In this final 
rule, OSHA is changing or adding six terms in the definitions paragraph 
of the standard. The terms that OSHA is changing or adding are 
beryllium sensitization, beryllium work area, CBD diagnostic center, 
chronic beryllium disease, confirmed positive, and dermal contact with 
beryllium.
    Beryllium sensitization.
    OSHA is adding the following definition for beryllium 
sensitization: ``a response in the immune system of a specific 
individual who has been exposed to beryllium. There are no associated 
physical or clinical symptoms and no illness or disability with 
beryllium sensitization alone, but the response that occurs through 
beryllium sensitization can enable the immune system to recognize and 
react to beryllium. While not every beryllium-sensitized person will 
develop chronic beryllium disease (CBD), beryllium sensitization is 
essential for development of CBD.'' The agency is adding this 
definition to clarify other provisions in the standard, such as the 
definitions of chronic beryllium disease (CBD) and confirmed positive, 
as well as the provisions for medical surveillance in paragraph (k) and 
hazard communication in paragraph (m).
    This definition of beryllium sensitization is identical to the 
definition proposed in the 2018 NPRM and is consistent with information 
provided in the 2017 final beryllium rule (82 FR 2470). In the preamble 
to the 2017 final rule, OSHA found that individuals sensitized through 
either the dermal or inhalation exposure pathways respond to beryllium 
through the formation of a beryllium-protein complex, which then binds 
to T-cells stimulating a beryllium-specific immune response (82 FR at 
2494). The formation of the T-cell-beryllium-protein complex that 
results in beryllium sensitization rarely manifests in any outward 
symptoms (such as coughing or wheezing); most who are sensitized show 
no symptoms at all (see 82 FR at 2492, 2527). Once an individual has 
been sensitized, any subsequent beryllium exposures via inhalation can 
progress to serious lung disease through the formation of granulomas 
and fibrosis (see 82 FR at 2491-98). Since the pathogenesis of CBD 
involves a beryllium-specific, cell-mediated immune response, CBD 
cannot occur in the absence of sensitization (82 FR at 2492; see also 
NAS, 2008 (Document ID OSHA-H005C-2006-0870-1355)). Therefore, this 
definition's explanation that beryllium sensitization is essential for 
development of CBD is consistent with the agency's findings in the 2017 
final rule.
    Several commenters expressed support for OSHA's inclusion of a 
definition of beryllium sensitization in the beryllium general industry 
standard, including NJH (Document ID 0022, p. 2), the United 
Steelworkers (USW) (Document ID 0033, p. 1), Materion (Document ID 
0038, p. 8), the U.S. Department of Defense (DOD) (Document ID 0029, p. 
1), and Edison Electric Institute (EEI) (Document ID 0031, p. 2). 
According to the USW, the proposed definition is clear and accurate, 
and is necessary because the beryllium standard includes many 
provisions related to the recognition of and appropriate response to 
beryllium sensitization among beryllium-exposed workers (Document ID 
0033, p. 1).

[[Page 42597]]

Materion similarly commented that inclusion of the proposed definition 
in the standard would improve workers' and employers' understanding of 
this term (Document ID 0038, p. 4).
    While OSHA received no objections to including a definition of 
beryllium sensitization in the beryllium standard, several commenters 
suggested changes to the proposed definition. The National Supplemental 
Screening Program (NSSP) and NJH recommended that the definition of 
beryllium sensitization should include the following text, based on the 
ATS Statement on Beryllium: ``Beryllium sensitization is a response in 
the immune system of an individual who has been exposed to beryllium. A 
diagnosis of [beryllium sensitization] can be based on two abnormal 
blood BeLPTs, one abnormal and one borderline blood BeLPT, three 
borderline BeLPTs, or one abnormal bronchoalveolar lavage (BAL) BeLPT. 
Beryllium sensitization is essential for development of CBD'' (Document 
ID 0027 p. 1; 0022, p. 2; see also Document ID OSHA-H005C-2006-0870-
0364, pp. 1, 44). Neither organization, however, explained why this 
definition of beryllium sensitization should be used instead of the 
definition OSHA proposed.
    OSHA disagrees with this recommendation. The agency is providing a 
definition of beryllium sensitization to give stakeholders a general 
understanding of what beryllium sensitization is and its relationship 
to CBD. Information pertinent to medical identification of 
sensitization is provided in the definition of confirmed positive, 
which appears later in this section. OSHA has determined that the 
agency's definitions of beryllium sensitization and confirmed positive 
together provide the information suggested by NJH and the NSSP. The 
definition of confirmed positive explains how the results of BeLPT 
testing should be interpreted in the context of the standard's 
provisions that refer to that term, such as evaluation at a CBD 
diagnostic center and medical removal protection. The confirmed 
positive definition establishes that these benefits should be extended 
to workers who have a pattern of BeLPT results, obtained in a three-
year period, consistent with the NJH and the NSSP's recommended 
definition of beryllium sensitization. The remainder of the information 
suggested by NJH and the NSSP, which pertains to the relationship of 
beryllium sensitization to beryllium exposure, the immune system, and 
the development of CBD, is included in the definition of beryllium 
sensitization that OSHA proposed and is including in this final 
standard. For these reasons, OSHA has decided not to adopt the language 
suggested by NJH and the NSSP.
    The NSSP objected to the statement that no physical or clinical 
symptoms, illness, or disability are associated with beryllium 
sensitization alone, but did not explain the reason for their concern 
with this statement (Document ID 0027, p. 1). Materion supported the 
agency's inclusion of this information in the definition, stating that 
``employees deserve to understand that beryllium sensitization does not 
involve symptoms . . .'' (Document ID 0038, p. 5). The USW also 
specifically supported the accuracy of this section of OSHA's proposed 
definition of beryllium sensitization (Document ID 0033, p. 1).
    The agency has decided to retain this statement in the definition 
of beryllium sensitization because it is important that employers and 
employees understand the asymptomatic nature of beryllium sensitization 
and the need for specialized testing such as the BeLPT. The statement 
is consistent with OSHA's discussion of beryllium sensitization in the 
2017 final rule (82 FR at 2492-99). As OSHA discussed in the 2017 final 
rule, sensitization through dermal contact has sometimes been 
associated with skin granulomas, contact dermatitis, and skin 
irritation, but these reactions are rare and those sensitized through 
dermal exposure to beryllium typically do not exhibit any outward signs 
or symptoms (see 82 FR at 2488, 2491-92, 2527). OSHA determined that 
while beryllium sensitization rarely leads to any outward signs or 
symptoms, beryllium sensitization is an adverse health effect because 
it is a change to the immune system that leads to risk of developing 
CBD (82 FR at 2498-99). The agency believes that the asymptomatic 
nature of beryllium sensitization, especially in the lung, should be 
conveyed to employers and employees to emphasize why specialized 
testing such as the BeLPT should be provided to workers who may have no 
symptoms of illness associated with beryllium exposure. For these 
reasons, OSHA is retaining the statement ``[t]here are no associated 
physical or clinical symptoms and no illness or disability with 
beryllium sensitization alone'' in the definition of beryllium 
sensitization.
    The State of Washington Department of Labor and Industries, 
Division of Occupational Safety and Health (DOSH), commented that 
OSHA's proposed definition of beryllium sensitization places 
unnecessary emphasis on the role that beryllium sensitization plays in 
the development of CBD. According to DOSH, ``[t]his language may cause 
confusion with proper diagnosis of CBD and application of the rule 
requirements for workers who have developed CBD without a confirmed 
beryllium sensitization'' (Document ID 0023, p. 1). Other commenters, 
however, including NJH, the NSSP, and the USW, supported including the 
statement that beryllium sensitization is necessary for the development 
of CBD in OSHA's definition of beryllium sensitization (Document ID 
0022, p. 2; 0027, p. 1; 0033, p. 1).
    Following consideration of DOSH's comment, OSHA has determined that 
this information should remain in the definition of beryllium 
sensitization (as well as the definition of chronic beryllium disease, 
discussed later). OSHA believes that an understanding of the 
relationship between beryllium sensitization and CBD is key to workers' 
and employers' understanding of the beryllium standard. By including 
the role that sensitization plays in the development of CBD in the 
definition of beryllium sensitization, OSHA intends to make a number of 
things clear to workers and employers: That beryllium sensitization, 
although not itself a disease, is nevertheless an adverse health effect 
that presents a risk for developing CBD and thus should be prevented; 
the need to identify beryllium sensitization through regular medical 
screening; and why workers who are confirmed positive should be offered 
specialized medical evaluation and medical removal protection. OSHA 
notes that DOSH does not dispute the factual accuracy of OSHA's 
statement regarding the role beryllium sensitization plays in the 
development of CBD, which the agency established in the Health Effects 
section of the 2017 final rule (82 FR at 2495-96).
    Nevertheless, OSHA agrees with DOSH that it is not always necessary 
to identify a worker as beryllium sensitized by the BeLPT as part of a 
diagnosis of CBD, and the agency acknowledges that some sensitized 
individuals may not be confirmed positive for beryllium sensitization 
by BeLPT testing. OSHA established in the Health Effects section of the 
preamble to the 2017 final rule that while BeLPT testing is helpful to 
identify workers at risk for CBD and to differentiate CBD from 
respiratory diseases with similar clinical presentation, CBD can be 
diagnosed in the absence of a confirmed positive BeLPT (see 82 FR at 
2499-5002) (discussing a number of studies conducted prior to the 
development of the BeLPT). At least one study in the rulemaking record 
found that some

[[Page 42598]]

beryllium workers who would not have been confirmed positive by their 
BeLPT results were found to be sensitized via the BAL BeLPT and went on 
to develop CBD (Newman et al., 2001, Document ID OSHA-H005C-2006-0870-
1354, p. 234). Other studies indicate that the BeLPT has a false-
negative rate of approximately 25-28 percent (that is, approximately 
25-28 percent of individuals who have a single normal BeLPT result are 
in fact sensitized) (Middleton et al., 2011, Document ID OSHA-H005C-
2006-0870-0399, p. 2 (25 percent); Stange et al., 2004, Document ID 
OSHA-H005C-2006-0870-1402, p. 457 (27.7 percent)). Because the BeLPT 
itself may have a false-negative result and because other means exist 
to diagnose CBD apart from the BeLPT, examining physicians should have 
the latitude to diagnose CBD in the absence of a ``confirmed positive'' 
pattern of BeLPT results. Moreover, as discussed below, the 
determination that an employee is ``confirmed positive'' under the 
beryllium standard acts only as a trigger for medical monitoring and 
surveillance and OSHA does not intend the phrase ``confirmed positive'' 
to be interchangeable with ``beryllium sensitized.''
    The standard provides a mechanism for an employee to be referred to 
a CBD diagnostic center and diagnosed with CBD, even in the absence of 
a confirmed positive blood BeLPT result. Under paragraph (k)(5)(iii), 
the licensed physician can recommend referral to a CBD diagnostic 
center if he or she deems it appropriate. As OSHA explained in the 
preamble to the 2017 final rule, the licensed physician could recommend 
an evaluation at a CBD diagnostic center based on questionable BeLPT 
findings (82 FR at 2714). For example, in a scenario where an employee 
has repeating borderline or abnormal results but does not meet the 
definition for confirmed positive, referral to a CBD diagnostic center 
may be appropriate.
    Furthermore, the standard does not specify how CBD is diagnosed and 
gives the licensed physician at the CBD diagnostic center discretion 
for making that diagnosis, including by means other than blood BeLPT 
results. The diagnostic criteria for CBD include (1) history of 
beryllium exposure; (2) histopathological evidence of non-caseating 
granulomas or mononuclear cell infiltrates in the absence of infection; 
and (3) positive blood or BAL BeLPT (82 FR at 2500; see also Newman et 
al., 1989 (Document ID OSHA-H005C-2006-0870-0196, p. 1480)). The 
availability of transbronchial lung biopsy facilitates the evaluation 
of the second criterion, by making histopathological confirmation 
possible in almost all cases (82 FR at 2500). The ATS has noted that 
the BAL BeLPT can be useful in diagnosing CBD in individuals who have 
normal blood BeLPT results and considers one positive BAL BeLPT 
sufficient for the diagnosis of beryllium sensitization (Document ID 
OSHA-H005C-2006-0870-0364, pp. 44-45). OSHA expects that the licensed 
physician might apply such criteria in the diagnosis of CBD, without 
relying on a confirmed positive finding based on blood BeLPT results.
    In summary, OSHA believes that emphasizing the role that beryllium 
sensitization plays in the development of CBD provides employers and 
employees with important context for understanding the beryllium 
standard. At the same time, the agency acknowledges that employees may 
be diagnosed with CBD in the absence of a confirmed positive BeLPT, and 
the beryllium standard allows for such a diagnosis. Thus, following 
consideration of the record of comments on OSHA's proposed definition 
of beryllium sensitization, the agency is finalizing the definition as 
proposed in the 2018 NPRM. The addition of this definition for 
beryllium sensitization does not change employer obligations under 
paragraphs (k) and (m) and, therefore, OSHA expects that the new 
definition will maintain safety and health protections for workers.
    Beryllium work area.
    Paragraph (b) of the final rule defines beryllium work area as any 
work area where materials that contain at least 0.1 percent beryllium 
by weight are processed either: (1) During any of the operations listed 
in Appendix A of the standard; or (2) where employees are, or can 
reasonably be expected to be, exposed to airborne beryllium at or above 
the action level. The presence of a beryllium work area triggers a 
number of requirements in the standard. These include the requirements 
under paragraphs (e)(1)(i) and (2)(i) to establish, maintain, and 
demarcate the boundaries of each beryllium work area, as well as 
requirements under paragraphs (f)(1)(i)(D) and (F), written exposure 
control plan requirements; paragraph (f)(2)(ii), required exposure 
controls; paragraphs (i)(1) and (2), general hygiene practices and 
change rooms requirements; paragraphs (j)(1)(i) and (2), housekeeping 
requirements; and paragraph (m)(4)(ii)(B), employee training. The 
establishment of beryllium work areas serves to ensure that employees 
and other persons are aware of the potential presence of airborne 
beryllium; to control access to these areas; and in conjunction with 
other provisions such as the written control plan, hygiene, and 
housekeeping requirements, to minimize the transfer of beryllium to 
other areas of the facility and reduce the potential for exposure to 
other employees.
    The term beryllium work area (as revised in the 2018 direct final 
rule) was defined as any work area (1) containing a process or 
operation that can release beryllium and that involves material that 
contains at least 0.1 percent beryllium by weight; and, (2) where 
employees are, or can reasonably be expected to be, exposed to airborne 
beryllium at any level or where there is the potential for dermal 
contact with beryllium. That definition was developed in response to 
stakeholder comments on the 2015 NPRM, which had proposed to define a 
beryllium work area as any work area where there is potential for 
exposure to airborne beryllium at any level, and which did not include 
dermal contact as a trigger for establishment of a beryllium work area. 
Some stakeholders argued that the definition proposed in the 2015 NPRM 
was overly broad and could be interpreted as applying to most or all 
areas of a worksite, regardless of the work processes or operations 
occurring in those areas. Commenters also expressed concern that the 
definition was vague and should be triggered on a measurable threshold 
of exposure. NIOSH commented that the proposed definition's focus on 
airborne beryllium did not account for the potential contribution of 
dermal exposures to total exposure (82 FR at 2659).
    In response to these comments, OSHA modified the definition in the 
2017 final rule to require the presence of a beryllium-releasing 
process. The agency explained in the preamble that triggering the 
requirement of creating a beryllium work area on a specific threshold 
level of exposure would be insufficiently protective of workers, but 
also explained that the agency did not intend for a beryllium work area 
to be established in areas where work processes or operations that 
release beryllium do not occur, such as where employees handle articles 
containing beryllium (82 FR at 2659-60). Rather, the purpose of 
establishing beryllium work areas is to identify and demarcate areas 
within a facility where processes or operations release beryllium so 
that necessary control measures can be implemented, such as those 
designed to prevent the migration of beryllium to other areas where 
beryllium is not processed or released. OSHA clarified this intent by 
defining a beryllium work

[[Page 42599]]

area as an area that contains processes or operations that release 
beryllium to which workers could be exposed. Additionally, OSHA 
accounted for NIOSH's concern by including the potential for dermal 
contact with beryllium in the definition (see 82 FR at 2658-60).
    In the preamble to the 2017 final rule, however, OSHA disagreed 
with commenters who claimed that the proposed definition of beryllium 
work area was impermissibly vague. The agency explained that, by 
limiting the trigger for beryllium work areas to exposures generated 
from a beryllium-releasing process or operation within the area, the 
definition made clear that the requirements were not triggered solely 
on the fact that an employee may be handling solid material containing 
beryllium. Additionally, any employer who had doubts about whether a 
process was releasing beryllium or created the potential for dermal 
contact with beryllium could use air sampling or wipe sampling to 
determine where the boundary of a beryllium work area should be 
established. OSHA reasoned that, rather than rendering the provision 
vague, defining a beryllium work area in a performance-based manner 
left employers flexibility in complying with the standard (82 FR at 
2659).
    Nevertheless, following publication of the 2017 standard, OSHA 
continued to hear from stakeholders that the definition of beryllium 
work area remained a source of substantial uncertainty and confusion. 
Some stakeholders expressed concern that defining a beryllium work area 
to include any area where unspecified processes can reasonably be 
expected to generate any level of airborne beryllium, or where there is 
a process or operation that can release beryllium or the potential for 
dermal contact with beryllium, could lead to the designation of entire 
facilities as beryllium work areas because minute quantities of 
beryllium can sometimes be detected in areas of a facility far distant 
from the work processes that create beryllium exposures. Stakeholders 
requested that OSHA provide a list of operations that are known to 
release airborne beryllium, which would allow employers to more 
accurately identify where beryllium work areas must be established and 
demarcated at their workplaces. As described in more detail below, 
stakeholders also requested that ``dermal contact'' be removed from the 
definition of beryllium work area.
    In response to this feedback, OSHA proposed in this rulemaking to 
modify the definition of beryllium work area to provide clarity for 
employers on where and when to establish a beryllium work area. First, 
OSHA proposed a new appendix to the standard (Appendix A), containing 
Table A.1, which includes a list of operations that are commonly 
performed when processing beryllium materials and are known to generate 
airborne beryllium. OSHA proposed to revise the definition of beryllium 
work area so that any work area where an operation that is listed in 
proposed Appendix A occurs, and involves materials containing at least 
0.1 percent beryllium by weight, is a beryllium work area. For work 
areas where no operations listed in proposed Appendix A occur, the 
proposed definition would require a beryllium work area wherever 
materials containing at least 0.1 percent beryllium by weight are 
processed and where employees are, or can be reasonably expected to be, 
exposed to airborne beryllium at or above the action level. The list of 
operations in Table A.1 was compiled based on the experience of 
Materion, the primary beryllium manufacturer in the United States, and 
the USW, the primary union representing employees with beryllium 
exposure.\10\ As noted in the preamble to the 2018 NPRM, OSHA intends 
the list to cover all operations and processes that have the potential 
for exposure to airborne beryllium (83 FR at 63761).
---------------------------------------------------------------------------

    \10\ Table A.1 is divided into three categories: (1) Beryllium 
Metal Alloy Operations (generally <10% beryllium by weight); (2) 
Beryllium Composite Operations (generally >10% beryllium by weight) 
and Beryllium Metal Operations; and (3) Beryllium Oxide Operations.
---------------------------------------------------------------------------

    Second, OSHA proposed to remove the reference to dermal contact 
from the definition of the term beryllium work area. OSHA preliminarily 
determined that this change would make it less likely that the 
definition could be misinterpreted as extending to areas of a facility 
where work processes or operations that release beryllium do not occur 
or even to entire facilities (83 FR at 63749). Further, the agency 
explained that it was unaware of beryllium-releasing processes or 
operations that have a potential for dermal contact that are not 
included in the proposed Appendix A or do not generate airborne 
exposures at or above the action level (83 FR at 63749). Therefore, 
OSHA preliminarily determined that the proposed change would be as 
protective as the previous definition, while more clearly avoiding the 
erroneous perception that the standard would require employers to treat 
entire facilities as beryllium work areas.
    Comments submitted in response to the NPRM showed general support 
from employers, unions, and public health experts for OSHA's proposed 
approach and for providing better clarity with respect to beryllium 
work areas (Document ID 0017; 0022, pp. 6-7; 0029, p. 1; 0033, pp. 1-4; 
0038, pp. 8-9). For example, the USW agreed with OSHA that the 
revisions proposed in the NPRM would make the definition more precise 
and help to ensure that employers can appropriately comply with the 
standard. The USW stated that the proposed definition ``provides 
employers with a clearer means of understanding when and where 
demarcation is required'' for beryllium work areas (Document ID 0033, 
p. 2). Materion likewise indicated that this new approach ``greatly 
improves and simplifies an understanding of where beryllium work areas 
should be in a facility, allowing employers and employees to know and 
understand how to comply with the requirement to establish these 
protective work areas'' (Document ID 0038, p. 9).
    While there was general support for this proposed approach to 
beryllium work areas, several commenters expressed concerns about 
various aspects of the new definition and new Appendix A. For example, 
DOSH agreed that the addition of a new Appendix A would provide clarity 
to the beryllium work area requirements but expressed concern that 
removal of the dermal contact trigger would reduce worker protections. 
DOSH suggested the use of a defined lower limit for beryllium 
contamination on surfaces that would address this concern while 
maintaining the protection for workers (Document ID 0023, pp. 1-2).
    OSHA does not agree that removing the reference to dermal contact 
from the definition of the term beryllium work area reduces 
protections. As noted above and explained in both the preambles to the 
2017 final rule and the 2018 NPRM, OSHA's intent was to capture those 
areas of a facility where beryllium-generating processes or operations 
are located; OSHA never intended for dermal contact alone to trigger 
the standard's beryllium work area requirements (82 FR at 2659; 83 FR 
at 63748). Contrary to DOSH's assertion, the requirement to establish a 
beryllium work area was dependent on the presence of a process or 
operation that can release beryllium and that involves material that 
contains at least 0.1 percent beryllium by weight in the area in 
question; exposure alone, whether airborne or dermal, was never a 
trigger for the beryllium work area requirements.
    Moreover, again as noted above, OSHA explained in the 2018 NPRM 
that it did not know of any beryllium-releasing processes or operations 
with

[[Page 42600]]

the potential for dermal contact that are not included in the proposed 
Appendix A or that do not generate airborne exposures at or above the 
action level. Put more simply, OSHA was unaware of any situation where 
an employer would be required to establish a beryllium work area under 
the previous definition but would not be required to do so under the 
proposed definition. However, in the interest of caution, OSHA asked 
stakeholders specifically whether there are any operations or processes 
that trigger beryllium work areas under the previous definition that 
would not be covered under the proposed definition (83 FR at 63749). 
Commenters did not point to any such processes. On the contrary, the 
only stakeholder to squarely address this issue, Materion, noted that 
it too was ``unaware of work areas containing beryllium-releasing 
processes or operations that have a potential for dermal contact that 
are not included in the proposed Appendix A or generate airborne 
exposures at or above the action level'' (Document ID 0038 p. 13).
    Furthermore, another stakeholder, the USW commented that it 
supported OSHA's proposed removal of the reference to dermal contact 
from the definition of the term beryllium work area (Document ID 0033, 
p. 3). The USW stated that it does not have reservations about the 
proposed change and explained its belief ``that dermal exposure is 
properly addressed elsewhere in the standard'' (Document ID 0033, pp. 
1-3). According to the USW, ``[a]lthough dermal exposure to beryllium 
is important and must be properly addressed, removal of dermal exposure 
from this definition will reduce the confounding factors that might 
result in unnecessarily extending beryllium work areas beyond needed 
portions of a workplace'' (Document ID 0033, p. 3).
    In addition, DOSH did not explain why it believes the change would 
reduce worker protections. Given that DOSH did not point to any 
particular loss of worker protection and the lack of evidence of any 
differences between the coverage of the two definitions, OSHA has 
decided to adopt the proposed definition, which commenters have 
indicated reduces the confusion caused by the previous definition. OSHA 
expects the revised definition to provide clarity on the proper 
boundaries of a beryllium work area. Employers are required by 
paragraph (j)(1), in conjunction with paragraph (f)(1), to minimize the 
migration of beryllium from beryllium work areas, and clearly defining 
the beryllium work area ensures employees working outside of these 
areas receive the protective benefits of these requirements. If a 
beryllium work area is defined overly broadly, then more employees may 
inadvertently be exposed to beryllium within the beryllium work area 
and would not receive some of these benefits. Moreover, as stated in 
the 2018 NPRM, PPE requirements to protect against dermal exposure to 
beryllium do not depend on the existence of a beryllium work area. The 
standard requires employers to provide and ensure the use of 
appropriate PPE whenever there is a reasonable expectation of dermal 
contact with beryllium, regardless of whether or not the area is a 
beryllium work area (see 83 FR at 63749).
    OSHA also does not agree with DOSH that a lower limit for beryllium 
contamination on surfaces is necessary as a trigger for establishing a 
beryllium work area. In the 2017 final rule, OSHA chose not to set 
quantitative limits for surface contamination because the best 
available scientific evidence on adverse health effects from dermal 
contact with beryllium made it difficult to identify an appropriate 
limit for surface contamination (82 FR at 2688). This remains the case 
today. OSHA discusses the limitations of this data more fully below in 
the Summary and Explanation of the definition of dermal contact with 
beryllium.
    Two commenters objected to the exemption for materials that contain 
less than 0.1 percent beryllium from the definition of beryllium work 
area (Document ID 0022, p. 7; 0027, p. 2). However, OSHA incorporated 
this change in the 2018 direct final rule. At the time, OSHA explained 
that it was never the agency's intent that the requirements related to 
beryllium work areas apply to these materials (83 FR 19936, 19938 (May 
7, 2018)). OSHA did not receive any adverse comments on the direct 
final rule and therefore finalized the change. The 2018 NPRM did not 
propose to amend this portion of the definition and therefore comments 
related to the 0.1 percent limitation are not within the scope of this 
rulemaking.
    OSHA also received comments on the new Appendix A. NJH expressed 
concerns that the proposed list of operations in Appendix A was geared 
toward manufacturing and that it ``may restrict employers' 
interpretations of a beryllium work area and prevent employees from the 
protections afforded by the beryllium standard. Employers may only 
consider these featured tasks as those that dictate a beryllium work 
area, when other tasks may be considered as such'' (Document ID 0022, 
pp. 6-7). OSHA believes NJH's concern is misplaced. First, OSHA 
requested comment on whether there were additional operations that 
should be included on the list of operations in Appendix A, and no 
suggestions for additional operations were put forth by commenters. 
More importantly, the final standard requires that a beryllium work 
area be established if exposures can reasonably be expected to exceed 
the action level where materials that contain at least 0.1 percent 
beryllium by weight are processed, regardless of whether the operation 
is listed in Appendix A. As the USW noted, this requirement ``provides 
a backstop for any unforeseen operation which can expose employees 
above the action level'' (Document ID 0033, p. 2). Thus, employees who 
may be exposed above the action level during a process not listed in 
Appendix A will still receive the protections afforded by the beryllium 
work area requirements.
    DOD, while generally supportive of the proposed definition of 
beryllium work area, expressed some concerns about Appendix A (Document 
ID 0029, p. 1). First, DOD suggested, without explanation, that OSHA 
remove the word ``generally'' from the description of the table in 
Appendix A, which describes beryllium metal alloy operations as being 
``generally < 10% beryllium by weight'' and beryllium composite 
operations as being ``generally > 10% beryllium by weight.'' OSHA 
disagrees with this suggestion. The table in Appendix A reflects 
materials that are on the market today. However, the inclusion of the 
word ``generally'' accounts for the possibility of beryllium metal 
alloy operations and beryllium composite operations involving different 
materials. Thus, if alloys are developed with greater than 10 percent 
beryllium or composites less than 10 percent beryllium, these materials 
will be covered under Table A.1. Because OSHA does not intend to limit 
Table A.1 to processes involving only those materials on the market 
today, the agency is retaining the word ``generally'' in the 
description of the tables in Appendix A.\11\
---------------------------------------------------------------------------

    \11\ The agency notes that DOD's comment suggests there might be 
some confusion as to whether beryllium alloys and beryllium 
composites are analogous. In fact, these materials have different 
structures and should be treated differently from a control strategy 
point of view. A metal alloy is a metal which is a homogeneous 
mixture of two or more metals or of a metal and another element to 
provide unique characteristics or properties (see https://www.thefreedictionary.com/Metal+alloy). A ``beryllium composite,'' 
on the other hand, is a metal matrix composite or (MMC) which 
typically contain at least two distinct constituent parts (see 
https://www.azom.com/article.aspx?ArticleID=9843).

---------------------------------------------------------------------------

[[Page 42601]]

    DOD, along with DOSH, also questioned the deletion of the Appendix 
A published with the 2017 final beryllium rule. That old appendix 
provided non-mandatory general control strategies for common 
operations. These commenters thought that the old appendix was useful 
and should be retained in the standard (Document ID 0029, p. 1; 0023, 
p. 3). OSHA agrees that the old appendix contained useful information, 
but expects that in time it would have become either obsolete or 
incomplete. Instead, OSHA plans to provide this information about 
general control strategies in guidance materials tailored to reach the 
targeted audience. This will make it easier to update as new 
technologies or beryllium processes become available.
    In addition, under paragraph (f)(2), Engineering and work 
practices, employers are obligated to use engineering controls in 
beryllium work areas. OSHA requires employers to use at least one type 
of control that is listed in paragraph (f)(2)(ii) (substitution, 
isolation, local exhaust ventilation, or process controls) unless 
controls are infeasible or exposures are demonstrated to be below the 
action level. These general controls are the same types of controls 
that were listed in Appendix A and are required regardless of whether 
that appendix is retained. For these reasons, this final standard does 
not retain the old Appendix A.
    Materion fully supported the proposed changes to the beryllium work 
area definition and the proposed Appendix A. However, it noted a 
typographical error in Appendix A for ``High Speed Machining (<= 10,000 
rpm),'' which should be (> 10,000 rpm) (Document ID 0038, p. 10). OSHA 
agrees that the entry in the NPRM's Appendix A is incorrect and made 
the appropriate correction in this final rule.
    After careful consideration of the record, OSHA has determined that 
the revised definition of beryllium work area will improve compliance 
with the standard by providing greater clarity to employers regarding 
when and where beryllium work areas should be established in the 
workplace. The agency further finds that properly identifying beryllium 
work areas will reduce potential exposure for workers outside of these 
areas through the various provisions triggered by beryllium work areas. 
In sum, OSHA has determined that the revision to the definition of 
beryllium work area will ensure that the standard's requirements 
related to beryllium work areas are workable and properly understood. 
Therefore, OSHA has decided to finalize the definition of beryllium 
work area and the corresponding update to Appendix A as proposed, with 
the exception of correcting the typographical error in Appendix A noted 
by Materion.
    CBD diagnostic center.
    OSHA is amending the 2017 final rule's definition of CBD diagnostic 
center to clarify certain requirements used to qualify an existing 
medical facility as a CBD diagnostic center. The clarification does not 
change the requirement for the employer to offer a follow-up 
examination at a CBD diagnostic center to employees meeting the 
criteria set forth in paragraph (k). OSHA is defining CBD diagnostic 
center to mean a medical diagnostic center that has a pulmonologist or 
pulmonary specialist on staff and on-site facilities to perform a 
clinical evaluation for the presence of CBD. The revised definition 
also states that a CBD diagnostic center must have the capacity to 
perform pulmonary function testing (as outlined by the American 
Thoracic Society criteria), bronchoalveolar lavage (BAL), and 
transbronchial biopsy. In the revised definition, the CBD diagnostic 
center must also have the capacity to transfer BAL samples to a 
laboratory for appropriate diagnostic testing within 24 hours and the 
pulmonologist or pulmonary specialist must be able to interpret the 
biopsy pathology and the BAL diagnostic test results. This definition 
is identical to the definition of CBD diagnostic center that OSHA 
proposed in the 2018 NPRM.
    The revised definition of CBD diagnostic center differs from the 
former definition in a number of ways. First, whereas the 2017 final 
rule's definition specified only that a CBD diagnostic center must have 
a pulmonary specialist, OSHA is adding the term ``pulmonologist'' to 
clarify that either type of specialist is qualified to perform a 
clinical evaluation for the presence of CBD. Additionally, the 2017 
definition required that a CBD diagnostic center have an on-site 
pulmonary specialist. The revised definition states that the CBD 
diagnostic center must simply have a pulmonologist or pulmonary 
specialist on staff. This clarifies OSHA's intent that a specialist 
must be available to the CBD diagnostic center but need not necessarily 
be on site at all times.
    In their comments on the 2018 NPRM, two commenters, NJH and the 
ATS, recommended that a pulmonologist, occupational medicine 
specialist, or physician with expertise in beryllium disease should 
conduct the clinical evaluation for CBD and that a pulmonologist should 
be on staff or available to perform the bronchoscopy (Document ID 0022, 
p. 2; 0021, p. 2). According to NJH, clinics that regularly evaluate 
patients for CBD have physicians with experience in occupational health 
conduct the clinical evaluation for CBD, in conjunction with a 
pulmonologist who performs a bronchoscopy (Document ID 0022, pp. 2-3).
    OSHA notes that, although the agency is requiring facilities to 
have a pulmonologist or pulmonary specialist on staff who is able to 
interpret the biopsy pathology and the BAL diagnostic test results, 
OSHA does not intend that all aspects of clinical evaluation for CBD 
must be performed by a pulmonologist or pulmonary specialist. In the 
preamble to the 2017 final rule, OSHA explained that the agency was 
defining a CBD diagnostic center as a facility with a pulmonary 
specialist ``on-site'' specifically to indicate that the specialist 
need not personally perform the BeLPT testing (82 FR at 2645). 
Moreover, paragraph (k)(7), which sets out the substantive requirements 
for the evaluation at the CBD diagnostic center, refers to 
recommendations of the ``examining physician,'' not necessarily the 
pulmonologist or pulmonary specialist.
    Paragraph (b), in turn, defines physician or other licensed health 
care professional (PLHCP) as an individual licensed to provide some or 
all of the services required by paragraph (k). As such, some parts of 
the evaluation, such as lung function tests, might be performed by a 
certified medical professional other than a pulmonologist or pulmonary 
specialist. The arrangement that NJH describes as typical for clinics 
treating CBD patients, in which physicians with experience in 
occupational health conduct the clinical evaluation for CBD in 
conjunction with a pulmonologist who performs a bronchoscopy, is 
consistent with OSHA's intent for the definition of CBD diagnostic 
center and other provisions of the standard related to CBD diagnosis. 
Therefore, OSHA has determined that it is not necessary to revise the 
definition of CBD diagnostic center to require that the clinical 
evaluation for CBD be conducted by a pulmonologist, occupational 
medicine specialist, or physician with expertise in beryllium disease.
    An additional change to the definition of CBD diagnostic center 
clarifies that the diagnostic center must have the capacity to perform 
pulmonary function testing (according to American Thoracic Society 
criteria), bronchoalveolar lavage (BAL), and tranbronchial biopsy. OSHA 
determined that the former definition--which stated that the evaluation 
at the

[[Page 42602]]

diagnostic center ``must include'' these tests--could have been 
misinterpreted to mean that the examining physician was required to 
perform each of these tests during every clinical evaluation at a CBD 
diagnostic center. The agency's intent is not to dictate which tests an 
evaluation at a CBD diagnostic center should include, but to ensure 
that any CBD diagnostic center has the capacity to perform any of these 
tests, which are commonly needed to diagnose CBD. OSHA expects that 
these are the tests that would most commonly be requested for a CBD 
evaluation. Therefore, the agency is revising the definition to clarify 
that the CBD diagnostic center must simply have the ability to perform 
each of these tests when deemed appropriate. These changes clarify the 
definition of CBD diagnostic center, and OSHA expects they will 
maintain safety and health protections for workers.
    Materion submitted comments supporting OSHA's intent to specify the 
required capacities of a CBD diagnostic center, rather than the 
contents of a CBD evaluation, in the definition of CBD diagnostic 
center (Document ID 0038, pp. 16-17). NJH expressed concern that this 
change to the definition may indicate that the clinical evaluation for 
CBD need not include certain aspects of a CBD evaluation, which NJH, 
the Association of Occupational and Environmental Clinics (AOEC), and 
the ATS recommend should typically include full pulmonary function 
testing (lung volumes, spirometry, and diffusion capacity for carbon 
monoxide), chest imaging, and cardiopulmonary exercise testing, and may 
also include bronchoscopy in some cases (Document ID 0022, p. 3; 0028, 
p. 2; 0021, pp. 1-2). Similarly, the ATS commented that not requiring 
certain diagnostic tests ``could reduce the potential to diagnose CBD 
and determine disease severity'' (Document ID 0021, p. 3). NJH 
recommended that OSHA require the ATS recommendations for diagnostic 
evaluation, which the NJH stated include the BeLPT; pulmonary function 
testing and chest imaging; and in some cases bronchoscopy (Document ID 
0022, p. 3).
    As explained below in the Summary and Explanation of paragraph 
(k)(7), that provision--which establishes the substantive requirements 
for the evaluation at the CBD diagnostic center--makes clear that the 
employer must offer any tests that the examining physician at the CBD 
diagnostic center deems appropriate. The definition of CBD diagnostic 
center in paragraph (b) does not alter this requirement. In light of 
paragraph (k), the revised definition of CBD diagnostic center cannot 
reasonably be read to limit the types of tests available to the 
employee (see the Summary and Explanation for paragraph (k)(7) for a 
full discussion of this topic). Thus, after considering these comments, 
OSHA has decided to retain the proposed change to the definition of CBD 
diagnostic center.
    Chronic beryllium disease (CBD).
    OSHA is also amending the definition of chronic beryllium disease. 
For the purposes of this standard, the agency is using the term chronic 
beryllium disease to mean a chronic granulomatous lung disease caused 
by inhalation of airborne beryllium by an individual who is beryllium 
sensitized. OSHA is finalizing the definition as proposed. It includes 
several changes to the 2017 final rule's definition of chronic 
beryllium disease, which was ``a chronic lung disease associated with 
exposure to airborne beryllium'' (82 FR at 2645-46). The revisions 
serve to differentiate CBD from other respiratory diseases associated 
with beryllium exposure (e.g., lung cancer) and to make clear that 
beryllium sensitization and the presence of beryllium in the lung are 
essential in the development of CBD (see 82 FR at 2492).
    First, OSHA is adding the term ``granulomatous'' to the definition. 
A granulomatous lung formation is a focal collection of inflammatory 
cells (e.g., T-cells) creating a nodule in the lung (see Ohshimo et 
al., 2017, Document ID OSHA-H005C-2006-0870-2171, p. 2). The formation 
of the type of lung granuloma specific to a beryllium immune response 
can occur only in those with CBD (82 FR at 2492-2502). Next, OSHA is 
removing the phrase ``associated with airborne exposure to beryllium'' 
and replacing it with ``caused by inhalation of airborne beryllium.'' 
This change is more consistent with the findings in the 2017 final rule 
that beryllium is the causative agent for CBD and that CBD occurs only 
after inhalation of beryllium (82 FR at 2513). Finally, OSHA is 
clarifying that CBD is caused by inhalation of airborne beryllium ``by 
an individual who is beryllium sensitized.'' Along with the revised 
definition of beryllium sensitization discussed above, this revision 
emphasizes to employers and employees the role that beryllium 
sensitization plays in the development of CBD.
    NJH, the USW, and Materion agreed with OSHA that the 2017 final 
standard's definition of chronic beryllium disease should be clarified. 
Materion supported the changes OSHA proposed, which it characterized as 
a necessary clarification to ensure the definition provided is specific 
to chronic beryllium disease (Document ID 0038, p. 17). The USW 
similarly supported the proposed definition, stating that it clarifies 
the previous definition which ``could be read to apply to any chronic 
lung disease caused by beryllium, including lung cancer'' (Document ID 
0033, p. 5). These comments reinforce OSHA's determination that adding 
the term ``granulomatous'' to the definition will better distinguish 
CBD from other occupationally associated chronic pulmonary diseases. As 
OSHA explained in the preamble to the 2017 final rule, the formation of 
the type of lung granuloma specific to a beryllium immune response can 
occur only in those with CBD (82 FR at 2492-2502).
    Several commenters expressed concern that the proposed definition 
of chronic beryllium disease does not provide sufficient information to 
guide diagnosis of CBD, and specifically that OSHA's emphasis on the 
role of sensitization in the development of CBD may confuse diagnostic 
efforts. The ATS noted that demonstrating beryllium sensitization may 
be challenging in certain settings and recommended that OSHA's 
definition of chronic beryllium disease use the diagnostic criteria for 
CBD outlined in a 2014 ATS document on diagnosis and management of 
beryllium sensitivity and CBD (``the ATS Statement''). These diagnostic 
criteria include confirmation of an immune response to beryllium and 
granulomatous lung inflammation using lung biopsy and emphasize the 
various approaches which may be used ``[d]epending on the clinical 
setting, feasibility of certain diagnostic tests, and degree of 
diagnostic certainty needed'' (Document ID 0021, p. 5). DOSH similarly 
emphasized that individuals may be diagnosed with CBD without a 
confirmed positive BeLPT result and advocated that the definition of 
chronic beryllium disease ``ensure employers and medical providers are 
given a clear expectation of how beryllium conditions are properly 
identified'' (Document ID 0023, p. 2).
    OSHA notes that the standard's definition of chronic beryllium 
disease is not intended to provide criteria for the diagnosis of CBD. 
The agency's intent is to provide readers who may have little or no 
familiarity with CBD with a general understanding of the term, rather 
than to provide diagnostic criteria for healthcare professionals in 
addressing CBD.
    Due to differences in individual cases and circumstances, medical 
specialists may need to apply somewhat different

[[Page 42603]]

testing regimens and/or diagnostic criteria to different individuals 
they evaluate for CBD. Furthermore, the diagnostic tools and criteria 
available to medical specialists may change over time. As discussed in 
the Summary and Explanation for paragraph (k)(7), OSHA believes that 
the physician at the CBD diagnostic center should have the latitude to 
use any tests he or she deems appropriate for the purpose of diagnosing 
or otherwise evaluating CBD in a patient, and has revised paragraph 
(k)(7) to make this clear. Therefore, OSHA has determined that it is 
neither necessary nor appropriate to specify diagnostic criteria in the 
beryllium standard's definition of chronic beryllium disease. Instead, 
OSHA has decided to retain a definition that provides the reader with a 
general understanding of the term.
    NJH suggested that the agency define chronic beryllium disease as a 
disease ``characterized by evidence of granulomatous lung inflammation 
in an individual who is sensitized to beryllium.'' According to NJH, 
this definition would allow for diagnosis based on different 
combinations of clinical evaluation results as detailed the ATS 
Statement (Document ID 0022, p. 3). OSHA believes that the definition 
the agency proposed--a chronic granulomatous lung disease caused by 
inhalation of airborne beryllium by an individual who is beryllium 
sensitized--conveys the substance of NJH's recommended definition while 
also emphasizing that CBD results from the inhalation of airborne 
beryllium. OSHA has therefore decided not to adopt the definition NJH 
suggested.
    The ATS expressed concern that OSHA's proposed changes to the 
definition of chronic beryllium disease could create confusion in the 
diagnosis of CBD because it may be challenging in certain settings to 
identify sensitization and granulomatous lung disease based on lung 
pathology (Document ID 0021, p. 5). DOSH similarly commented that the 
proposed definition may be misleading because, although those with CBD 
have sensitization to beryllium, the current testing for sensitization 
has a high false-negative rate and individuals may be diagnosed with 
CBD without first being confirmed positive for beryllium sensitization 
(Document ID 0023, p. 2).
    Although OSHA agrees that employees may be diagnosed with CBD 
without confirmed positive BeLPT results, the agency does not agree 
with these commenters that references to sensitization should be 
excluded from the definition of chronic beryllium disease. OSHA first 
notes that neither DOSH nor the ATS contend that OSHA's definition is 
inaccurate. Furthermore, as OSHA explained previously in its discussion 
of the beryllium sensitization definition, the agency believes that a 
correct understanding of the relationship between beryllium 
sensitization and CBD is key to workers' and employers' understanding 
of many provisions of the beryllium standard. By stating the role that 
sensitization plays in the development of CBD in the standard's 
definition of chronic beryllium disease, OSHA intends to convey clearly 
to the regulated community why protecting workers from becoming 
beryllium sensitized is key to the prevention of CBD and why workers 
who are confirmed positive for beryllium sensitization should be 
offered both a clinical evaluation for CBD and medical removal 
protection.
    OSHA acknowledges that it is not always necessary to identify a 
worker as confirmed positive for beryllium sensitization using the 
BeLPT as part of a diagnosis of CBD and that the BeLPT can yield false-
negative results in some individuals. For this reason, an examining 
physician should have the latitude to diagnose CBD even in the absence 
of a ``confirmed positive'' pattern of BeLPT results. As explained in 
the Summary and Explanation of paragraph (k)(7) of the 2017 final rule, 
that provision gives the examining physician this latitude (82 FR 2704, 
2709). Because the substantive provisions of the standard leave the 
examining physician discretion in diagnosing CBD, OSHA does not agree 
that acknowledging the role of beryllium sensitization in the 
development of CBD will result in diagnostic confusion.
    The NSSP recommended the following addition to OSHA's proposed 
definition of chronic beryllium disease: ``The presence of interstitial 
mononuclear cell (T cell) infiltrates (lymphocytosis) is characteristic 
of chronic beryllium disease'' (Document ID 0027, pp. 3-4). The NSSP 
argued that the presence of these infiltrates on lung biopsy indicates 
the presence of chronic beryllium disease, and should therefore be 
included in the standard's definition (Document ID 0027, p. 4). OSHA 
disagrees. The agency believes that the term ``granulomatous'' 
sufficiently addresses the presence of T-cell infiltrates, which occur 
at an early stage in the development of granulomas (82 FR at 2492-
2502). As discussed previously, OSHA's intent in defining chronic 
beryllium disease is to provide the reader a general understanding of 
what CBD is, rather than provide a technical definition for diagnostic 
use. The suggested addition is not necessary to describe the nature of 
CBD in general terms. With the addition of the term ``granulomatous,'' 
the definition is sufficiently specific for OSHA's purposes in the 
context of paragraph (b).
    In summary, for the purposes of this standard OSHA is defining 
chronic beryllium disease as a chronic granulomatous lung disease 
caused by inhalation of airborne beryllium by an individual who is 
beryllium sensitized. This definition is identical to the definition of 
chronic beryllium disease OSHA proposed in 2018 and includes only minor 
changes from the definition included in the 2017 final standard. OSHA 
is providing this definition to enhance stakeholders' general 
understanding of the beryllium standard; it is neither intended nor 
suitable to provide guidance to medical professionals on the diagnosis 
of CBD. OSHA expects these changes to the 2017 definition of chronic 
beryllium disease will clarify the standard, and will therefore 
maintain safety and health protections for workers.
    Confirmed positive.
    OSHA is amending the definition of confirmed positive to mean (1) 
the person tested has had two abnormal BeLPT test results, an abnormal 
and a borderline test result, or three borderline test results, 
obtained from tests conducted within a three-year period; or (2) the 
result of a more reliable and accurate test indicating a person has 
been identified as having beryllium sensitization. The revised 
definition includes several changes to the 2017 definition of confirmed 
positive and one change from the definition of confirmed positive that 
OSHA proposed in the 2018 NPRM.
    First, the agency is removing the phrase ``beryllium 
sensitization'' from the first sentence of the definition, which 
previously stated that a person is confirmed positive if that person 
has beryllium sensitization, as indicated by two abnormal BeLPT test 
results, an abnormal and a borderline test result, or three borderline 
test results. OSHA intends that confirmed positive act only as a 
trigger for requirements such as continued medical monitoring and 
surveillance for the purposes of this standard, and not as a general-
purpose definition of beryllium sensitization. By removing the phrase 
``beryllium sensitization'' from the first sentence of the definition, 
the agency hopes to avoid confusion resulting from scientific 
disagreements over whether certain test results, such as three 
borderlines, necessarily prove that sensitization has occurred. For 
purposes of the beryllium

[[Page 42604]]

standard, any worker with the BeLPT test results specified in the 
definition of confirmed positive should be offered an evaluation for 
CBD with continued medical surveillance as well as the option of 
medical removal protection, even though some small percentage of 
workers who are confirmed positive by this definition may not in fact 
be sensitized to beryllium, as is the case for any diagnostic test 
(Middleton et al., 2008 (Document ID OSHA-H005C-2006-0870-0480, p. 
4)).\12\
---------------------------------------------------------------------------

    \12\ In the preamble to the 2017 final rule, OSHA found that 
three borderline BeLPT results recognize a change in a person's 
immune system with respect to beryllium exposure based on Middleton 
et al.'s 2011 finding that three borderline BeLPT results have a 
positive predictive value (PPV) of over 90 percent (82 FR at 2501), 
and therefore the agency included three borderline results in the 
criteria for confirmed positive (82 FR at 2646).
---------------------------------------------------------------------------

    Both the USW and Materion supported this proposed revision. The USW 
stated that the former definition of confirmed positive had acted ``as 
a de facto definition of sensitization'' and that removing the phrase 
from this portion of the definition ensures that a finding of confirmed 
positive will trigger medical surveillance and medical removal 
protection ``without an intermediate stop at a finding of 
sensitization'' (Document ID 0033, p. 5). Similarly, Materion commented 
that the revised definition allows individuals with three borderline 
BeLPT results to obtain the protections of the standard, including 
evaluation for CBD and medical removal protection, without necessarily 
being ``declared sensitized'' (Document ID 0038, p. 18). Materion 
further asserted that the change enhances employee protection by 
increasing the number of persons eligible for further testing (Document 
ID 0038, p. 19).
    NJH opposed the revised definition, asserting that the removal of 
the phrase ``beryllium sensitization'' could prevent individuals who 
meet the definition of being confirmed positive from being identified 
as sensitized. NJH further expressed concern that this could make it 
difficult for some workers to access the medical testing and workplace 
protections required by the rule (Document ID 0022, p. 4).
    The ATS and the AOEC also disagreed with the removal of the phrase 
``beryllium sensitization'' from the definition of confirmed positive, 
stating the medically accepted interpretation of BeLPT testing results 
is that they indicate beryllium sensitization, and that removing this 
phrase may cause confusion about what condition the term confirmed 
positive refers to (Document ID 0021, p. 3; 0028, p. 2). The ATS 
further stated without explanation that removing the term ``beryllium 
sensitization'' from the definition of confirmed positive would reduce 
worker protections.\13\ The NSSP also expressed disagreement with 
OSHA's proposal to remove ``beryllium sensitization'' from the first 
part of the confirmed positive definition, but did not state the 
reasons for their concern (Document ID 0027, p. 3).
---------------------------------------------------------------------------

    \13\ The ATS also asserted that the removal of the phrase 
``beryllium sensitization'' would reduce workers' right to file for 
worker's compensation (Document ID 0021, p. 3). The ATS did not 
explain how the definition of confirmed positive in the beryllium 
standard could affect worker's compensation claims and at least one 
other commenter questioned the ATS's assertion (see Document ID 
0038, p. 19). Regardless, OSHA intends the definition of confirmed 
positive to serve only as a trigger for certain provisions of the 
beryllium standard. How OSHA defines this phrase for purposes of the 
beryllium standard in no way limits healthcare professionals' 
ability or incentive to diagnose beryllium sensitization.
---------------------------------------------------------------------------

    Following consideration of the concerns raised by these 
organizations, OSHA disagrees that removing the phrase ``beryllium 
sensitization'' from the first sentence of the definition of confirmed 
positive will create confusion or reduce worker protections. The 
provisions of the standard intended to benefit workers who may be 
sensitized (evaluation at a CBD diagnostic center and medical removal 
protection) are available to all workers who meet the definition of 
confirmed positive. Therefore, removing the term ``beryllium 
sensitization'' from the first sentence of the definition will not 
change the access to these benefits for any workers. By removing the 
term ``beryllium sensitization'' from the first sentence of the 
definition, OSHA seeks to ensure that workers with three borderline 
BeLPT results (or other patterns of test results that some physician or 
other licensed health care professionals (PLHCPs) may consider 
ambiguous) will receive the benefits of the standard regardless of 
whether their PLHCP views their results as firm evidence of 
sensitization. Furthermore, OSHA disagrees that removing the reference 
to ``beryllium sensitization'' will lead to confusion about what the 
BeLPT results are supposed to indicate because the second sentence of 
the definition of confirmed positive makes clear that a worker who has 
been diagnosed with beryllium sensitization would also meet the 
definition of confirmed positive: ``It [confirmed positive] also means 
the result of a more reliable and accurate test indicating a person has 
been identified as having beryllium sensitization.''
    An additional change to the definition of confirmed positive 
provides that the findings of two abnormal, one abnormal and one 
borderline, or three borderline results need to occur from BeLPTs 
conducted within a three-year period. This change in the definition of 
confirmed positive differs from the proposal and is based on comments 
submitted to the record following publication of the 2018 NPRM.
    The 2017 final rule did not specify a time limit within which the 
BeLPT tests that contribute toward a finding of ``confirmed positive'' 
must occur. After publication of the 2017 final rule, stakeholders 
suggested to OSHA that the definition of confirmed positive could be 
interpreted as meaning that findings of two abnormal, one abnormal and 
one borderline, or three borderline results over any time period, even 
as long as 10 years, would result in the employee being confirmed 
positive and automatically referred to a CBD diagnostic center for 
evaluation. As discussed in the preamble to the 2017 standard, clinical 
evaluation for CBD involves bronchoalveolar lavage and biopsy (82 FR at 
2497) which, like all invasive medical procedures, carry risks of 
infection and other complications.\14\ Given such risks, and the 
possibility that some repeat abnormal or borderline results obtained 
over a long period of time could be false positives, it was not the 
agency's intent that workers with rarely recurring abnormal or 
borderline BeLPT results should necessarily proceed to evaluation at a 
CBD diagnostic center unless recommended to do so by their examining 
physician. At the same time, OSHA notes that under paragraph 
(k)(5)(iii), the licensed physician performing the BeLPT testing 
retains the discretion to refer an employee to a CBD diagnostic center 
if the licensed physician deems it appropriate, regardless of the BeLPT 
result.
---------------------------------------------------------------------------

    \14\ Bronchoalveolar lavage is a method of ``washing'' the lungs 
with fluid inserted via a flexible fiberoptic instrument known as a 
bronchoscope, removing the fluid and analyzing the content for the 
inclusion of immune cells reactive to beryllium exposure (82 FR at 
2497).
---------------------------------------------------------------------------

    In the 2018 NPRM OSHA proposed that any combination of test results 
specified in the definition of confirmed positive must result from the 
tests conducted in one cycle of testing, including the initial BeLPT 
and the follow-up retesting offered within 30 days of an abnormal or 
borderline result (paragraph (k)(3)(ii)(E)). As outlined in proposed 
paragraph (k)(3)(ii)(E), an employee would be offered a follow-up BeLPT 
within 30 days if the initial test result is anything other than 
normal, unless the employee had been confirmed positive (e.g., if the 
initial

[[Page 42605]]

BeLPT was performed on a split sample and showed two abnormal results). 
Thus, for example, if an employee's initial test result was abnormal, 
and the result of the follow-up testing offered to confirm the initial 
test result was abnormal or borderline, the employee would be confirmed 
positive. Alternatively, if the result of the follow-up testing offered 
to confirm the initial abnormal test result was normal, the employee 
would not be confirmed positive. Any additional abnormal or borderline 
results obtained from the next required BeLPT for that employee 
(typically, two years later) would not identify that employee as 
confirmed positive under the proposed modification to confirmed 
positive. OSHA requested comments on the appropriateness of this 
proposed time period.
    Several stakeholders, including Materion, NJH, the ATS, DOSH, the 
NSSP, the AOEC, the USW, and The American College of Occupational and 
Environmental Medicine (ACOEM), submitted comments regarding OSHA's 
proposal to require that the test results specified in the agency's 
definition of confirmed positive must occur within a single testing 
cycle. Commenters focused on several aspects of the proposed timing. 
First, many of the comments focused on the logistics of OSHA's proposed 
change. Materion supported the proposed definition of confirmed 
positive, stating that a 30-day allowance for follow-up testing after a 
first abnormal or borderline BeLPT result is appropriate to ensure that 
testing is completed in a timely manner (Document ID 0038, p. 17). 
However, NJH, the ATS, ACOEM, the USW, and the NSSP all indicated that 
requiring results with a 30-day testing cycle could create logistical 
challenges, for example due to repeat testing requirements or for 
businesses in remote areas with limited healthcare facilities (Document 
ID 0022, p. 4; 0021, p. 4; 0024, p. 1; 0033, p. 5; 0027, p. 3). In this 
final rule and preamble, OSHA clarifies that it did not intend that the 
initial and follow-up tests had to be completed and interpreted within 
30 days. It intended that the test results used to determine if a 
worker is confirmed positive be obtained during one cycle of testing 
(i.e., an initial or periodic examination), including follow-up testing 
conducted within 30 days of an abnormal or borderline result.
    Secondly, stakeholders commented on the appropriateness of limiting 
the use of the BeLPT from one test cycle in determining if a worker is 
confirmed positive. Materion agreed with the proposed timing and 
commented that the change ``increases employee protections by 
establishing an employee as confirmed positive in a shorter time frame, 
thus, making the medical removal benefit option available to the worker 
in a more timely manner'' (Document ID 0038, p. 19). Stakeholders from 
the medical community disagreed and raised concerns that limiting test 
results to one test cycle would affect the ability to identify workers 
who should be referred for a CBD evaluation and receive other 
protections under the standard.
    The NSSP cited data from healthcare providers to demonstrate that a 
30-day testing cycle is insufficient to properly identify sensitized 
workers. According to the NSSP, in over 20 years of conducting BeLPTs 
in worker populations, Oak Ridge Associated Universities observed 
approximate median times of 45 days (range of 3 days to 16 years) 
between first and second abnormal tests, 1.5 years (range of 30 days to 
11 years) for the abnormal/borderline test combination, and 1 year 
(range of 30 days to 11 years) for three borderlines (Document ID 0027, 
p. 3). Under the proposed 30-day requirement, the NSSP stated that the 
majority of workers who have been identified as sensitized in the past 
would not meet the proposed definition of confirmed positive (Document 
ID 0027, p. 3).
    NJH reported similar findings in new evidence submitted to the 
record (Document ID 0022, pp. 4-5). The evidence indicates that many 
workers who develop CBD have abnormal or borderline results that do not 
immediately repeat upon retesting. To the contrary, many CBD patients 
have a series of tests which alternate between normal and abnormal. 
Data based on NJH's extensive experience show that the BeLPT does not 
yield consistently abnormal results among CBD patients. Of 194 patients 
diagnosed with CBD at NJH, the length of time between abnormal results 
ranged from 14 days to 5.8 years, with a 95th percentile of 2.9 years. 
In this group, 150 patients (or 77 percent) would not have been 
evaluated for CBD if two abnormal BeLPT results were required to occur 
within a 30-day testing cycle (Document ID 0022, p. 5).
    Although the information the NSSP and NJH submitted to the record 
is unpublished, their findings are consistent with published studies. 
Kreiss et al. (1997) reported that nine individuals had initial 
abnormal BeLPT results followed by two normal tests; six of those 
individuals were re-tested approximately one year later and four were 
confirmed positive for beryllium sensitization based on abnormal BeLPT 
results (Document ID OSHA H005C-2006-0870-1360, pp. 610-12). These 
findings suggest a high rate of false-negative results and are 
consistent with results reported in a study by Stange et al. (2004). 
That study found an average false-positive rate of 1.09 percent, and a 
false-negative rate of 27.7 percent for the BeLPT (Document ID OSHA-
H005C-2006-0870-1402, p. 459).
    Other public health organizations, including DOSH, the ATS, the 
NSSP, and the AOEC, agreed with NJH that workers who are sensitized to 
beryllium may show varying test results over time; and restricting the 
time period for determining ``confirmed positive'' status to 30 days 
would cause sensitized individuals to go undetected (Document ID 0023, 
p. 2; 0021, p. 2; 0027, p. 3; 0028, p. 2). The ATS and the AOEC 
recommended that results from tests performed up to at least three 
years after the initial abnormal or borderline test result should be 
used to determine whether the person tested is confirmed positive for 
beryllium sensitization (Document ID 0021, p. 2; 0028, p. 2). The ATS 
stated that a timeframe of at least three years, which encompasses two 
rounds of regularly scheduled testing required biennially by the 
beryllium standard, would adequately address its concerns regarding 
logistical feasibility, would improve diagnostic accuracy, and help 
ensure that sensitized workers are identified (Document ID 0021, p. 4). 
The AOEC agreed that consideration of BeLPT test results obtained 
during a time period of at least three years ``will increase the 
potential that workers are accurately diagnosed with beryllium 
sensitization [and] will receive the necessary care'' (Document ID 
0028, p. 2).
    The approaches recommended by the ATS and the AOEC are similar to 
the approach NJH used in providing medical surveillance consultation to 
workforces that use beryllium. NJH stated that, if an individual's 
BeLPT results are abnormal and normal on their initial round of BeLPT 
testing, they will usually request another BeLPT within a month. If the 
result of that test is normal, they do not request further testing 
until the next regularly scheduled BeLPT. If the result of the next 
regularly scheduled BeLPT comes back abnormal, they refer the worker 
for clinical evaluation even though the tests are separated by the two-
year testing cycle (Document ID 0022, p. 5).
    Following consideration of the comments and of the new evidence 
submitted to the record following the proposal, OSHA is convinced that 
some workers who are ultimately found to be sensitized to beryllium or 
diagnosed

[[Page 42606]]

with CBD may have alternating abnormal and normal BeLPT results, and 
that the time period for abnormal or borderline results to repeat can 
be months or years. OSHA is also convinced that requiring two abnormal, 
an abnormal and borderline, or three borderline results to occur in one 
cycle of an initial or periodic exam before an employee can be 
confirmed positive could result in beryllium sensitization or CBD going 
undetected in many employees. This is demonstrated by the unpublished 
data submitted by NJH showing that a substantial percentage of 
individuals with CBD (77 percent) may not have been referred for 
further testing based on results obtained within a 30-day cycle of 
testing and is confirmed by the experience of the NSSP. Therefore, OSHA 
finds that its proposed change would have the unintended and 
unacceptable consequence of reducing employee protections because some 
employees who are sensitized or have CBD would be deprived of the 
benefits available through the standard, such as a timely evaluation at 
a CBD diagnostic center. In addition, requiring that results be 
obtained in one test cycle is not consistent with the approaches 
currently applied or supported by the medical community.
    For these reasons, OSHA is revising the definition of confirmed 
positive to specify that the findings of two abnormal, one abnormal and 
one borderline, or three borderline results must be obtained from 
BeLPTs conducted within a three-year period. OSHA agrees with the ATS 
and the AOEC that a three-year period will facilitate the 
identification of sensitized workers enrolled in medical surveillance 
(see Document ID 0022, p. 5; 0028, p. 2). In addition, this approach is 
consistent with the practices and recommendations from the medical 
community, including NJH, which provides beryllium-related medical 
surveillance consultation. OSHA believes that allowing a worker to be 
confirmed positive based on BeLPT results obtained over a three-year 
time period strikes a reasonable balance that would allow a timely 
evaluation for CBD, while at the same time, maintaining OSHA's original 
intent that a confirmed positive finding not be based on results 
obtained over an indefinite time period.
    OSHA emphasizes that this revision does not modify the requirements 
of paragraph (k)(3)(ii)(E). Under that paragraph, if the results of the 
BeLPT are other than normal, a follow-up BeLPT must be offered within 
30 days of receiving the results, unless the employee has been 
confirmed positive. Only other than normal BeLPT results must be 
followed up within 30 days of the same test cycle (i.e., an initial or 
periodic medical examination).
    As an example, an employee who receives a borderline result during 
one periodic examination conducted in 2020 would be retested within 30 
days, and if the follow-up test is normal, testing would stop. That 
employee would be offered another BeLPT at the next periodic 
examination conducted in 2022. However, if the result of the 2022 test 
is borderline, the employee would be retested within 30 days of that 
test result receipt, and if the follow-up test is borderline, the 
employee would be confirmed positive because of receiving three 
borderline tests within three years. A three-year period for the 
employee to be confirmed positive would ensure sufficient time for such 
follow-up tests that may need to be conducted over two cycles of 
medical examinations.
    DOD recommended changing the term ``confirmed positive'' to another 
term such as ``confirmed non-negative,'' ``confirmed finding of 
concern,'' or ``pattern of concern.'' According to the DOD, the term 
``confirmed positive'' typically ``implies an initial positive test 
that was repeated with another test or another, more sensitive test, 
which confirms the initial positive test result'' (Document ID 0029, p. 
2). The CBD literature, however, commonly treats individuals as 
confirmed positive for sensitization through sequentially conducted 
BeLPTs (see, for example, the ATS Statement on Diagnosis and Management 
of Beryllium Sensitivity and Chronic Beryllium Disease, ATS 2014, 
Document ID OSHA-H005C-2006-0870-0364, p. e41; see also Document ID 
OSHA-H005C-2006-0870-1543, 0603, 0398, 1403, 1449). Additionally, OSHA 
again emphasizes that terms defined in the beryllium standard are 
defined only for purposes of the standard and are not intended as 
diagnostic, scientific, or all-purpose definitions. OSHA believes that 
its definition of confirmed positive clearly indicates what that term 
means for purposes of the beryllium standard and therefore disagrees 
with DOD's concern that the term may cause confusion. Accordingly, OSHA 
is retaining the term ``confirmed positive'' in this final standard.
    Dermal contact with beryllium.
    Paragraph (b) of this final rule defines dermal contact with 
beryllium as skin exposure to (1) soluble beryllium compounds 
containing beryllium in concentrations greater than or equal to 0.1 
percent by weight; (2) solutions containing beryllium in concentrations 
greater than or equal to 0.1 percent by weight; or (3) visible dust, 
fumes, or mists containing beryllium in concentrations greater than or 
equal to 0.1 percent by weight. The definition also states that 
handling of beryllium materials in non-particulate solid form that are 
free from visible dust containing beryllium in concentrations greater 
than or equal to 0.1 percent by weight is not considered dermal contact 
under the standard. Several of the standard's provisions are triggered 
where an employee has, or can be reasonably expected to have, dermal 
contact with beryllium. These include provisions in paragraph (f), 
Written exposure control plan; paragraph (h), Personal protective 
clothing and equipment (PPE); paragraph (i), Hygiene areas and 
practices; paragraph (k), Medical surveillance; and paragraph (m), 
Communication of hazards.
    This final rule makes two changes to the previous definition, which 
was added to the standard through the 2018 direct final rule (83 FR at 
19940) following OSHA's promulgation of the final rule in January 2017. 
That direct final rule defined dermal contact with beryllium as skin 
exposure to soluble beryllium compounds, beryllium solutions, or dust, 
fumes, or mists containing beryllium, where these materials contain 
beryllium in concentrations greater than or equal to 0.1 percent by 
weight (83 FR at 19940). First, this final rule modifies the definition 
to refer to ``visible'' dust, fumes, or mists containing beryllium in 
concentrations greater than or equal to 0.1 percent by weight. Second, 
OSHA is adding a sentence to the definition specifying that handling 
beryllium materials in non-particulate solid form that are free from 
visible dust containing beryllium in concentrations greater than or 
equal to 0.1 percent by weight is not considered dermal contact with 
beryllium under the standard. This final rule's definition of dermal 
contact with beryllium is identical to the definition that OSHA 
proposed in the 2018 NPRM.
    The revisions incorporated in this definition are intended to help 
employers more accurately identify areas where the provisions triggered 
by dermal contact apply. Based on feedback OSHA received from 
stakeholders following publication of the 2017 final standard, OSHA 
became concerned that employers might have difficulty accurately 
identifying when and where the provisions triggered by dermal contact 
are required. Beryllium-generating processes can release beryllium in 
varying particle sizes and amounts, some of which are visible to the 
naked eye and some of which are not. OSHA was concerned that

[[Page 42607]]

employers could reasonably interpret the provisions triggered by dermal 
contact with beryllium (e.g., the use of PPE) as extending to every 
employee who could potentially encounter a minute and non-visible 
amount of beryllium particulate at its facility, irrespective of the 
employee's job duties and tasks, or who might handle an object 
containing beryllium. Such an interpretation would be contrary to 
OSHA's intent and could prompt employers to attempt infeasible 
compliance measures. Therefore, as explained in the 2018 NPRM, OSHA 
proposed adding the term ``visible'' to clarify when skin exposure to 
beryllium-containing dust, fumes, or mist should be considered dermal 
contact with beryllium for the purpose of triggering the standard's 
requirements. OSHA also proposed adding a sentence to state that 
handling of beryllium materials in non-particulate solid form that are 
free from visible dust containing beryllium in concentrations greater 
than or equal to 0.1 percent by weight is not considered ``dermal 
contact with beryllium'' under the standard.
    Several commenters supported revising the definition of dermal 
contact with beryllium to apply to visible particulate, agreeing that 
the revised definition would facilitate compliance with the standard. 
In its submission, Materion stated that the proposed change to the 
definition ``clears up the ambiguity and eliminates the vagueness of 
the [previous] . . . standard,'' and that

    Revising the standard to provide employees as well as employers 
clear lines will likely immeasurably help not only with compliance 
but with enforcement of the standard. Without the visible cue, 
employees will have no idea whether and when they should be 
protected by PPE. . . . OSHA has fixed this problem with a sensible 
and clear demarcation threshold for dermal contact, and has done so 
in a manner that does not sacrifice protection against the risk of 
CBD.

    (Document ID 0038, p. 21). Similarly, the USW stated that dermal 
exposure to beryllium needed to be ``properly addressed,'' but that 
triggering provisions by dermal contact with materials containing 
beryllium at any level ``could extend the application of the standard 
far beyond what OSHA intended or what is necessary to protect workers'' 
(Document ID 0033, p. 4). The USW referred to non-sparking tools made 
from beryllium-copper alloy and beryllium foil used for x-ray windows 
as examples of materials where dermal contact should not trigger 
provisions of the standard (Document ID 0033, p. 4).
    Century Aluminum Company (Century Aluminum) (Document ID 0026, p. 
2) and DOD (Document ID 0029, p. 1) also agreed with the proposal to 
add the term ``visible'' to the definition. However, DOD recommended 
that OSHA revise the definition to explicitly identify skin exposure to 
``visible dust that has accumulated on surfaces'' in addition to 
visible dust, fumes, or mists containing beryllium in concentrations 
greater than or equal to 0.1 percent by weight. OSHA does not believe 
this added phrase is necessary. The definition of dermal contact with 
beryllium does not distinguish the exposure routes that cause the skin 
exposure and, as proposed, the phrase ``visible dust'' encompasses 
exposures via both air and surface contamination.
    The ATS commented that adding ``visible'' to the definition to 
trigger provisions related to dermal contact ``could be helpful,'' but 
cautioned that inhalation of beryllium particulate that is not visible 
is ``the major concern'' for developing CBD (Document ID 0021, p. 5). 
It urged OSHA to ensure that the revised definition neither undermines 
the requirements of the beryllium standard which limit exposure to 
respirable beryllium, nor limits education on the health effects of 
beryllium to only those workers with exposure to visible dust (Document 
ID 0021, p. 5).
    NJH objected to OSHA's proposal to restrict the definition to 
visible dust, fumes, and mists, believing that doing so could reduce 
employee protections from beryllium-induced sensitization and disease 
(Document ID 0022 p. 7). NJH commented that the smallest respirable 
particles are not visible and are inhaled into the deepest part of the 
lung. It further commented that a ``monitoring program that routinely 
samples all departments with air and wipe samples can accomplish 
identifying `nonvisible' dust contamination and should be part of any 
industry that needs to comply with an exposure limit'' (Document ID 
0022, p. 7). Other commenters voiced similar concerns about the risk 
posed by exposure to ultrafine particles containing beryllium, 
including the NSSP (Document ID 0027, p. 3), the AOEC (Document ID 
0028, p. 2), and DOSH (Document ID 0023, p. 2).
    OSHA agrees that exposure to airborne beryllium, even when not 
visible to the naked eye, is an important risk factor for developing 
CBD and that it would be inappropriate to rely on the presence of 
visible airborne particulate to assess workers' exposure to airborne 
beryllium and the need to implement engineering and work practice 
controls or respiratory protection. The standard's permissible exposure 
limits and requirements for quantitative exposure assessments and use 
of respiratory protection are of paramount importance for ensuring that 
workers are protected from CBD, and these requirements are unaffected 
by the changes to the dermal contact with beryllium definition. In 
addition, the standard's requirements to train workers on the health 
hazards of exposure to beryllium and on the employer's exposure control 
plan (paragraph (m)(4)) apply to all employees within the scope of the 
general industry standard who have, or can reasonably be expected to 
have, airborne exposure (regardless of the size fraction) to or dermal 
contact with beryllium, thus including all workers that would be 
considered to be potentially at risk of beryllium-related disease.\15\
---------------------------------------------------------------------------

    \15\ NJH also asserted that ``[a]ll workers in a beryllium using 
industry should receive beryllium education with programs tailored 
to specific jobs and processes'' (Document ID 0022, p. 7). Mount 
Sinai Selikoff Centers for Occupational Health similarly advocated 
for ``intensive training and protective gear for all workers who may 
be at risk of beryllium exposure'' (Document ID 0032, p. 3). OSHA 
notes that the beryllium standard has never required all workers in 
a beryllium-using industry to receive training. Rather, the standard 
has always required training for those workers who have or are 
reasonably expected to have airborne exposure to beryllium 
regardless of the size fraction. The standard continues to require 
training for all such workers.
---------------------------------------------------------------------------

    DOSH advocated for surface sampling as being a ``practical method'' 
for assessing exposure and asserted that adopting a ``specific 
numerical surface contamination criterion'' to assess dermal contact 
hazard was a more protective strategy. DOSH further suggested that, in 
establishing this numerical criterion, OSHA ``consider levels that 
could result in uptake of beryllium by workers at rates similar to 
action level airborne exposures'' (Document ID 0023, p. 2).
    With respect to inhalation hazards associated with beryllium, OSHA 
agrees that relying on the visibility of particulate does not 
adequately protect workers from CBD or lung cancer, and that both 
conducting routine air sampling and ensuring no employees are exposed 
to airborne beryllium in excess of the PELs are essential to minimizing 
workers' exposures to airborne particulate. The TWA PEL for beryllium 
is based on robust evidence from studies of beryllium workers that 
permitted the agency to determine that there is significant risk of 
sensitization, CBD, and lung cancer associated with the previous TWA 
PEL, and that this

[[Page 42608]]

risk would be substantially reduced by the new PEL (82 FR at 2545-52).
    Unlike the case for inhalation, the available data on the effects 
of dermal contact with beryllium make it difficult to establish a 
reasonably precise, objective limit on surface contamination above 
which protective measures should be triggered. The most recent effort 
to derive a health-based measure of surface cleanliness for beryllium 
was that of Shay et al. (Document ID H005C-2006-0870-0417), who used 
models that accounted for particulate dissipation, resuspension into 
air, transfer efficiency from surface to skin, dermal absorption of 
particulate through intact or damaged skin, and other factors. The 
authors used these models along with both oral and inhalation toxicity 
values derived by the Environmental Protection Agency to relate the 
level of surface contamination to target risk values for cancer and 
noncancer effects that would generally be considered to be de minimis 
(i.e., an exposure associated with either a lifetime cancer risk of one 
death per million persons exposed, or no excess risk of adverse 
noncancer effects). After accounting for these factors, the resulting 
surface dust cleanup criteria for each health endpoint ranged over 
several orders of magnitude, reflecting a high degree of uncertainty 
(for the noncancer endpoint, the criteria ranged from 5 to 370 
[micro]g/cm\2\ for damaged skin, and from 17 to 3,337 [micro]g/cm\2\ 
for intact skin; for cancer, the criteria ranged from 51 to 485 
[micro]g/cm\2\).
    This study illustrates the difficulty in establishing a reliable 
and objective risk-based limit on surface contamination that could be 
used to trigger measures that would prevent dermal contact with 
beryllium particulate when such contact is sufficient to contribute to 
a significant risk of disease. Absent an objective measure, OSHA finds 
that it is preferable to base the definition of dermal contact with 
beryllium on a clear, qualitative indicator of when dermal contact is 
occurring or is reasonably anticipated to occur so that employers can 
have assurance that they are in compliance with the provisions that are 
triggered by dermal contact. Accordingly, the final rule's definition 
of dermal contact with beryllium refers to skin exposure to visible 
dusts, fumes, or mists, as well as to soluble compounds and solutions 
of beryllium, as was proposed. As stated above, OSHA expects that 
revisions in this final rule will maintain worker protections.
    NJH also objected to defining dermal contact with beryllium when 
handling finished beryllium products only by the presence of visible 
dust, asserting that gloves are warranted because beryllium could 
oxidize on the surface (Document ID 0022, p. 7). However, for the 
reasons explained below, OSHA considers these comments to be beyond the 
scope of the proposal. The agency also notes that the revision NJH's 
comment refers to merely clarifies the meaning of the 2017 standard, 
rather than modifying it substantively.
    OSHA's revision to the definition of dermal contact with beryllium 
clarifies OSHA's intent that the provisions in the standard related to 
dermal contact with beryllium do not apply to the handling of solid 
beryllium-containing objects that the employer does not process, unless 
visible beryllium particulate has contaminated the surface of the 
object. OSHA explained in the 2017 final rule that beryllium-containing 
solid objects, or ``articles,'' with uncompromised physical integrity 
are unlikely to release beryllium that would pose a health hazard for 
workers (82 FR at 2640). An article, by definition, ``under normal 
conditions of use does not release more than very small quantities, 
e.g., minute or trace amounts of a hazardous chemical . . . , and does 
not pose a physical hazard or health risk to employees'' (29 CFR 
1910.1200(c)). The agency therefore excluded articles that contain 
beryllium, and that the employer does not process, from the scope of 
the 2017 beryllium standard (see paragraph (a)(3)). OSHA did not intend 
for the 2018 NPRM to open the agency's underlying findings on the 
handling of beryllium-containing articles, nor their exclusion from the 
scope of the standard, for notice and comment. To the extent NJH's 
comment challenges the articles exemption, these comments are beyond 
the scope of the proposal.
    Nevertheless, even for those solid beryllium-containing objects 
that do not fall under the definition of an article, such as ingots 
that might be processed further, OSHA notes that PPE would be required 
if there is a reasonable expectation that oxidation may result in 
visible surface contamination. In its comments on the 2015 NPRM, 
Materion explained that beryllium oxides are created through particular 
manufacturing processes, typically those involving heating of the 
beryllium-containing materials (e.g., hot forming operations, melting, 
or heat treating) (see Document ID OSHA-H005C-2006-0870-1662, p. 16). 
These operations may give rise to a reasonable expectation of dermal 
contact due to the expected oxidization that will occur as a result of 
the process. Where there is a reasonable expectation that oxidization 
may result in visible surface contamination, an employer must not wait 
for the surface to be contaminated to require PPE for potentially 
exposed employees. For example, if the surface of a solid object must 
be heat treated, and the employer has reason to believe this will 
result in surface oxidation absent cleaning the surface, PPE would be 
required under this final rule.
    After carefully considering the record of public comments on this 
topic, OSHA finds that the revised definition of dermal contact with 
beryllium will provide a clearer and more workable definition, without 
reducing worker protections. The specification of ``visible dust, 
fumes, or mists containing beryllium in concentrations greater than or 
equal to 0.1 percent by weight'' and clarification regarding beryllium-
containing articles will allow employers to accurately identify the 
employees, particularly those working outside of beryllium work areas 
or regulated areas, to whom the provisions triggered by dermal contact 
with beryllium apply, including the requirement in paragraph (h) to 
provide employees with PPE to protect against reasonably expected 
dermal contact with beryllium. The revised definition will also render 
more workable the additional provisions in the standard that are 
triggered by dermal contact with beryllium, which include provisions in 
paragraph (f), Written exposure control plan; paragraph (i), Hygiene 
areas and practices; paragraph (k), Medical surveillance; and paragraph 
(m), Communication of hazards.
    This final rule better addresses the practical aspects of a 
``reasonable expectation'' trigger for PPE than did the previous rule, 
which could have been read as effectively requiring employees to wear 
PPE facility-wide, even when not in proximity to beryllium generating 
processes, such as in administrative offices. OSHA believes that use of 
PPE in that circumstance is unwarranted and would not meaningfully 
enhance worker protections against beryllium exposure. Where an 
employer has a reasonable expectation that even very small amounts of 
beryllium dust, fume, or mist might spread outside of beryllium work 
areas, they might have interpreted the language of the previous rule to 
require all employees in the facility to wear PPE all of the time. OSHA 
did not intend and did not cost the previous rule as requiring PPE to 
protect against dermal contact with non-visible beryllium dust, fumes, 
or mists outside of beryllium work areas. The addition of a visual cue 
will enable employers to accurately identify the employees outside of 
beryllium work

[[Page 42609]]

areas who need to wear PPE due to their reasonably-expected dermal 
contact with beryllium.
    As OSHA explained in the 2018 NPRM (83 FR at 63752), the agency 
expects that the use of PPE will always be required in beryllium work 
areas because both the operations listed in Appendix A and those that 
can be reasonably expected to generate exposure at or above the action 
level would create a reasonable expectation of dermal contact with 
beryllium. This expectation is based, in part, on a study conducted by 
NIOSH and Materion and published in the Journal of Occupational and 
Environmental Hygiene (Document ID OSHA-H005C-2006-0870-0502, p. 791). 
In the 2018 NPRM, OSHA explained that this study identified a strong 
correlation between airborne beryllium concentrations and the amount 
measured on gloves worn by workers at multiple beryllium facilities and 
jobs, indicating the potential for skin exposure where airborne 
beryllium is present. The study further concluded that this correlation 
implies that one type of measurement can be indicative of other 
exposure pathways (Document ID OSHA-H005C-2006-0870-0502, p. 791). OSHA 
further explained that the expectation of dermal contact within 
beryllium work areas is also based on OSHA's review of data collected 
during site visits conducted by the agency that cover a wide range of 
processes (e.g., furnace and melting operations, casting, grinding/
deburring, machining and stamping) and a wide range of materials 
including beryllium composite, beryllium alloy, and beryllium oxide. 
The data show that those operations that would create a reasonable 
expectation of dermal contact, either through beryllium surface 
contamination or skin contamination, are covered either by proposed 
Appendix A or have exposures above the action level (see Document ID 
OSHA-H005C-2006-0870-0341).
    In its comment, Materion questioned OSHA's reliance on the 2007 Day 
et al. study (82 FR at 2488-89) and suggested that, contrary to OSHA's 
statement, Day did not identify a ``strong correlation'' between 
airborne concentrations and skin exposure (Document ID 0038, pp. 13-
14). Materion cited Day's finding of a potential for greater transfer 
of beryllium from surfaces to cotton gloves that could lead to an 
overestimation of the amount of beryllium transferred. OSHA disagrees 
with Materion's assessment of the Day study. Day indicates that the 
underlying assumption that glove-sampling techniques actually remove 
the majority of the contamination may be overstated and that the 
surface and skin wipe samples may underestimate the mass of beryllium 
that is present. The Day study demonstrates that there is a correlation 
between airborne and potential for skin exposures (Document ID OSHA-
H005C-2006-0870-1548, p. 79).
    As OSHA discussed in the NPRM, this finding is supported by a 
follow-up study by Armstrong et al. (2014) conducted at four different 
Materion manufacturing locations over a wide variety of jobs. This 
study also showed strong positive correlations between air, dermal, and 
surface exposures among the four different facilities that process 
beryllium (Document ID OSHA-H005C-2006-0870-0502, p. 791). The study 
further concludes that this correlation implies that one type of 
measurement can be indicative of other exposure pathways. OSHA finds 
that these studies demonstrate a correlation between airborne exposure 
and the reasonable expectation of dermal contact.\16\
---------------------------------------------------------------------------

    \16\ Materion also asserted that the evidence in the record is 
insufficient to conclude that ``dermal contact alone is sufficient 
to create a significant risk of CBD or even beryllium 
sensitization'' (Document ID 0038, pp. 14-15). However, in the 2017 
final rule, OSHA specifically found that that dermal exposure can 
result in sensitization (see 82 FR at 2489). The 2018 NPRM did not 
propose revisiting this finding.
---------------------------------------------------------------------------

    In the 2018 NPRM, OSHA specifically requested comments on whether 
processes exist that could trigger the creation of a beryllium work 
area, but could be reasonably expected to release only non-visible 
beryllium-containing dusts, fumes, or mists. No commenter provided 
evidence of such processes. Materion asserted that OSHA should not 
``automatically classify'' beryllium work areas as having a reasonable 
expectation of dermal contact because this would serve as ``a serious 
disincentive for employers to eliminate exposure meeting the definition 
of dermal contact'' (Document ID 0038, p. 15). However, Materion did 
not explain how such a presumption would serve as a disincentive and, 
more importantly, did not identify any process that could trigger the 
creation of a beryllium work area while not also, in fact, creating a 
reasonable expectation of dermal contact.
    Accordingly, OSHA reaffirms its expectation that both the 
provisions associated with beryllium work areas (listed above) and the 
provisions associated with dermal contact with beryllium would apply to 
employees in a beryllium work area. OSHA expects that employers will, 
for each beryllium work area, assess the PPE needs as required by 
paragraph (f)(1) and OSHA's Personal Protective Equipment standards 
(subpart I of 29 CFR 1910) and provide their employees with appropriate 
PPE.
    Because it will help employers identify which employees have, or 
can be reasonably expected to have, dermal contact with beryllium, the 
revised definition will allow employers to more accurately comply with 
the requirement in paragraph (f)(1)(i)(A) to establish, implement, and 
maintain a written exposure control plan that includes a list of 
operations and job titles reasonably expected to involve airborne 
exposure to or dermal contact with beryllium. OSHA expects that the 
list would likely include all operations and job titles in beryllium 
work areas, along with any additional operations or job titles for 
employees whose skin could be exposed to visible beryllium dust, fumes, 
or mists in concentrations of 0.1 percent by weight or more. Under the 
previous definition, employers could have reasonably interpreted the 
standard as requiring them to list the job title for every employee at 
the facility who could come into contact with a minute and non-visible 
amount of beryllium particulate, including employees who do not work in 
proximity to beryllium-releasing processes.
    Similarly, the revised definition will facilitate employer 
compliance with the requirement to provide information and training (in 
accordance with the Hazard Communication standard (29 CFR 1910.1200(h)) 
to each employee who has, or can reasonably be expected to have, 
airborne exposure to or dermal contact with beryllium by the time of 
the employee's initial assignment and annually thereafter (paragraphs 
(m)(4)(i)(A)-(C)). Under this requirement, employees entitled to 
training include all employees who work in beryllium work areas and any 
other employees who may not be working directly with a beryllium-
generating process, but who may nonetheless reasonably be expected to 
have airborne exposure to and/or skin contact with soluble beryllium, 
beryllium solutions, or visible beryllium dust, fumes, or mists in 
concentrations of 0.1 percent by weight or more. As discussed 
previously, OSHA intends the revised definition of dermal contact with 
beryllium to provide employers with a workable indicator for 
determining which employees outside of beryllium work areas should 
receive this information and training.
    Because the change would allow employers to more accurately 
identify areas where provisions related to dermal contact should apply, 
the revised

[[Page 42610]]

definition would also facilitate proper compliance with paragraph 
(i)(1)(ii), which requires employers to ensure employees who have 
dermal contact with beryllium wash any exposed skin at the end of the 
activity, process, or work shift and prior to eating, drinking, 
smoking, chewing tobacco or gum, applying cosmetics, or using the 
toilet. OSHA's revisions to the definition of dermal contact with 
beryllium would prevent employers from speculating that all employees 
in a facility, including those employees who do not work near 
beryllium-releasing processes, must wash their exposed skin because 
they might have come into contact with non-visible beryllium 
particulate or handled articles that contain beryllium. Such an 
interpretation would be contrary to OSHA's intent.
    The revised definition is designed to further improve employer 
compliance with the requirements in paragraph (k) to offer employees a 
medical examination including a medical and work history that 
emphasizes past and present airborne exposure to or dermal contact with 
beryllium (paragraph (k)(3)(ii)(A)), and to provide the examining 
physician or other licensed health care professional (PLHCP) (and the 
agreed-upon CBD diagnostic center, if such an evaluation is required) 
with a description of the employee's former and current duties that 
relate to the employee's airborne exposure to and dermal contact with 
beryllium (paragraph (k)(4)(i)). Because it would improve employers' 
ability to identify when dermal contact with beryllium has occurred or 
could occur, this change would permit employers to accurately complete 
employee medical and work histories and the reports that they must 
provide to examining PLHCPs or CBD diagnostic centers. As with the 
provisions discussed above, OSHA's revisions to the definition of 
dermal contact with beryllium will prevent employers from including 
superfluous information in these medical and work histories and reports 
because they are concerned that an employee might have conceivably had 
skin contact with minute, non-visible beryllium particulate or handled 
beryllium-containing articles outside of a beryllium work area. Such an 
expansive interpretation is again contrary to OSHA's intent.
    OSHA is adding two references to dermal contact with beryllium in 
paragraph (i), Hygiene areas and practices, to account for the final 
rule's changes to the definition of beryllium work area in paragraph 
(b). Paragraph (i) in the previous rule included requirements for 
employers to provide each employee working in a beryllium work area 
with readily accessible washing facilities (paragraph (i)(1)(i)) and a 
designated change room where employees are required to remove their 
personal clothing (paragraph (i)(2)). But, as explained earlier in this 
section, OSHA is revising the definition of beryllium work area so that 
the requirement to establish these areas is no longer triggered on the 
potential for dermal contact with beryllium.
    OSHA intends for the washing facilities and change rooms 
requirements to apply where employees are reasonably expected to have 
dermal contact with beryllium, regardless of whether they work in a 
beryllium work area, as now defined in this final rule. As discussed 
above, there may be employees outside of the beryllium work area that 
may have a reasonable expectation of dermal contact with beryllium. 
Therefore, as was proposed, OSHA is adding two additional references to 
dermal contact with beryllium to paragraph (i). First, OSHA is revising 
paragraph (i)(1) so that the requirements would apply to each employee 
who works in a beryllium work area or who can reasonably be expected to 
have dermal contact with beryllium. Paragraph (i)(1)(i) would then 
require employers to provide washing facilities to all employees who 
can be reasonably expected to have dermal contact with beryllium. 
Second, OSHA is revising paragraph (i)(2) so that employers are 
required to provide change rooms to employees who are required to use 
personal protective clothing or equipment under paragraph (h)(1)(ii), 
if those employees are required by the employer to remove their 
personal clothing. Because paragraph (h)(1)(ii) requires the use of PPE 
where there is a reasonable expectation of dermal contact with 
beryllium, the change to paragraph (i)(2) ensures that the requirement 
for change rooms would continue to protect those employees who can 
reasonably be expected to have dermal contact with beryllium.
    Methods of Compliance.
    Paragraph (f) of the beryllium standard for general industry 
contains provisions covering methods for reducing employee exposure to 
beryllium through the use of a written exposure control plan and 
engineering and work practice controls. Paragraph (f)(1) sets forth the 
requirements for written exposure control plans. Paragraph (f)(1)(i) 
requires employers to establish, implement, and maintain such a plan, 
and paragraphs (f)(1)(i)(A)-(H) specifies the information and 
procedures that must be included in the plan. Paragraph (f)(1)(ii) 
directs employers to review and evaluate each plan at least annually 
and update it under specified circumstances.
    In the 2018 NPRM, OSHA proposed two wording changes to paragraph 
(f)(1) (83 FR at 63754). The first proposed change relates to the 
contents of the written exposure control plan. Under paragraph 
(f)(1)(i)(D), employers were previously required to include procedures 
in their plans for minimizing cross-contamination, ``including 
preventing the transfer of beryllium'' between surfaces, equipment, 
clothing, materials, and articles within beryllium work areas. OSHA 
proposed removing the word ``preventing'' from the regulatory text to 
clarify that these procedures may not totally eliminate the transfer of 
beryllium, but should minimize cross-contamination of beryllium, 
including between surfaces, equipment, clothing, materials, and 
articles.
    The second proposed change involves one of the circumstance when 
employers must update their written exposure control plans. Paragraph 
(f)(1)(ii)(B) of the standard directed employers to update the written 
exposure control plan, as necessary, when they are notified that an 
employee is eligible for medical removal in accordance with paragraph 
(l)(1), referred for evaluation at a CBD diagnostic center, or shows 
signs or symptoms associated with ``airborne exposure to or dermal 
contact with beryllium.'' In the 2018 NPRM, OSHA proposed to replace 
the phrase ``airborne exposure to and dermal contact with beryllium'' 
with ``exposure to beryllium.'' The agency explained that the change 
would simplify the language of the provision while still capturing all 
potential exposure scenarios currently covered. Because these proposed 
changes are merely clarifying, OSHA explained that it expected that 
they would maintain safety and health protections for workers.
    All of the stakeholders that submitted comments related to OSHA's 
proposed changes to the written exposure control plan provisions 
supported the changes (see, e.g., Document ID 0031, p. 2; 0038, p. 31). 
For example, EEI observed that OSHA's discussion of the proposed 
changes were appropriate modifications to the beryllium standard 
(Document ID 0031, p. 2). Materion also supported the proposed changes 
and agreed with OSHA that these proposed changes are merely clarifying, 
and that they will maintain safety and health protections for 
employees. In addition, Materion noted that it ``identifie[d] no 
reduction

[[Page 42611]]

in protection to employees associated with these clarifying language 
revisions'' (Document ID 0038, p. 31).
    After reviewing these comments and considering the record as a 
whole, OSHA has determined that the proposed changes will clarify for 
employers the requirements of the written exposure control plan without 
sacrificing safety and health protections for workers. Therefore, OSHA 
is finalizing the proposed changes to paragraph (f) in this final rule.
    Personal Protective Clothing and Equipment.
    Paragraph (h) of the beryllium standard for general industry 
requires employers to provide employees with personal protective 
clothing and equipment (PPE) where employee exposure exceeds, or can 
reasonably be expected to exceed, the TWA PEL or STEL, or where there 
is a reasonable expectation of dermal contact with beryllium. Paragraph 
(h) also contains provisions for the safe removal, storage, cleaning, 
and replacement of the PPE required by this standard. As explained in 
the 2017 final rule preamble, these PPE requirements are intended to 
protect employees by preventing dermal exposure to beryllium and the 
accumulation of airborne beryllium on PPE, and to protect employees and 
other individuals both inside and outside the workplace from exposures 
that could occur if contaminated clothing were to transfer beryllium 
(82 FR at 2678).
    In the 2018 NPRM, OSHA proposed two changes to paragraph (h). The 
first revision relates to paragraph (h)(2)(i), which addresses removal 
and storage of PPE. Paragraph (h)(2)(i) previously required employers 
to ensure that each employee removes all beryllium-contaminated PPE at 
the end of the work shift, ``at the completion of tasks involving 
beryllium,'' or when PPE becomes visibly contaminated with beryllium, 
whichever comes first. OSHA proposed modifying the phrase ``at the 
completion of tasks involving beryllium'' by changing ``tasks'' to 
``all tasks,'' so that it reads ``at the completion of all tasks 
involving beryllium'' (83 FR at 63754).
    OSHA explained in the 2018 NPRM that this revision to paragraph 
(h)(2)(i) merely clarifies the trigger for when employees must remove 
beryllium-contaminated PPE, consistent with the agency's original 
intent (83 FR at 63754). As expressed in the preamble to the 2017 final 
rule, OSHA intended that PPE contaminated with beryllium should not be 
worn after tasks involving beryllium exposure have been completed for 
the day (82 FR at 2682). Thus, when employees perform multiple tasks 
involving beryllium successively or intermittently throughout the day, 
the employer must ensure that each employee removes all beryllium-
contaminated PPE at the completion of the set of tasks involving 
beryllium, not necessarily after each separate task. If, however, 
employees perform tasks involving beryllium exposure for only a portion 
of a work shift, and then perform tasks that do not involve exposure to 
beryllium, the employer must ensure that employees remove their PPE 
after the beryllium exposure period. Unless the PPE becomes visibly 
contaminated with beryllium, OSHA did not intend this provision to 
require multiple PPE changes throughout the work shift. Thus, the 
proposed revision to paragraph (h)(2)(i) clarifies OSHA's original 
intent.
    OSHA received multiple comments in support of the proposed change 
to paragraph (h)(2)(i). The USW commented that it believes the change 
is reasonable and clarifies the intent of the standard (Document ID 
0033, p. 6). Similarly, Century Aluminum expressed its support for this 
``sensibl[e]'' revision, commenting that it is an example of a logical 
and workable requirement that will produce better work practices and 
habits and, in turn, improve employee health and safety outcomes 
(Document ID 0026, p. 2). In addition, Century Aluminum commented that 
requiring PPE to be changed after every task would ``significantly 
increase costs without increasing employee health and safety'' and 
could actually increase the amount of time employees are exposed to 
beryllium, thus increasing their risk of sensitization and disease 
(Document ID 0026, p. 2). Materion also expressed its general support 
for the ``clarifying language revisions'' to paragraph (h) (Document ID 
0038, p. 32).
    OSHA also received two comments opposing the proposed change to 
paragraph (h)(2)(i). A private citizen commented that, although OSHA 
did not intend to require continuous PPE changes throughout a work 
shift, doing so seemed necessary to limit transmission of contaminant 
between workers and work areas (Document ID 0017). And another private 
citizen commented that if a worker's suit is contaminated, the worker 
should be required to change even if the suit is not visibly 
contaminated (Document ID 0019).
    OSHA does not believe it is necessary for workers to change PPE 
after each work task, or after each instance of PPE contamination, in 
order to limit the spread of beryllium particulate between work areas 
because, absent visible contamination of PPE, any contamination present 
will likely be minute and will not contaminate other work areas to such 
a degree as to materially increase worker exposures. Furthermore, as 
explained in the preamble to the 2017 final rule (82 FR at 2682), 
because the purpose of PPE is to serve as a barrier between an 
employee's body and ambient or surface beryllium, PPE becomes 
contaminated with beryllium immediately as part of its protective 
function. Requiring PPE to be changed upon contamination with any 
amount of beryllium is unreasonable and unnecessary to protect 
employees. This is because contamination of PPE with beryllium during 
work processes does not reduce the effectiveness of PPE or create 
hazards to employees unless sufficient beryllium accumulates on the PPE 
to impair its function or create additional exposures, such as by 
dispersing accumulated beryllium into the air. Moreover, the process of 
changing contaminated PPE can create opportunities for both inhalation 
exposure and dermal contact with beryllium. Accordingly, the use of 
``visibly contaminated'' protects employees from potential exposures 
while changing PPE by limiting the requirement to change PPE during 
work tasks involving beryllium exposure to those circumstances when 
changing it is necessary to maintain its protective function and 
prevent deposits of beryllium from accumulating and dispersing.
    Notably, the USW commented that it believes including the term 
``visibly contaminated'' in the provision provides for employee safety 
(Document ID 0033, pp. 6-7), and Materion similarly stated that 
``visibility [of beryllium-contaminated PPE and equipment] is a 
conservative, stringent'' trigger that ``also has the benefit of 
compliance clarity'' (Document ID 0038, p. 32). After reviewing these 
comments and considering the record as a whole, OSHA finds that the 
proposed change in paragraph (h)(2)(i) is reasonably necessary and 
appropriate and has retained the revised language in the final rule.
    The second proposed revision relates to paragraph (h)(3)(iii), 
which addresses cleaning and replacement of PPE. This paragraph 
required employers to inform in writing the persons or the business 
entities who launder, clean, or repair the PPE required by this 
standard of the potentially harmful effects of ``airborne exposure to 
and dermal contact with beryllium.'' The 2018 NPRM proposed replacing 
the phrase ``airborne exposure to and dermal contact with beryllium''

[[Page 42612]]

with ``exposure to beryllium'' (83 FR at 63755). OSHA explained that 
this change simplifies the language of the provision while still 
capturing all potential exposure scenarios currently covered; and, as 
such, the agency concluded that the revised language will maintain 
safety and health protections for workers. OSHA received no comments on 
this proposed change beyond Materion's general support for the 
clarifying revisions to paragraph (h) as a whole (Document ID 0038, p. 
32). OSHA is therefore retaining the proposed revision to paragraph 
(h)(3)(iii) in the final rule.
    Hygiene Areas and Practices.
    Paragraph (i) of the beryllium general industry standard requires 
that the employer provide employees with readily accessible washing 
facilities, change rooms, and showers when certain conditions are met; 
requires the employer to take certain steps to minimize exposure in 
eating and drinking areas; and prohibits certain practices that may 
contribute to beryllium exposure. As explained in the 2017 final rule, 
OSHA believes that strict compliance with these provisions will reduce 
the amount and duration of employees' airborne exposure and dermal 
contact with beryllium (82 FR at 2683-88).
    In the 2018 NPRM, OSHA proposed three changes to paragraph (i) of 
the general industry standard. The agency proposed the first two 
changes (83 FR at 63755), which apply to paragraphs (i)(1) and (i)(2), 
to maintain the protections included in these paragraphs for employees 
who have dermal contact with beryllium notwithstanding the proposed 
change to the definition of beryllium work area, discussed previously 
in this Summary and Explanation. OSHA proposed the third change, which 
applies to paragraph (i)(4), to clarify the requirements for cleaning 
beryllium-contaminated PPE prior to entering an eating or drinking area 
(83 FR at 63755-56).
    As explained in the previous discussion of changes to the 
definition of beryllium work area, OSHA proposed and has finalized 
these changes to the definition of beryllium work area to clarify where 
a beryllium work area must be established. One of these changes removes 
dermal contact with beryllium as one of the triggers that requires an 
employer to establish a beryllium work area. As explained in the 2018 
NPRM, OSHA intended for the hygiene provisions related to washing 
facilities and change rooms to continue to apply to all employees who 
can reasonably be expected to have dermal contact with beryllium, 
regardless of whether they work in beryllium work areas as defined in 
the revised definition (83 FR at 63755). OSHA accordingly proposed two 
changes.
    First, OSHA proposed a change in the wording of paragraph (i)(1), 
which required that ``[f]or each employee working in a beryllium work 
area,'' the employer must provide readily accessible washing facilities 
to remove beryllium from the hands, face, and neck; and ensure that 
employees who have dermal contact with beryllium wash any exposed skin 
at specific designated times. The 2018 NPRM proposed amending the 
language to apply to ``each employee . . . who can reasonably be 
expected to have dermal contact with beryllium,'' in addition to each 
employee working in a beryllium work area (83 FR at 63768).
    Second, OSHA proposed a change in the wording of paragraph (i)(2), 
which required employers to provide ``employees who work in a beryllium 
work area,'' with a designated change room where employees are required 
to remove their personal clothing. OSHA proposed revising paragraph 
(i)(2) to require employers to provide a designated change room to 
employees who are required to use personal protective clothing or 
equipment under paragraph (h)(1)(ii) of the beryllium standard, instead 
of to employees who work in a beryllium work area (83 FR at 63768). 
Paragraph (h)(1)(ii) of the beryllium standard requires the provision 
and use of appropriate PPE where there is a reasonable expectation of 
dermal contact with beryllium. The requirement to provide change rooms 
would continue to apply only where employees are required to remove 
their personal clothing. As noted above and explained in the 2018 NPRM, 
the proposed changes to paragraphs (i)(1) and (i)(2) were merely 
intended to ensure that the hygiene provisions related to washing 
facilities and change rooms would continue to protect employees who are 
reasonably expected to have dermal contact with beryllium, if the 
agency adopted the proposed revised definition of the term beryllium 
work area.
    OSHA also proposed a third change, which applies to paragraph 
(i)(4), in order to clarify the requirements for cleaning beryllium-
contaminated PPE prior to entering an eating or drinking area. 
Paragraph (i)(4)(ii) required the employer to ensure that no employees 
enter any eating or drinking area with beryllium-contaminated personal 
protective clothing or equipment unless, prior to entry, surface 
beryllium has been removed from the clothing or equipment by methods 
that do not disperse beryllium into the air or onto an employee's body. 
In the 2018 NPRM, OSHA proposed to modify this paragraph to require the 
employer to ensure that, before employees enter an eating or drinking 
area, beryllium-contaminated PPE is cleaned, as necessary, to be as 
free as practicable of beryllium by methods that do not disperse 
beryllium into the air or onto an employee's body (83 FR at 63768). The 
agency explained that this proposed change would clarify that OSHA does 
not expect the methods used to clean PPE prior to entering an eating or 
drinking area to completely eliminate residual beryllium from the 
surface of the PPE if complete elimination is not practicable (83 FR at 
63755-56). OSHA also explained that this is consistent with its 
determination, expressed in the preamble to the 2017 final rule, that 
``as free as practicable'' is ``the most appropriate terminology for 
requirements pertaining to surface cleanliness'' (82 FR at 2687). This 
proposed clarification also aligns the language of paragraph (i)(4)(ii) 
with the language of paragraph (i)(4)(i), which requires employers to 
ensure that beryllium-contaminated surfaces in eating and drinking 
areas are as free as practicable of beryllium. Finally, OSHA explained 
that requiring cleaning only ``as necessary'' would clarify that 
cleaning would not be required if the PPE is already as free as 
practicable of beryllium. OSHA stated that it expected these proposed 
changes to paragraph (i) would maintain safety and health protections 
for workers.
    Commenters expressed broad support for OSHA's proposed changes to 
paragraph (i) (see, e.g., Document ID 0029, p. 1; 0031, p. 2; 0033, p. 
6; 0038, p. 32). For example, EEI observed that the proposed changes to 
this paragraph as a whole were appropriate modifications to the 
beryllium standard (Document ID 0031, p. 2) and DOD generally agreed 
with the proposed changes, commenting that they are evidence based and 
provide greater employee protections (Document ID 0029, p. 1). Materion 
also supported the proposed changes to paragraph (i) as a whole, and 
agreed with OSHA that these proposed changes are merely clarifying, and 
that they will maintain safety and health protections for employees 
(Document ID 0038, p. 32; see also Document ID 0034 and 0035, p. 1 
(supporting and endorsing the comments submitted by Materion)).
    OSHA did not receive any comments that specifically addressed the 
two proposed changes to paragraphs (i)(1) and (i)(2). The agency is 
therefore

[[Page 42613]]

adopting the changes to those paragraphs as proposed.
    Stakeholders also did not submit any comments on the majority of 
the agency's proposed changes to paragraph (i)(4). A DOD comment 
specifically addressed the term ``as free as practicable,'' suggesting 
that because the term is not defined, OSHA should require employers to 
establish procedures for cleaning PPE, document accomplishment of 
procedures, and periodically review compliance with cleaning procedures 
(Document ID 0029, p. 2). The USW supported the proposed change for 
cleaning PPE ``as necessary,'' agreeing with OSHA's explanation in the 
2018 NPRM that requiring cleaning only as necessary would clarify that 
cleaning would not be required if the PPE is already as free as 
practicable of beryllium (Document ID 0033, p. 6).
    The requirement to maintain surfaces as free as practicable of a 
regulated substance is included in other OSHA health standards, such as 
those for lead (29 CFR 1910.1025, 29 CFR 1926.62), chromium (VI) (29 
CFR 1910.1026), and asbestos (29 CFR 1910.1001), and is used elsewhere 
in the beryllium general industry standard (29 CFR 
1910.1024(f)(1)(i)(E), (i)(4)(i), (j)(1)(i), (j)(3)(ii)). Employers 
therefore have the benefit of previous experience interpreting and 
developing methods for compliance with requirements to maintain 
surfaces ``as free as practicable'' of toxic substances, including 
beryllium, as well as guidance from OSHA on compliance with such 
requirements. OSHA discussed the meaning of this phrase in the Summary 
and Explanation of paragraph (j) in the 2017 final rule (82 FR at 
2690), as well as in a 2014 letter of interpretation explaining the 
phrase in the context of the agency's standard for chromium (VI) (OSHA, 
Nov. 5, 2014, Letter of Interpretation, available at https://www.osha.gov/laws-regs/standardinterpretations/2014-11-05). As OSHA 
explained in the 2014 letter of interpretation, OSHA evaluates whether 
a surface is ``as free as practicable'' of a contaminant by the 
efficacy of the employer's program to keep surfaces clean. OSHA intends 
for this term to be broad and performance-oriented, so as to allow 
employers in a variety of industries flexibility to decide what type of 
control methods and procedures are best suited to their beryllium 
operations, and OSHA intends to evaluate compliance based on employer 
efforts under the circumstances present at each facility. Notably, in 
its comment, Materion expressed general support for use of the phrase 
``as free as practicable'' in other parts of the standard, 
acknowledging that this is the workable legal standard OSHA relies on 
in occupational health standards (Document ID 0038, pp. 25-26, 33).
    Moreover, as to DOD's recommendation that OSHA require employers to 
establish procedures for cleaning PPE, document accomplishment of 
procedures, and periodically review compliance with cleaning procedures 
(Document ID 0029, p. 2), OSHA agrees that requiring employers to 
establish PPE cleaning procedures is important. To meet this objective, 
the written exposure control plan provision in paragraph (f)(1)(i) 
requires employers to establish, implement, and maintain a written 
exposure control plan, which must contain, among other things, 
procedures for removing, laundering, storing, cleaning, repairing, and 
disposing of beryllium-contaminated personal protective clothing and 
equipment, including respirators. Paragraph (f)(1)(ii) requires 
employers to review and evaluate the effectiveness of each written 
exposure control plan at least annually and update it, as necessary, if 
certain specified events occur. OSHA believes that these requirements 
satisfy DOD's concerns while still allowing employers the flexibility 
to establish, implement, and maintain a plan that works best for their 
individual workplaces.
    After reviewing these comments and considering the record as a 
whole, OSHA believes that the term ``as free as practicable'' is 
understood by employers through its use in other standards and as 
explained in letters of interpretation and other guidance, and does not 
believe that defining the term in this standard or establishing 
specific PPE cleaning and documentation procedures is necessary. OSHA 
also believes the proposed change is necessary to align the language of 
paragraphs (i)(4)(i) and (i)(4)(ii). OSHA did not receive any comments 
objecting to the revised requirement that PPE be ``cleaned, as 
necessary,'' which makes clear that cleaning would not be required if 
PPE is already as free as practicable of beryllium. OSHA believes these 
changes clarify the agency's intent without sacrificing safety and 
health protection for workers. The agency is therefore adopting the 
changes as proposed to paragraph (i)(4)(ii) in this final rule.
    Disposal, Recycling, and Reuse.
    Paragraph (j) of the beryllium general industry standard requires 
employers to adhere to certain housekeeping practices. Paragraphs 
(j)(1) and (j)(2) require employers to maintain all surfaces in 
beryllium work areas as free as practicable of beryllium, promptly 
clean spills and emergency releases of beryllium, and use appropriate 
cleaning methods, while paragraph (j)(3) requires employers to take 
certain actions when transferring materials that contain at least 0.1 
percent beryllium by weight or that are contaminated with beryllium 
outside a plant for the purpose of disposal, recycling, or reuse. 
Specifically, paragraph (j)(3)(i) requires that, except for intra-plant 
transfers, when transferring these materials for any of these purposes 
the employer must label the materials in accordance with paragraph 
(m)(3). Paragraph (j)(3)(ii) further requires that those materials 
designated for disposal must be either cleaned to be as free as 
practicable of beryllium or placed in enclosures that prevent the 
release of beryllium-containing particulate or solutions under normal 
conditions of use, storage, or transport, such as bags or containers. 
Paragraph (j)(3)(iii) requires the same for materials designated for 
recycling or reuse.
    The final rule makes a number of changes to the previous 
requirements of paragraph (j)(3). As originally promulgated in the 2017 
final rule, paragraph (j)(3)(i) required that materials designated for 
disposal be disposed of in sealed, impermeable enclosures, such as bags 
or containers, that are labeled according to paragraph (m)(3) of the 
beryllium standard, but did not allow employers the alternative option 
of cleaning such material to be as free as practicable of beryllium. 
Further, both paragraphs (j)(3)(i) and (j)(3)(ii) required that 
materials be transferred in sealed, impermeable bags, but did not 
further define this requirement. Finally, the original paragraph (j)(3) 
did not explicitly address transfers of materials for the purpose of 
reuse.\17\
---------------------------------------------------------------------------

    \17\ Subsequent to the 2017 final rule, the 2018 direct final 
rule clarified that the requirements of paragraph (j)(3) do not 
apply to materials containing only trace amounts of beryllium (less 
than 0.1 percent by weight).
---------------------------------------------------------------------------

    After the promulgation of the final rule in 2017, OSHA learned that 
some stakeholders were confused about these requirements. For example, 
stakeholders were uncertain about what types of enclosures would be 
acceptable under the standard. To help alleviate stakeholder confusion, 
OSHA proposed a number of changes in the 2018 NPRM that make explicit 
what had been intended in the 2017 final rulemaking. Specifically, OSHA 
proposed adding provisions explicitly addressing transferring materials 
for reuse; clarifying that the rule's requirements for disposal, 
recycling, and reuse do not apply to intra-plant transfers; and

[[Page 42614]]

allowing for the cleaning of materials bound for disposal. The agency 
also proposed reorganizing the paragraph's two paragraphs into three 
that focused on specific topics and making minor changes in terminology 
to improve the clarity and internal consistency of the standard. Only 
one of the changes is substantive, which is the inclusion of the option 
for cleaning instead of enclosure; the remaining edits merely clarify 
OSHA's original intent. As discussed in more detail below, OSHA is 
retaining the changes proposed in the 2018 NPRM in the final rule with 
only one clarifying revision. With these changes, final paragraph 
(j)(3) provides comprehensive, easy to understand requirements for 
employers that are transferring materials outside of their plants for 
disposal, recycling, or reuse that contain at least 0.1 percent 
beryllium by weight or are contaminated with beryllium.
    In response to the 2018 NPRM, a number of commenters, including the 
DOD, Materion, the USW, and EEI, expressed support for the proposed 
revisions generally (see, e.g., Document ID 0029, p. 1; 0038, pp. 32-
33; 0033, p. 5; 0031, p. 2). For example, DOD stated that the revisions 
``are evidence based and provide greater employee protection'' 
(Document ID 0029, p. 1). Similarly, Materion commented that the 
revisions ``will provide improved understanding and more practical 
meaning to manufacturers by improving the clarity and internal 
consistency of the standard'' (Document ID 0038, p. 32).
    Stakeholders also offered specific comments on the individual 
changes OSHA proposed to paragraph (j)(3). OSHA outlines each of those 
changes below, along with any specific comments received on those 
changes and the agency's final determination as to whether to retain 
the proposed change in the final rule.
    OSHA proposed seven changes to the 2017 version of paragraph 
(j)(3). First, the agency proposed that the provisions address reuse 
(in addition to disposal and recycling). As noted above, paragraph 
(j)(3) of the 2017 final rule contained requirements for the labeling 
and enclosure of certain materials designated for disposal and the 
labeling and either enclosure or cleaning of materials designated for 
recycling. The preamble to the 2017 final rule made clear that 
paragraph (j)(3)'s requirements related to recycling also applied to 
reuse (see 82 FR at 2695-96), but the standard did not explicitly 
advise employers of this requirement. To make the agency's original 
intent clear, OSHA proposed in the 2018 NPRM to include provisions 
addressing reuse. This proposed change was intended to ensure that 
workers who may be exposed to materials containing or contaminated with 
beryllium that are directly reused without first being processed into a 
different form are appropriately protected. For example, a manufacturer 
may sell a by-product from a process to a downstream manufacturer that 
would reuse the by-product as a component of a new product. Recycling, 
on the other hand, typically involves the further processing of waste 
materials to separate and recover various components of value. OSHA did 
not receive any specific comments on the addition addressing reuse of 
materials in paragraph (j)(3). Therefore, OSHA has finalized the 
inclusion of requirements related to the reuse of materials in 
paragraph (j)(3).
    Second, OSHA proposed reorganizing paragraph (j)(3)'s original two 
paragraphs (one on disposal, one on recycling--with the labeling 
requirements specified in each) into three new paragraphs with each 
paragraph focusing on a different topic. Proposed paragraph (j)(3)(i) 
spelled out the labeling requirements, proposed paragraph (j)(3)(ii) 
included the requirements for cleaning or enclosing materials bound for 
disposal, and proposed paragraph (j)(3)(iii) laid out the obligations 
as to materials designated for recycling or reuse. The proposed 
reorganization allowed the agency to incorporate the new reuse 
requirements, while also setting out each distinct obligation clearly. 
OSHA further explained in the proposal that this is not a substantive 
change to the standard, but rather only a reorganization of the 
existing provisions (see 83 FR at 63763). One commenter, Materion, 
addressed the reorganization of paragraph (j)(3), noting that the 
change would improve the clarity and employers' understanding of the 
provisions (Document ID 0038, p. 32). Having received no comments to 
the contrary, OSHA is adopting the new structure to paragraph (j)(3) in 
the final rule.
    Third, OSHA proposed a simplifying change relating to the 
description of which materials must be labeled and cleaned or enclosed 
prior to transfer for disposal, recycling, or reuse. The 2018 direct 
final rule required employers to label and clean or enclose two groups 
of materials: (1) Materials that contain beryllium in concentrations of 
0.1 percent by weight or more, and (2) materials that are contaminated 
with beryllium. In the 2018 NPRM, OSHA proposed a simplifying edit to 
the first group of materials. Specifically, the agency proposed 
replacing the phrase materials ``that contain beryllium in 
concentrations of 0.1 percent by weight or more'' with a shorter 
phrase: Materials ``that contain at least 0.1 percent beryllium by 
weight.'' As the agency explained in the 2018 NPRM, this change is 
meant to simplify the language and does not change the meaning. OSHA 
did not receive any comments on the proposed simplification of this 
language. Therefore, OSHA is adopting the new phrase ``that contain at 
least 0.1 percent beryllium by weight'' in paragraph (j)(3) in the 
final rule.
    Fourth, OSHA proposed adding an explicit exemption for materials 
transferred within a plant from the cleaning and enclosure requirements 
in new paragraphs (j)(3)(ii) and (iii). While this exemption was not 
explicitly included in the regulatory text of the 2017 final rule, its 
inclusion in this final rule is not a substantive change. As OSHA noted 
in the 2018 NPRM, the agency never intended the provisions of paragraph 
(j)(3) to require employers to clean or enclose materials to be used in 
another location within the same facility (83 FR at 63756 (citing 82 FR 
at 2696)).\18\ Thus, the inclusion of the exemption in the proposed 
regulatory text simply makes the agency's intent plain.
---------------------------------------------------------------------------

    \18\ As OSHA noted in the 2018 NPRM, employees who may be 
exposed to these materials during intra-plant transfers will not go 
unprotected. On the contrary, other provisions of the beryllium 
standard require employers to communicate possible hazards to these 
employees and protect them during such transfers (see, e.g., 
paragraph (f), Methods of compliance; paragraph (g), Respiratory 
protection; paragraph (h), Personal protective clothing and 
equipment; paragraph (m), Communication of hazards).
---------------------------------------------------------------------------

    The USW supported the proposed inclusion of the ``intra-plant 
transfer'' exemption in the regulatory text (Document ID 0033, p. 5). 
Specifically, the USW pointed to its comments on OSHA's 2015 NPRM, 
which stated that the agency should not require all materials to be 
decontaminated or sealed in an enclosure (Document ID 0033, p. 5). 
Rather, the USW explained, the initial intent of the corresponding 
provision of the model standard it drafted jointly with Materion was 
``to ensure that materials leaving a facility and designated for 
recycling be containerized or visibly clean'' (Document ID 0033, p. 5) 
(emphasis added).
    DOD did not submit a comment on the proposed intra-plant transfer 
exception, but its comment on another part of paragraph (j)(3) 
suggested that it understood the paragraph to apply to intra-plant 
transfers (see Document ID

[[Page 42615]]

0029, p. 1 (``To support the proposed revisions that require surface 
cleaning of equipment and materials to remove beryllium before 
recycling, re-use, or intra-plant transfers, we recommend the use of 
the Department of Energy's (DOE's) cleanliness standards as specified 
in Title 10 Code of Federal Regulations Part 850.'')).\19\ As discussed 
below, OSHA does not agree with DOD's suggested use of DOE's surface 
limits and, as already stated, OSHA never intended to require employers 
to clean or enclose materials transferred within a single plant. 
Rather, the provisions in paragraph (j)(3) have always been intended to 
protect employees after the materials leave the facility.
---------------------------------------------------------------------------

    \19\ DOD's suggestion regarding DOE's cleanliness standards is 
addressed below in this section of this final rule as part of the 
discussion of the seventh and final proposed change to paragraph 
(j)(3) relating to the cleaning of materials designated for 
disposal, recycling, or reuse.
---------------------------------------------------------------------------

    Materion commented that beryllium-containing scrap metal or wastes 
are, in most cases, recycled internally ``either within or between 
facilities,'' but companies ``also recycle scrap or purchase scrap on 
the open market'' (Document ID 0038, p. 32). Materion further asserted 
that OSHA's regulation ``should not be construed as potentially 
limiting the environmentally beneficial recycling of metals'' (Document 
ID 0038, p. 32). OSHA agrees that paragraph (j)(3)'s requirements 
should not be read to discourage the reuse or recycling of metals and 
reads Materion's statements regarding the manner in which companies 
recycle scrap metal or wastes (i.e., within or between facilities or on 
the open market) as purely informational. However, the agency notes 
that this comment could be read to suggest that the exception for items 
transferred within a facility also applies to items transferred between 
two facilities owned by the same employer. Such an interpretation would 
be incorrect--the intra-plant transfer exception only exempts transfers 
within a single plant; material transfers between plants are not 
excluded, regardless of plant ownership.
    This comment also alerted the agency to a potential ambiguity in 
the text of proposed paragraph (j)(3)(i). Specifically, OSHA realized 
that the phrase ``to another party'' could be read to suggest that 
transfers between two facilities owned by the same employer are 
exempted from the labeling requirements in paragraph (j)(3)(i). Again, 
this was not the agency's intent. As noted above, the proposed addition 
of the explicit intra-plant transfer exception in paragraphs (j)(3)(ii) 
and (iii) was not a substantive change--the agency never intended to 
require employers to clean or enclose materials transferred within a 
single plant. The reorganization of paragraph (j)(3) was also not a 
substantive change; it merely allowed the agency to make clear that the 
labeling requirements apply regardless of whether the employer 
transfers materials for the purpose of disposal, recycling, or reuse 
(83 FR at 63763, 63756). Because the labeling requirements were part of 
paragraphs (j)(3)(i) and (ii) in the 2017 final rule, to which the 
intra-plant exemption applied, and were simply moved to a new stand-
alone paragraph without substantive change, the scope of those 
activities requiring labeling has not changed. Put another way, the 
intra-plant exemption continues to apply to the labeling provision to 
the same extent it did prior to the proposal. And, more to the point, 
the labeling requirement continues to apply to all other transfers for 
purposes of disposal, recycling, or reuse, regardless of whether they 
involve transfers between two locations operated by the same employer.
    If proposed paragraph (j)(3)(i) was interpreted to only require the 
labeling of materials transferred to another employer (rather than 
another facility), then an employer could place materials that were 
designated for reuse in an enclosure and transfer them to another 
facility without a label, so long as the employer owned the second 
facility. This scheme could potentially put both the transferring and 
receiving employees at risk by failing to appropriately apprise them of 
the presence of beryllium-containing materials and the hazardous nature 
of beryllium exposure.
    Moreover, such an interpretation could lead to inconsistencies or 
conflicts with the Hazard Communication standard (HCS) (29 CFR 
1910.1200), which requires labeling for all hazardous chemicals leaving 
a worksite regardless of destination. This is clearly laid out in 
OSHA's Hazard Communication directive (CPL 02-02-079): ``Manufacturers, 
importers, and distributors are required to ensure that each container 
of hazardous chemicals is appropriately labeled. Labeling requirements 
apply for shipped containers leaving the workplace regardless of 
whether the intended destination is interstate or intrastate.''
    Although the agency's intent was always to exempt only intra-plant 
transfers from the labeling requirement, OSHA sees value in eliminating 
any ambiguity and ensuring that labeling is consistent with the 
requirements of the HCS. Therefore, the agency is revising the text of 
paragraph (j)(3)(i) to more explicitly match the intent expressed in 
both the 2017 rule and the 2018 proposal. Specifically, OSHA is 
revising paragraph (j)(3)(i) in the final rule to strike the phrase 
``to another party'' and add the ``except for intra-plant transfers'' 
language that is found in paragraphs (j)(3)(ii) and (iii). Final 
paragraph (j)(3)(i), therefore, provides that except for intra-plant 
transfers, when the employer transfers materials that contain at least 
0.1 percent beryllium by weight or are contaminated with beryllium for 
disposal, recycling, or reuse, the employer must label the materials in 
accordance with paragraph (m)(3) of this standard.
    In summary, OSHA is adopting the proposed addition of the explicit 
intra-plant exception in final paragraphs (j)(3)(ii) and (iii). No 
commenters opposed these revisions and, therefore, OSHA has decided to 
retain them, unchanged from the proposal (see Document ID 0038, p. 32; 
0033, p. 5). The agency is also revising proposed paragraph (j)(3)(i) 
to explicitly incorporate the exception. As explained in detail above, 
none of these changes are substantive, but OSHA expects the clarified 
language will aid employers in understanding and, thus, carrying out 
their responsibilities under these provisions.
    OSHA's fifth proposed change to paragraph (j)(3) focused on the 
requirement to place items in ``sealed, impermeable enclosures.'' 
Specifically, paragraph (j)(3)(i) in the 2017 final rule required 
employers to place certain materials bound for disposal in ``sealed, 
impermeable enclosures, such as bags or containers.'' Paragraph 
(j)(3)(ii) in the 2017 final rule also required enclosure of certain 
materials that had not been appropriately cleaned. In the preamble to 
the 2017 final rule, OSHA explained that it intended these requirements 
to be broad and performance-oriented and clarified that the term 
``impermeable'' was not intended to mean absolutely impervious to 
rupture but, rather, that the enclosures would not allow materials to 
escape under normal conditions of use (82 FR at 2695). Nevertheless, 
the agency learned that confusion around the enclosure requirement 
remained.
    To alleviate the confusion regarding the enclosure requirements, 
OSHA proposed in the 2018 NPRM to clarify the ``sealed, impermeable 
bag'' requirement to make explicit what had been intended in the 2017 
final rulemaking: That employers must utilize enclosures that prevent 
the release of beryllium-containing

[[Page 42616]]

particulate or solutions under normal conditions of use, storage, or 
transport. The agency further explained that the proposed change would 
reinforce the requirement that employers select the appropriate type of 
container to prevent release based on the form of beryllium and how it 
is normally handled. For example, a container that prevents the release 
of a beryllium particulate may not be effective in preventing the 
release of a beryllium solution.
    One commenter, Materion, submitted comments specific to this 
proposed change (Document ID 0038, p. 32). Materion was supportive of 
the revision, noting that it will significantly improve understanding 
of the requirements for containerization and transport of recycled 
materials and asserting its belief that without the proposed changes 
the disposal and recycling provision are technologically and 
economically infeasible (Document ID 0038, p. 32). According to 
Materion, the change appropriately accommodates the various physical 
properties of beryllium materials being recycled, the ``many different 
applications resulting in many types of container configurations,'' and 
the ``many types of transfer mechanisms and end use processing 
applications'' (Document ID 0038, p. 32). No commenters opposed these 
revisions and, therefore, OSHA has decided to retain them unchanged 
from the proposal.
    Unlike the previous five proposed changes, the sixth proposed 
change was more than a clarifying change from the 2017 final rule. 
Under the 2017 final rule, employers could either clean or enclose 
materials designated for recycling. Materials designated for disposal, 
however, could only be enclosed; the option to clean the materials was 
not available. The difference in the two provisions stemmed from the 
concern that municipal and commercial disposal workers should be 
protected from exposure to beryllium from contact with materials 
discarded from beryllium work areas in general industry by placing 
those materials in enclosed containers. However, as OSHA explained in 
the 2018 NPRM, the agency had not considered situations where it would 
be impractical to require enclosure because the materials in question 
were large items, such as machines or structures, that may contain at 
least 0.1 percent beryllium by weight or be contaminated with 
beryllium, rather than more common items, such as beryllium scrap metal 
or shavings.
    With that situation in mind, OSHA reconsidered its earlier 
determination and preliminarily determined that workers handling items 
designated for disposal, like workers handling items designated for 
recycling or reuse, would be just as protected from exposure to 
beryllium if the items are cleaned to be as free as practicable of 
beryllium as if the items were placed in containers. In accordance with 
this preliminary determination, OSHA in the 2018 NPRM proposed adding 
the cleaning option to paragraph (j)(3)(ii). The agency explained that, 
regardless of whether an employer chooses to clean or enclose materials 
designated for disposal, the labeling requirements under proposed 
paragraph (j)(3)(i) would apply and would require that the materials 
designated for disposal be labeled in accordance with paragraph (m)(3) 
of this standard. It further noted its expectation that these proposed 
changes would maintain safety and health protections for workers.
    OSHA received no comments on this proposed revision and has 
therefore finalized it as proposed.
    The seventh and final proposed change also relates to the cleaning 
of materials designated for disposal, recycling, or reuse. Paragraph 
(j)(3)(ii) in the 2017 final rule required the specified materials to 
be cleaned to be as free as practicable of surface beryllium 
contamination. However, the 2017 final rule did not define the term 
``surface beryllium contamination'' and other parts of the 2017 final 
rule used the term ``as free as practicable'' without the ``surface 
beryllium contamination'' modifier. To alleviate any potential 
confusion stemming from the agency's use of this new, undefined term, 
OSHA proposed to eliminate any potential confusion by removing the 
phrase ``surface beryllium contamination.''
    OSHA did not receive any comments that directly addressed the 
removal of this phrase but one stakeholder, DOD, offered a suggestion. 
Specifically, DOD recommended the use of the Department of Energy's 
(DOE's) cleanliness standards as specified in Title 10 Code of Federal 
Regulations Part 850 (Document ID 0029, p. 1). According to DOD, these 
standards are ``generally-acceptable criteria for surface contamination 
and were adopted based on DOE's assessment of practical cleanliness 
levels and proven feasibility'' (Document ID 0029, p. 1).
    OSHA agrees that DOE's standards might be a useful reference for 
employers seeking advice on how to clean materials prior to transfer 
for disposal, reuse, or recycling or how to determine the effectiveness 
of existing cleaning efforts and that wipe sampling in general can be a 
useful tool for employers to provide feedback on their cleaning 
procedures. To the extent that DOD's recommendation was intended to 
suggest an amendment to the proposed provisions, however, OSHA does not 
believe such an amendment is appropriate. As discussed in the 2018 
NPRM, the ``as free as practicable'' standard is well-understood by the 
regulated community. OSHA has used the phrase in existing substance-
specific standards, including those for lead (29 CFR 1910.1025, 29 CFR 
1926.62), chromium (VI) (29 CFR 1910.1026), and asbestos (29 CFR 
1910.1001), and has previously discussed its meaning in a 2014 letter 
of interpretation explaining the phrase in the context of the chromium 
standard (OSHA, Nov. 5, 2014, Letter of Interpretation, available at 
https://www.osha.gov/laws-regs/standardinterpretations/2014-11-05).
    Additionally, as discussed in the Summary and Explanation of the 
definition of the term dermal contact with beryllium, the best 
available scientific evidence on adverse health effects from dermal 
contact with beryllium does not provide sufficient information to link 
risk of adverse health effects with specific levels of surface 
contamination. Therefore, the agency has chosen not to require a 
specific target level of surface contamination for any of the surface 
cleanliness requirements of the beryllium standards. Instead, the 
agency has determined that the more performance-oriented ``as free as 
practicable'' standard for cleaning--rather than a more prescriptive 
requirement--is appropriate. The agency finds that the use of the 
broader standard will better serve employees by allowing employers in a 
variety of industries flexibility to decide what type of control 
methods and procedures are best suited to their beryllium operations.
    Having received no other comments on this proposed provision, OSHA 
strikes the phrase ``surface beryllium contamination'' from the 
regulatory text, as proposed.
    In summary, OSHA is finalizing (j)(3) as proposed in 2018, except 
for the clarifying revision in paragraph (j)(3)(i), which explicitly 
incorporates the intra-plant exception found in paragraphs (j)(3)(ii) 
and (j)(3)(iii). OSHA has based this decision on the record and has 
determined this will maintain or enhance worker protections.
    Medical Surveillance.
    Paragraph (k) of the beryllium standard for general industry (29 
CFR 1910.1024) addresses medical surveillance requirements. The 
paragraph specifies which employees

[[Page 42617]]

must be offered medical surveillance, as well as the frequency and 
content of medical examinations. It also sets forth the information 
that must be provided to the employee and employer. The purposes of 
medical surveillance for beryllium are (1) to identify beryllium-
related adverse health effects so that appropriate intervention 
measures can be taken; (2) to determine if an employee has any 
condition that might make him or her more sensitive to beryllium 
exposure; and (3) to determine the employee's fitness to use personal 
protective equipment such as respirators. The inclusion of medical 
surveillance in the beryllium standard for general industry is 
consistent with Section 6(b)(7) of the OSH Act (29 U.S.C. 655(b)(7)), 
which requires that, where appropriate, medical surveillance programs 
be included in OSHA health standards to aid in determining whether the 
health of employees is adversely affected by exposure to the hazards 
addressed by the standard.
    In the 2018 NPRM, OSHA proposed two sets of changes to paragraph 
(k). The first set of changes proposed is in paragraph (k)(2), which 
specifies when and how frequently medical examinations were to be 
offered to those employees covered by the medical surveillance program. 
Paragraph (k)(2)(i)(B) of the standard requires the employer to provide 
a medical examination within 30 days after determining that the 
employee shows signs or symptoms of CBD or other beryllium-related 
health effects or that the employee has been exposed to beryllium in an 
emergency. After publication of the 2017 final rule, stakeholders 
suggested to OSHA that, for individuals exposed one-time during an 
emergency, 30 days may be insufficient to detect beryllium 
sensitization, so a longer timeframe for medical examinations may be 
more appropriate (83 FR at 63757).
    In the 2018 NPRM, OSHA acknowledged uncertainty regarding the time 
period in which sensitization may occur following a one-time exposure 
to a significant concentration of beryllium in an emergency (83 FR at 
63757). In fact, beryllium sensitization can occur several months or 
more after initial exposure to beryllium among workers with regular 
occupational exposure to beryllium (see 83 FR at 63757 (citing 82 FR at 
2530, 2533)). Based on this evidence and stakeholder feedback, OSHA 
proposed removing the requirement for a medical examination within 30 
days of exposure in an emergency, under paragraph (k)(2)(i)(B), and 
adding paragraph (k)(2)(iv), which would require the employer to offer 
a medical examination at least one year after but no more than two 
years after the employee is exposed to beryllium in an emergency. OSHA 
requested comments on the appropriateness of this change (83 FR at 
63757).
    Several stakeholders commented on this issue. NJH supported 
extending the time to offer medical surveillance to one year after an 
emergency because 30 days following a high exposure may not be enough 
time to detect beryllium sensitization (Document ID 0022, p. 8). 
Materion also agreed with the proposed one-to-two-year timeframe for 
examinations following exposure during an emergency because 30 days may 
be too soon to detect an immunological change using the BeLPT (Document 
ID 0038, p. 33). DOSH similarly commented that delaying the medical 
examination to one year might improve the detection of sensitization 
because it may take several months to detect it (Document ID 0023, p. 
2). DOSH also expressed concern, however, that workers would not get 
counseling about signs and symptoms of beryllium-related conditions, an 
occupational history review, and other medical advice which may allow 
for the worker to identify a developing condition within the first year 
after exposure (Document ID 0023, p. 2). DOSH added that if the medical 
examination will be delayed, it would be appropriate to have a 
requirement for additional training or a brief medical consultation for 
workers who are not knowledgeable about beryllium and the potential 
medical conditions that may be triggered by exposure (Document ID 0023, 
pp. 2-3).
    The ACOEM and NSSP shared DOSH's concerns regarding potential 
delays in consultations and counseling (Document ID 0024, p. 2; 0027, 
p. 4). The NSSP recommended an earlier discussion with employees 
exposed in an emergency to address their individual concerns, the 
medical path forward, options available, and to answer any questions 
the employees might have (Document ID 0027, p. 4). It suggested that 
the medical examination could then be scheduled in keeping with the 
individual employee's medical needs (Document ID 0027, p. 4). ACOEM 
opposed the change, arguing that workers who are exposed to beryllium 
in an emergency deserve prompt medical evaluation to understand the 
potential health risks, receive baseline testing, if desired, and to 
receive medical counseling (Document ID 0024, p. 2). ACOEM maintained 
that it would be ``an extremely insensitive and harsh change in 
policy'' to require exposed workers to wait more than a year to receive 
professional medical advice (Document ID 0024, p. 2). On the other 
hand, Materion argued that the standard protects workers who may have 
been exposed in an emergency, regardless of when the emergency 
occurred, by requiring employers to make medical surveillance available 
to any employees showing signs and symptoms of CBD or other beryllium-
related health effects (Document ID 0038, p. 33). Specifically, 
paragraph (k)(2)(i)(B) requires employers to provide an examination to 
these employees within 30 days of determining that the employee shows 
signs or symptoms of CBD.
    After considering these comments and the record as a whole on this 
issue, OSHA reaffirms its preliminary belief that testing conducted 
during the proposed time period of one to two years is more likely to 
detect sensitization than testing conducted 30 days following emergency 
exposure (82 FR at 63757). Nevertheless, DOSH, the NSSP, and ACOEM's 
concerns about possible delays in medical consultations and 
examinations and lack of employee knowledge of potential health effects 
prompted the agency to reevaluate the standard's medical surveillance 
and training triggers to determine if any employees could potentially 
be exposed in an emergency but may not be knowledgeable about symptoms, 
health effects, and medical surveillance because they have not been 
trained, or if any employees might be exposed but have not recently 
received a medical examination during which they had the opportunity to 
talk with a PLHCP about exposure to beryllium.
    First, OSHA considered the population of employees affected by 
emergencies. As noted in the 2018 NPRM, OSHA estimates that a very 
small number of employees, likely less than 0.1 percent of the affected 
population, would be affected by emergencies in a given year (83 FR at 
63764). Second, OSHA considered if any of the small number of employees 
exposed in an emergency in a given year would not be knowledgeable 
about symptoms, health effects, and medical surveillance through the 
training provided under paragraph (m)(4) at the time of emergency and, 
thus, might need such training after exposure during an emergency. 
Paragraph (m)(4)(i) requires the employer to provide information and 
training in accordance with the Hazard Communication Standard (HCS), 29 
CFR 1910.1200(h), for each employee who has, or can reasonably be 
expected to have, airborne exposure to or dermal contact with 
beryllium. Final paragraph (m)(4)(ii) requires employers to ensure that 
each

[[Page 42618]]

employee who is, or can reasonably be expected to be, exposed to 
airborne beryllium can demonstrate knowledge and understanding of a 
number of specified topics, including (1) the health hazards associated 
with airborne exposure to and dermal contact with beryllium, including 
signs and symptoms of CBD; (2) the purpose and a description of the 
medical surveillance program under paragraph (k) of the standard, 
including risks and benefits of each test to be offered; (3) the 
purpose and a description of the medical removal protection provided 
under paragraph (l) of the standard; and (4) the contents of the 
standard.
    OSHA expects that the vast majority of employees who could be 
exposed to beryllium in an emergency are those who are regularly 
exposed to beryllium as part of their normal work duties performed near 
processes involving beryllium. Therefore, most of those employees are 
already likely to be trained in accordance with the HCS under paragraph 
(m)(4)(i) because the training requirements under paragraph (m)(4)(i) 
are triggered by actual, or reasonably anticipated, airborne exposure 
at any level or dermal contact with beryllium. In addition, OSHA 
anticipates that most of these employees would also be knowledgeable 
about beryllium-related health effects, medical surveillance, medical 
removal, and the remainder of the standard, as required by paragraph 
(m)(4)(ii). Nevertheless, if an employee who had not been trained in 
accordance with paragraph (m)(4) or was not knowledgeable of the 
subjects covered in paragraph (m)(4)(ii) was exposed in an emergency, 
the standard would require that the employee be trained after the 
emergency because the exposure during the emergency would cause them to 
meet the standard's training triggers. In other words, the standard 
already provides for training of the very small number of untrained or 
unknowledgeable employees who might be exposed during an emergency.\20\
---------------------------------------------------------------------------

    \20\ OSHA notes that the standard would require additional 
training for workers who were exposed during an emergency who had 
already been trained if the employer realized that those workers 
were not knowledgeable about topics such as the potential medical 
conditions which may result from exposure to beryllium or symptoms 
that may trigger a medical examination (see paragraph (m)(4)(ii)(A); 
see also additional training requirements under paragraph 
(m)(4)(iii)).
---------------------------------------------------------------------------

    Third, OSHA considered if any employees exposed during an emergency 
would likely not have received a recent examination under the standard. 
Under paragraph (k)(1)(i), the employer must make medical surveillance 
available to four groups of employees: (A) Employees who are or are 
reasonably expected to be exposed at or above the action level for more 
than 30 days per year, (B) employees who show signs or symptoms of CBD 
or other beryllium-related health effects, (C) employees who are 
exposed to beryllium during an emergency, and (D) employees whose most 
recent written medical surveillance opinion required by paragraph 
(k)(6) or (k)(7) of the standard recommends periodic medical 
surveillance. Under paragraph (k)(2)(ii), employees who continue to 
meet above-triggers (A), (B), or (D) of the standard receive 
examinations at least every two years after their most recent 
examination. Employees previously exposed in an emergency (and all 
other employees who have received an examination, but no longer meet 
the criteria for periodic examinations) continue to be offered a 
standardized BeLPT or equivalent test at least every two years, unless 
they are confirmed positive (paragraph (k)(3)(i)(E); 82 FR at 2705).
    As noted above, OSHA expects that the vast majority of employees 
who could be exposed to beryllium in an emergency are those who are 
regularly exposed to beryllium as part of their normal work duties that 
are performed near processes involving beryllium. As a result, OSHA 
expects that the majority of employees who could be exposed to 
beryllium in an emergency are likely to be those who meet the trigger 
for periodic medical surveillance under paragraph (k)(1)(i)(A) (i.e., 
they are or are reasonably expected to be exposed at or above the 
action level for more than 30 days per year). Thus, they have likely 
had an opportunity to consult with a PLHCP at a minimum of every two 
years (paragraph (k)(2)(ii)). Other employees exposed during an 
emergency may have also had a recent examination because they have 
recently met one of the other triggers, such as experiencing signs or 
symptoms of CBD or other beryllium-related health effects. OSHA 
recognizes, however, that a much smaller number of employees, such as 
office and warehouse workers, who do not have regular exposures to 
beryllium at or above the action level and have also not met one of the 
other medical surveillance triggers, could potentially be exposed to 
beryllium in an emergency. These employees may have never received a 
medical examination or a BeLPT or equivalent test.
    OSHA agrees with ACOEM that it is unacceptable to have employees 
who have not recently been offered a medical examination under the 
beryllium standard wait for a year or more for a medical consultation 
and examination after exposure during an emergency. These employees may 
not have baseline information on their health status, and they may not 
have had the opportunity to speak to a PLHCP to ask questions related 
to their concerns, such as possible health risks, symptoms, and medical 
interventions. In contrast, employees who had a medical examination 
within the previous two years would have a baseline and have had the 
opportunity to speak with a health professional. Therefore, to 
adequately meet the needs of all employees who may be exposed in an 
emergency, OSHA is deleting final paragraph (k)(2)(iv) and replacing it 
with paragraphs (k)(2)(iv)(A) and (k)(2)(iv)(B).
    New paragraph (k)(2)(iv)(A) addresses the needs of the very small 
group of employees who are exposed in an emergency but have not 
received a medical examination under paragraph (k)(1)(i) within the 
previous two years. Specifically, paragraph (k)(2)(iv)(A) requires that 
if an employee is exposed to beryllium during an emergency and has not 
received a medical examination under paragraph (k)(1)(i) within the 
previous two years, then the employer must provide that employee with a 
medical examination within 30 days of the date of the emergency. New 
paragraph (k)(2)(iv)(B), on the other hand, focuses on employees who 
are exposed during an emergency, but have recently received an 
examination. Under paragraph (k)(2)(iv)(B), if an employee has received 
a medical examination under paragraph (k)(1)(i) within the previous two 
years, then the employer would be required to offer that employee a 
medical examination that meets the requirements of the standard at 
least one year but no more than two years after the employee was 
exposed to beryllium in an emergency.
    OSHA concludes that it is appropriate to provide a medical 
examination within 30 days after the employee was exposed in an 
emergency, if the employee has not had an examination under the 
beryllium standard within the last two years. It addresses the concerns 
of DOSH, ACOEM, and the NSSP that employees receive timely medical 
consultations and evaluations. If an employee has not had a previous 
examination under the standard, the examination at 30 days after the 
emergency allows for collection of baseline values on health status, as 
recommended by ACOEM. Baseline information about the employee's current 
health status, such as lung function, will allow for a comparison with 
changes that might occur in the future. Moreover, if the employee is 
confirmed positive by the baseline

[[Page 42619]]

BeLPT and there is a possibility that the employee could be exposed to 
beryllium again in the future, knowledge about the confirmed positive 
finding would allow the employee to consider risks and options related 
to employment (82 FR at 2702).
    OSHA recognizes, as NJH, DOSH, and Materion noted, that 30 days 
following the emergency is not the best timeframe for detecting 
sensitization. However, paragraph (k)(3)(ii)(E) of the beryllium 
standard for general industry already requires that employees who 
received a medical examination because of an emergency exposure 
continue to receive a BeLPT, or an equivalent test, every two years 
following that examination, unless the employee is confirmed positive. 
Therefore, the standard already requires the employers to offer these 
employees a BeLPT for the remainder of their tenure in the workplace 
where they were exposed in an emergency, rather than limiting the 
opportunity to detect sensitization to 30 days following the emergency.
    OSHA also concludes that it is appropriate to require employers to 
offer medical surveillance within one to two years after exposure to 
beryllium in an emergency, if that employee had an examination that 
meets the requirements of the beryllium standard within the last two 
years. These employees could include those who undergo periodic medical 
surveillance at least every two years under paragraph (k)(2)(A) or (D), 
or who may have received a medical examination within the last two 
years because they were experiencing symptoms or were exposed in a 
previous emergency (paragraphs (k)(2)(B) and (C)). These employees 
would have received a recent medical consultation and examination which 
would have allowed them to ask questions. In addition, these employees 
would have received a baseline examination. Like the employees examined 
within 30 days after exposure to beryllium in an emergency, all these 
employees examined within one to two years of the emergency will 
continue to be offered BeLPT testing every two years under paragraph 
(k)(3)(ii)(E) if they have not been confirmed positive and do not or no 
longer meet the criteria for full periodic medical examinations under 
paragraph (k)(2)(ii).
    The requirement for continuing BeLPTs for any employee who has 
received an examination under the beryllium standard, including for an 
emergency exposure, addresses another concern voiced by NJH, which is 
that anyone exposed in an emergency should be provided periodic medical 
surveillance (Document ID 0022, p. 8). If the employee is confirmed 
positive, or if the licensed physician otherwise deems it appropriate, 
the licensed physician is to provide in the written medical opinion to 
the employee a referral to a CBD diagnostic center and a recommendation 
for continued periodic medical surveillance under paragraph (k)(5)(iii) 
and (iv). If the employee authorizes the recommendation for referral to 
be included in the written opinion, the employer must provide an 
examination at a CBD diagnostic center (discussed in more detail below) 
(paragraph (k)(6)(iii)). Once an employee is evaluated at a CBD 
diagnostic center, as described under paragraph (k)(7)(i), the employee 
may choose to have any subsequent medical examinations for which the 
employee is eligible, performed at the CBD diagnostic center at no cost 
to the employee (see final paragraph (k)(7)(vi)). Therefore, the 
standard already allows for periodic BeLPT testing for all employees 
exposed in an emergency, and periodic medical surveillance for any of 
those employees who are confirmed positive.
    Another concern that was raised by DOSH is that delaying the 
medical examination to at least one year following the emergency may 
result in employees not receiving the examination if their employment 
ends within that one-year period (Document ID 0023, p. 3). This concern 
continues to be relevant to employees who are receiving the examination 
for an emergency exposure at one to two years after the exposure in the 
emergency (paragraph (k)(2)(iv)(B)). If employment does end before one 
year after the emergency, paragraphs (k)(2)(iii) and (1)(i)(C) require 
the employer to offer a medical examination at termination of 
employment to any employee exposed to beryllium in an emergency, unless 
the employee received an examination in accordance with the standard 
within the last 6 months. OSHA is concerned that this provision would 
not require employers to offer a medical examination to some employees 
who would receive the emergency examination at one to two years after 
the emergency exposure. For example, if such an employee, already under 
medical surveillance, received a medical examination one month before 
the emergency and then terminated employment two months after the 
emergency, the employer would not be required to offer a medical 
examination to that employee exposed during the emergency under the 
proposed changes, and the employee would not have an opportunity to 
have an medical exam that could detect any adverse effects that might 
have occurred because of the emergency. OSHA agrees with DOSH that 
further revision is necessary to ensure that every employee who is 
exposed in an emergency receives an examination following the 
emergency.
    Accordingly, OSHA is revising paragraph (k)(2)(iii) to require that 
each employee who is exposed in an emergency and has not received an 
examination since the emergency exposure is provided an examination at 
the time employment is terminated. OSHA finds that this change better 
protects employees because it allows health effects that could have 
resulted from the emergency exposure to be more readily detected.
    In making these decisions on the appropriate timing for medical 
examinations for employees exposed to beryllium during an emergency, 
OSHA considered Materion's point that employees experiencing signs or 
symptoms or other beryllium-related health effects after an emergency 
can ask for an examination under paragraph (k)(1)(i)(B) (Document ID 
0038, p. 33). As explained above, all employees who are exposed in an 
emergency will either have previously received training under paragraph 
(m)(4) or will need to be trained within a reasonable time after 
exposure. And these employees should already be knowledgeable or will 
soon become knowledgeable about the health hazards associated with 
airborne exposure to and dermal contact with beryllium, including signs 
and symptoms of CBD, as required by paragraph (m)(4)(ii). Therefore, 
all employees exposed during an emergency should be able to identify 
and report signs or symptoms of CBD or other beryllium-related health 
effects either at the time of the emergency or within a reasonable time 
after it. Materion is, thus, correct in pointing out that if these 
employees did experience such signs or symptoms, they could ask for a 
medical examination. Other employees exposed during an emergency that 
have not had an examination and do not experience these health effects, 
however, would still not have had the opportunity for a timely 
consultation and medical examination with a PLHCP. Consequently, OSHA 
does not find that the signs-or-symptoms trigger is sufficient to 
resolve the concerns raised by the other stakeholders.
    OSHA also proposed one additional change to the paragraph involving 
emergency exposure. As promulgated in the 2017 final rule, paragraph 
(k)(2)(i)(B) required the employer to provide a medical examination 
within 30 days

[[Page 42620]]

after the employer determines that an employee shows signs or symptoms 
of CBD or other beryllium-related health effects or has been exposed to 
beryllium in an emergency. Because OSHA believes that employers 
typically will learn of any emergency resulting in exposure immediately 
or soon after it occurs, OSHA preliminarily determined that it is 
appropriate to measure the time period from the date of exposure. 
Therefore, under proposed paragraph (k)(2)(iv), the time period for 
providing a medical examination begins to run from the date the 
employee is exposed during an emergency, regardless of when the 
employer discovers that the exposure occurred. OSHA requested comments 
on the appropriateness of calculating the time period for a medical 
examination from the occurrence of the emergency rather than from the 
employer's determination of eligibility.
    Materion agreed with OSHA that most employers will learn about the 
emergency resulting in exposure immediately or soon after the 
occurrence, and it supported measuring the time period from the date of 
the exposure, provided that the employer determined that the incident 
can be defined as an emergency under the standard (Document ID 0038, 
pp. 33-34). OSHA did not receive any comments objecting to OSHA's 
proposal to measure the time period from the date of exposure in an 
emergency; therefore, OSHA is retaining the proposed language to 
measure the time period from the date of the exposure in the emergency 
in final paragraphs (k)(2)(iv)(A) and (B).
    Paragraph (k)(2)(iv)(B) does not preclude employers from 
voluntarily providing a medical examination within the first year after 
an emergency. Providing a medical examination sooner would not, 
however, relieve an employer of the duty to provide an exam in the one-
to-two-year window. For those employees who are already eligible for 
periodic medical surveillance, the examination for the emergency 
exposure could be scheduled to coincide with the next periodic 
examination that is within two years of the last periodic medical 
examination and at least one but no more than two years after the 
emergency exposure, satisfying the requirements of both paragraphs 
(k)(2)(ii) and (iv)(B).
    In summary, OSHA is modifying proposed paragraph (k)(2)(iv) to 
customize protections for two general groups of employees who could be 
exposed to beryllium in an emergency. Paragraph (k)(2)(iv)(A) will 
require the employer to offer a medical examination to an employee 
within 30 days after the employee was exposed to beryllium in an 
emergency, if the employee has not had an examination under paragraph 
(k)(1)(i) within the last two years. This requirement improves 
protections for what is likely to be a very small group of employees 
who have not had a medical examination under the beryllium standard 
within the last two years because it allows those employees to have a 
timely consultation and examination. Paragraph (k)(2)(iv)(B) will 
require the employer to offer a medical examination to an employee 
within one to two years after the employee was exposed to beryllium in 
an emergency, if the employee had an examination under paragraph 
(k)(1)(i) of the beryllium standard within the last two years. This 
provision eliminates the requirement to offer an examination within 30 
days to the majority of employees who are likely to be exposed in an 
emergency and have already received a recent medical examination. Thus, 
these employees would have received a baseline examination and a recent 
consultation regarding beryllium. And either group will continue to be 
offered the BeLPT, or an equivalent test, every two years under 
paragraph (k)(3)(ii)(E), even if they do not or no longer meet the 
criteria for full periodic medical examinations under paragraph 
(k)(ii). OSHA is also revising paragraph (k)(2)(iii) to require that 
employers offer a medical examination to any employee who has not 
received an examination since the emergency exposure at the time the 
employee's employment is terminated. Again, OSHA expects this to be a 
very small group of employees that would have had an exam within six 
months of termination but not have had an exam since exposure during an 
emergency. This change ensures that all employees exposed in an 
emergency receive a medical examination for the emergency exposure 
before their employment is terminated.
    In addition, other provisions in the standard ensure that either 
group of employees (i.e., those who receive a medical examination 
within 30 days or one to two years after an emergency) are 
knowledgeable about the signs and symptoms of CBD and that if employees 
are experiencing signs and symptoms, they will be provided a medical 
examination within 30 days of the employer determining that they are 
experiencing such signs or symptoms.
    The second (and final) set of changes that OSHA proposed to the 
standard's medical surveillance requirements is in paragraph (k)(7), 
which contains the requirements for evaluation at a CBD diagnostic 
center. In this final rule, OSHA is amending paragraph (k)(7) in three 
ways. First, OSHA is revising paragraph (k)(7)(i) to require that the 
evaluation must be scheduled within 30 days, and must occur within a 
reasonable time, of the employer receiving one of the types of 
documentation listed in paragraph (k)(7)(i)(A) or (B). Second, OSHA is 
adding a provision, in paragraph (k)(7)(ii), which clarifies that, as 
part of the evaluation at the CBD diagnostic center, the employer must 
ensure that the employee is offered any tests deemed appropriate by the 
examining physician at the CBD diagnostic center, such as pulmonary 
function testing (as outlined by the American Thoracic Society 
criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. The 
new provision also states that if any of the tests deemed appropriate 
by the examining physician are not available at the CBD diagnostic 
center, they may be performed at another location that is mutually 
agreed upon by the employer and the employee. Third, OSHA is making a 
handful of minor, non-substantive numbering and reference edits to 
other provisions in paragraph (k)(7) to account for the addition of new 
paragraph (k)(7)(ii). Specifically, OSHA is renumbering current 
paragraphs (k)(7)(ii), (iii), (iv), and (v) as (k)(7)(iii), (iv), (v), 
and (vi), respectively, and is adding a reference to new paragraph 
(k)(7)(ii) to the newly renumbered paragraph (k)(7)(vi).
    Each of these final revisions differ in some way from the proposed 
amendments based on stakeholder feedback. With regard to the first 
change concerning the timing of the exam, the current standard requires 
employers to provide the examination within 30 days of the employer 
receiving one of the types of documentation listed in paragraph 
(k)(7)(i)(A) or (B). The purpose of the 30-day requirement was to 
ensure that employees receive the examination in a timely manner. As 
OSHA explained in the proposal, however, since the publication of the 
2017 final rule stakeholders have raised concerns that the examination 
and any required tests could not be scheduled and completed within 30 
days (83 FR at 63758).
    To address this concern, OSHA proposed that the employer provide an 
initial consultation with the CBD diagnostic center, which could occur 
via telephone or virtual conferencing methods, rather than the full 
evaluation, within 30 days of the employer receiving one of the types 
of documentation listed in paragraph (k)(7)(i)(A) or (B). OSHA 
explained that providing a consultation before the full examination at 
the CBD diagnostic

[[Page 42621]]

center would demonstrate that the employer made an effort to begin the 
process for a medical examination. OSHA also noted that the proposed 
change would also allow (1) the employee to consult with a physician to 
discuss concerns and ask questions while waiting for a medical 
examination, and (2) the physician to explain the types of tests that 
are recommended based on medical findings about the employee and the 
risks and benefits of undergoing such testing. OSHA requested comments 
on the appropriateness of providing the consultation within 30 days and 
on the sufficiency of a consultation via telephone or virtual 
conference (83 FR at 63758).
    Several stakeholders offered comments on this issue (Document ID 
0021, p. 3; 0022, p. 6; 0029, p. 2; 0038, p. 34). The ATS, NJH, and 
Materion agreed that an examination at the CBD diagnostic center should 
not be required to occur within 30 days of the referral because it may 
take weeks or months before the CBD diagnostic center has an opening 
for an evaluation. In addition, many of the stakeholders noted that 
work responsibilities, personal and family obligations, or the need to 
arrange travel may make it difficult for employees to have an 
evaluation done within that time period.
    Materion also supported the proposed requirement for a telephone or 
virtual consultation within 30 days, claiming that it is a more 
workable solution that does not reduce protections, while allowing 
employees to consider medical options available under the standard and 
offering the employee more flexibility in determining when they can 
undergo testing based on their availability and preference (Document ID 
0038, p. 34). In contrast to Materion, the ATS and NJH opposed the 
proposed requirement for a consultation that can be performed via 
telephone or virtual conferencing within 30 days of the employer 
receiving documentation recommending a referral. NJH commented that a 
video or phone consultation would add cost and logistical difficulty to 
scheduling, and that it is not necessary because the PLHCP who sees the 
employee for screening provides information on the clinical evaluation. 
Furthermore, they commented, there are HIPAA privacy issues of a phone 
or video conference to consider (Document ID 0022, p. 6).
    The ATS agreed with many of the concerns expressed by NJH, 
including concerns regarding logistical challenges, the need for an in-
person clinical evaluation and review of medical tests to provide 
effective care, and redundancy with the PLHCP consultation (Document ID 
0021, p. 3). The ATS and NJH recommended that the standard be revised 
to require that the employer make an appointment for the employee to be 
evaluated at the CBD diagnostic center within 30 days of receiving 
documentation for the referral (Document ID 0021, p. 3; 0022, p. 6). 
DOD also opposed requiring an evaluation by telephone or virtual 
conferencing and stated that an ill worker should be examined 
immediately; it recommended that the employer make the appointment for 
evaluation at a CBD diagnostic center within seven days of receiving 
documentation for a referral (Document ID 0029, p. 2).
    After considering these comments, OSHA is convinced that scheduling 
a phone or virtual consultation with the CBD diagnostic center is an 
unnecessary step that adds logistical complications and costs. Although 
the agency understands Materion's point that the additional 
consultation could provide employees with more time and information to 
make medical decisions, as well as accommodate other scheduling 
logistics, OSHA finds that the scheduling approach suggested by the ATS 
and NJH addresses both the logistical difficulties cited by 
stakeholders with respect to the requirements in the current standard 
and the timing concerns Materion raised. Moreover, OSHA finds that 
employees will have enough information (through trainings under 
paragraph (m) and discussions with the PLHCP) to allow them to decide 
whether to be evaluated at the CBD diagnostic center.\21\ OSHA is 
therefore amending paragraph (k)(7)(i) to require that the employer 
schedule an examination at a CBD diagnostic center within 30 days of 
receiving one of the types of documentation listed in paragraph 
(k)(7)(i)(A) or (B). And to maintain the intent of the 2017 final rule 
and the 2018 NPRM that evaluation at a CBD diagnostic center occurs in 
a timely manner, OSHA is adding that the evaluation must occur within a 
reasonable time. Requiring that the evaluation occur within a 
reasonable time ensures that the evaluation is done as soon as 
practicable based upon availability of openings at the CBD diagnostic 
center and the employee's preferences. This revision better addresses 
OSHA's original intent that the employee be examined within a timely 
period, while providing employees and employers with maximum 
flexibility and convenience.
---------------------------------------------------------------------------

    \21\ Under paragraph (k)(6)(i)(D), the employer is to ensure 
that the PLHCP explains the results of the medical examination to 
the employee, including results of tests conducted and medical 
conditions related to airborne beryllium exposure that require 
further evaluation or treatment.
---------------------------------------------------------------------------

    Although OSHA understands DOD's concerns about making a timely 
appointment, requiring that an appointment be made within a seven-day 
period might not give the employee enough time to consider his or her 
future obligations and possibly have discussions with family members to 
determine the best time period for the examination. OSHA believes that 
a 30-day period to schedule an appointment for an examination is a 
reasonable time that allows the employee to consider his or her 
preferences for an examination date. In addition, a 30-day period 
offers more administrative convenience for employers because it is 
consistent with other triggers in the beryllium standard.
    The second change that OSHA proposed to paragraph (k)(7)(i) relates 
to the contents of the examination at the CBD diagnostic center. As 
discussed in more detail above, the former definition of CBD diagnostic 
center--which stated that the evaluation at the diagnostic center 
``must include'' a pulmonary function test as outlined by American 
Thoracic Society criteria, bronchoalveolar lavage (BAL), and 
transbronchial biopsy--could have been misinterpreted to mean that the 
examining physician was required to perform each of these tests during 
every clinical evaluation at a CBD diagnostic center. That was not 
OSHA's intent. Rather, the agency merely intended to ensure that any 
CBD diagnostic center has the capacity to perform any of these tests, 
which are commonly needed to diagnose CBD. Therefore, OSHA proposed 
revising the definition to clarify that the CBD diagnostic center must 
simply have the ability to perform each of these tests when deemed 
appropriate.
    To account for that proposed change to the definition of CBD 
diagnostic center and to ensure that the employer provides those tests 
if deemed appropriate by the examining physician at the CBD diagnostic 
center, OSHA proposed expanding paragraph (k)(7)(i) to require that the 
employer provide, at no cost to the employee and within a reasonable 
time after consultation with the CBD diagnostic center, any of the 
three tests mentioned above, if deemed appropriate by the examining 
physician at the CBD diagnostic center (83 FR at 63764). OSHA explained 
that the revision would also clarify the agency's original intent that, 
instead of requiring all three tests to be conducted after referral to 
a CBD diagnostic center, the standard would allow the examining

[[Page 42622]]

physician at the CBD diagnostic center the discretion to select one or 
more of those tests as appropriate (83 FR at 63764).
    Several stakeholders offered opinions on these proposed changes. 
For example, Materion agreed with the proposed changes to align 
paragraph (k)(7)(i) with the definition for CBD diagnostic center 
(Document ID 0038, p. 34). However, as discussed above in the Summary 
and Explanation of paragraph (b), Definitions, the ATS argued that 
``not requiring certain diagnostic tests (or an equivalent) could 
reduce the potential to diagnose CBD and determine disease severity'' 
(Document ID 0021, p. 3). The ATS further asserted that ``confirmed 
positive workers should have an assessment of lung function and gas 
exchange (such as a full set of pulmonary function tests with 
spirometry, lung volumes and diffusion capacity for carbon monoxide or 
other similar tests) and also chest imaging'' (Document ID 0021, p. 3). 
NJH and the AOEC expressed similar concerns, commenting that lung 
function and imaging tests should be included as part of an evaluation 
at the CBD diagnostic center (Document ID 0022, p. 3; 0028, p. 2). 
After reviewing these comments and the remainder of the record on this 
issue, OSHA agrees that pulmonary function testing, BAL, and 
transbronchial biopsies are important diagnostic tools, but finds that 
the examining physician at the CBD diagnostic center is in the best 
position to determine which diagnostic tests are appropriate for 
particular workers. The agency believes that the modified definition of 
the term CBD diagnostic center, which requires the centers to have the 
capacity to perform these three tests, will serve to ensure that 
healthcare providers at the centers are aware of the importance of and 
are able to perform pulmonary function testing, BAL, and transbronchial 
biopsies.
    Nevertheless, OSHA understands that the proposed provision could be 
misinterpreted to mean that the employer does not have to make 
available additional tests that the examining physician deems 
appropriate for diagnosing or determining severity of CBD. That was 
never the agency's intent. In fact, OSHA noted the potential for other 
tests, as deemed necessary by the CBD diagnostic center physician, 
several times in the preamble to the 2017 final rule (see, e.g., 82 FR 
at 2709, 2714). Similar to paragraph (k)(3)(ii)(G), which requires the 
employer to ensure that the employee is offered as part of the initial 
or periodic medical examination any test deemed appropriate by the 
PLHCP, OSHA intends for the employer to ensure the employee is offered 
any tests deemed appropriate by the examining physician at the CBD 
diagnostic center, including tests for diagnosing CBD, for determining 
its severity, and for monitoring progression of CBD following 
diagnosis. Allowing the physician at the CBD diagnostic center to order 
additional tests that are deemed appropriate is also consistent with 
most OSHA substance-specific standards, such as respirable crystalline 
silica (29 CFR 1910.1053) and chromium (VI) (29 CFR 1910.1026).
    To clarify the agency's intent that the physician at the CBD 
diagnostic center has discretion to order appropriate tests, and to 
further respond to stakeholder concerns regarding the necessity of 
pulmonary function testing, BAL, and transbronchial biopsies, OSHA is 
adding a new sub-paragraph (k)(7)(ii), which focuses on the content of 
the examination. This new provision requires the employer to ensure 
that, as part of the evaluation, the employee is offered any tests 
deemed appropriate by the examining physician at the CBD diagnostic 
center, such as pulmonary function testing (as outlined by the American 
Thoracic Society criteria), bronchoalveolar lavage (BAL), and 
transbronchial biopsy. OSHA intends for the new provision to make clear 
that the employer must provide additional tests, such as those noted by 
the ATS, NJH, and the AOEC, at no cost to the employee, if those tests 
are deemed necessary by the examining physician. The agency also 
believes that explicitly naming the three examples of tests that may be 
appropriate will further emphasize their importance to examining 
physicians at the CBD diagnostic centers.
    Consistent with OSHA's original intent, those tests are required to 
be offered only if deemed appropriate by the physician at the CBD 
diagnostic center. For example, if lung volume and diffusion tests were 
performed according to the ATS criteria as part of the periodic medical 
examination under paragraph (k)(3) and the physician at the CBD 
diagnostic center found them to be of acceptable quality, those tests 
would not have to be repeated as part of a CBD evaluation. The addition 
of paragraph (k)(7)(ii) clarifies that the employer must, however, 
offer any test that the PLHCP deems appropriate. Consistent with 
previous health standards and the meaning of the identical phrase in 
paragraph (k)(3)(ii)(G), OSHA intends the phrase ``deemed appropriate'' 
to mean that additional tests requested by the physician must be both 
related to beryllium exposure and medically necessary, based on the 
findings of the medical examination (see 82 FR at 2709; 81 FR 16286, 
16826 (March 25, 2016)).
    New paragraph (k)(7)(ii) also addresses the possibility that a test 
that is deemed appropriate by the examining physician at the CBD 
diagnostic center might not be available at that center. Although 
OSHA's intention has been to require any testing to be provided by the 
same CBD diagnostic center unless the employer and employee agree to a 
different CBD diagnostic center (see 83 FR at 63758), there may be 
cases where the CBD diagnostic center does not perform a type of test 
deemed appropriate by the examining physician. In such a case, OSHA 
wants to ensure that the employee can receive the appropriate test. 
Therefore, OSHA is also including in paragraph (k)(7)(ii) a requirement 
that if any of those tests deemed appropriate by the physician are not 
available at the CBD diagnostic center, they may be performed at 
another location that is mutually agreed upon by the employer and the 
employee. This other location does not need to be a CBD diagnostic 
center as long as it is able to perform tests according to requirements 
under paragraph (k). OSHA believes that such circumstances would be 
very rare because CBD diagnostic centers with the ability to perform 
pulmonary function testing (as outlined by the ATS criteria), BAL, and 
transbronchial biopsy are likely to also provide other medical tests 
related to CBD.\22\ As a result, the CBD diagnostic center in the vast 
majority of cases will be able to offer the additional testing deemed 
necessary by the examining physician. Given that this standard requires 
CBD diagnostic centers to be able to perform the three most common 
tests for diagnosing CBD, and CBD diagnostic centers typically would be 
able to offer any additional tests deemed necessary, OSHA expects that 
employees would rarely, if ever, need to travel to a second location.
---------------------------------------------------------------------------

    \22\ Document ID OSHA-H005C-2006-0870-0637 provides information 
from the NJH website, which provides an overview of the types of 
tests performed.
---------------------------------------------------------------------------

    In summary, final paragraph (k)(7)(i) requires that the employer 
provide an evaluation at no cost to the employee at a CBD diagnostic 
center that is mutually agreed to by the employer and the employee. The 
evaluation must be scheduled within 30 days and must occur within a 
reasonable time of the employer receiving one of the types of 
documentation listed in paragraph (k)(7)(i)(A) or (B). Final paragraph 
(k)(7)(ii) requires the employer to ensure that, as part of the 
evaluation, the

[[Page 42623]]

employee is offered any tests deemed appropriate by the examining 
physician at the CBD diagnostic center, such as pulmonary function 
testing (as outlined by the American Thoracic Society criteria), 
bronchoalveolar lavage (BAL), and transbronchial biopsy. Paragraph 
(k)(7)(ii) further provides that any test deemed appropriate by the 
examining physician that is not available at the CBD diagnostic center 
may be performed at another location that is agreed upon by the 
employer and employee. Such tests must be provided at no cost to the 
employee, whether performed at the CBD diagnostic center or at another 
location.
    As noted above, OSHA is also making a handful of minor, non-
substantive numbering and reference edits to other provisions in 
paragraph (k)(7) to account for the addition of new paragraph 
(k)(7)(ii). Specifically, OSHA is renumbering current paragraphs 
(k)(7)(ii)-(v) as (k)(7)(iii), (iv), (v), and (vi), accordingly, and is 
adding a reference to new paragraph (k)(7)(ii) to the newly renumbered 
paragraph (k)(7)(vi). Paragraph (k)(7)(vi) provided that after an 
employee received the initial clinical evaluation at the CBD diagnostic 
center described in paragraph (k)(7)(i), the employee could choose to 
have any subsequent medical evaluations for which the employee is 
eligible under paragraph (k) performed at a CBD diagnostic center 
mutually agreed upon by the employer and employee and that the employer 
must provide such examinations to the employee at no cost. OSHA is 
revising the paragraph to add the reference to new paragraph (k)(7)(ii) 
because the description of the initial clinical evaluation is now split 
between paragraph (k)(7)(i) and (ii), rather than appearing solely in 
paragraph (k)(7)(i). OSHA does not expect that this clarifying change 
will have any substantive effect. Newly renumbered paragraph (k)(7)(vi) 
(previous paragraph (k)(7)(v)), therefore, continues to require that, 
after an employee has received the initial clinical evaluation at a CBD 
diagnostic center, the employee may choose to have any subsequent 
medical examinations for which the employee is eligible under paragraph 
(k) of this standard performed at a CBD diagnostic center mutually 
agreed upon by the employer and the employee, and the employer must 
provide such examinations at no cost to the employee.
    The addition of paragraph (k)(7)(ii) and consequential renumbering 
of current paragraphs (k)(7)(ii)-(v) as (k)(7)(iii), (iv), (v), and 
(vi) also affects two other cross-references in the standard. Paragraph 
(l)(1) of the standard details the eligibility requirements for medical 
removal. Two of the criteria, those in (l)(1)(i)(B) and (l)(1)(ii) 
reference paragraphs (k)(7)(ii) and (k)(7)(iii), respectively. In this 
final rule, OSHA is updating those references to reflect the 
renumbering in paragraph (k)(7). Therefore, final paragraph 
(l)(1)(i)(B) references paragraph (k)(7)(iii) and paragraph (l)(1)(ii) 
references paragraph (k)(7)(iv). These edits, like those noted above in 
paragraph (k)(7)(vi), do not change the substantive meaning of the 
provisions.
    Communication of Hazards.
    Paragraph (m) of the beryllium standard for general industry (29 
CFR 1910.1024(m)) sets forth the employer's obligation to comply with 
the Hazard Communication standard (HCS) (29 CFR 1910.1200) relative to 
beryllium and to take additional steps to warn and train employees 
about the hazards of beryllium. Under the HCS, beryllium manufacturers 
and importers are required to evaluate the hazards of beryllium and 
prepare labels and safety data sheets (SDSs) and provide both documents 
to downstream users. Employers whose employees are exposed to beryllium 
in their workplace must develop a hazard communication program and 
ensure that employees are trained on the hazards of beryllium. These 
employers must also ensure that all containers of beryllium are labeled 
and that employees are provided access to the SDSs. In addition to the 
requirements under the HCS, paragraph (m)(1)(ii) of the beryllium 
standard for general industry specifies certain criteria that must be 
addressed in classifying the hazards of beryllium. Paragraph (m)(2) 
requires employers to provide and display warning signs with specified 
wording at each approach to a regulated area. Paragraph (m)(3) requires 
employers to label each container of clothing, equipment, and materials 
contaminated with beryllium using specified language. Finally, 
paragraph (m)(4) details employers' duties to provide information and 
training to employees.
    In the 2018 NPRM, OSHA proposed three revisions to paragraph (m) of 
the beryllium standard for general industry (83 FR at 63759-60, 63769). 
The first change is related to paragraph (m)(3), which previously 
required employers to label ``each bag and container'' of clothing, 
equipment, and materials contaminated with beryllium. In the 2018 NPRM, 
OSHA proposed to replace the phrase ``each bag and container'' with the 
phrase ``each immediate container,'' to clarify that the employer need 
only label the immediate bag or container of beryllium-contaminated 
items and not larger containers holding the labeled bag or container. 
OSHA proposed this change to be consistent with the HCS, which requires 
only the primary or immediate container to be labeled (see 29 CFR 
1910.1200(c)) (definition of ``Label''). OSHA explained that this 
proposed change would effectuate OSHA's intent, expressed in the 2017 
final rule, that the hazard communication requirements of the beryllium 
standard ``be substantively as consistent as possible'' with the HCS 
(82 FR at 2694, 2724). As such, OSHA preliminarily determined that the 
change would maintain safety and health protections for workers.
    Next, OSHA proposed two revisions to paragraph (m)(4), which 
addresses employee information and training. Paragraph (m)(4)(ii) 
requires the employer to ensure that each employee who is, or can 
reasonably be expected to be, exposed to airborne beryllium can 
demonstrate knowledge and understanding of certain specified topics. 
One of the topics specified in the previous standard was the health 
hazards associated with ``airborne exposure to and contact with 
beryllium,'' including the signs and symptoms of CBD (83 FR at 63759). 
OSHA proposed to modify this language by adding the word ``dermal'' 
immediately prior to ``contact with beryllium.'' OSHA explained that 
the change would clarify OSHA's intent that employers must ensure that 
exposed employees can demonstrate knowledge and understanding of the 
health hazards caused by dermal contact with beryllium.
    OSHA also proposed to modify the language in paragraph 
(m)(4)(ii)(E), which required the employer to ensure that each employee 
who is, or can reasonably be expected to be, exposed to airborne 
beryllium can demonstrate knowledge and understanding of measures 
employees can take to protect themselves from ``airborne exposure to 
and contact with beryllium,'' including personal hygiene practices (83 
FR at 63759). As with the previous revision, OSHA proposed adding the 
word ``dermal'' to ``contact with beryllium'' to clarify OSHA's intent 
that employers must ensure exposed employees can demonstrate knowledge 
and understanding of measures employees can take to protect themselves 
from dermal contact with beryllium.
    Commenters did not object to any of the changes that OSHA proposed 
to paragraph (m). In fact, the only stakeholder that offered any 
comments on these revisions, Materion, generally supported the proposed 
changes,

[[Page 42624]]

commenting that the changes will maintain safety and health protections 
for employees (Document ID 0038, p. 34). OSHA agrees with this 
assessment and finds that the proposed changes will clarify employers' 
requirements for the communication of hazards of beryllium. Therefore, 
OSHA is finalizing the proposed changes to paragraph (m) in this final 
rule.
    Recordkeeping.
    Paragraph (n) of the beryllium standard for general industry 
requires employers to make and maintain air monitoring data, objective 
data, and medical surveillance records, and prepare and maintain 
training records. The 2017 final rule required employers' air 
monitoring data ((n)(1)(ii)(F)), medical surveillance ((n)(3)(ii)(A)), 
and training ((n)(4)(i)) records to include employee Social Security 
Numbers (SSNs). In the 2018 NPRM, OSHA proposed to modify paragraph (n) 
to remove that requirement. This final rule adopts the proposed 
revisions, eliminating the requirement to include employee SSNs in 
these records.
    The issue of whether to include employee SSNs in records under 
OSHA's standards for beryllium dates back to the 2015 beryllium NPRM. 
In that NPRM, OSHA proposed to require inclusion of employee SSNs in 
records related to air monitoring, medical surveillance, and training, 
similar to provisions in previous substance-specific health standards. 
Some stakeholders objected to the proposed requirement based on 
employee privacy and identity theft concerns (82 FR at 2730). OSHA 
recognized the validity of these concerns, but preliminarily concluded 
that due to the agency's past consistent practice of requiring an 
employee's SSN on records, any change to this requirement should be 
comprehensive and apply to all OSHA standards, not just the standards 
for beryllium (82 FR at 2730).
    In 2016, in its Standards Improvement Project-Phase IV (SIP-IV) 
proposed rule (81 FR 68504, 68526-28 (October 4, 2016)), OSHA proposed 
to delete the requirement that employers include employee SSNs in 
records required by the agency's substance-specific standards. The 2017 
final rule for beryllium included the SSN requirements, but, in the 
preamble, OSHA recognized that the SIP-IV rulemaking was ongoing and 
stated that it would revisit its decision to require employers to 
include SSNs in beryllium records in light of the SIP-IV rulemaking, if 
appropriate (82 FR at 2730).
    The SIP-IV rulemaking was still ongoing when OSHA published the 
2018 NPRM. Consistent with the SIP-IV proposal, OSHA proposed to modify 
the beryllium standard for general industry by removing the requirement 
to include SSNs in the recordkeeping provisions in paragraphs 
(n)(1)(ii)(F) (air monitoring data), (n)(3)(ii)(A) (medical 
surveillance), and (n)(4)(i) (training). OSHA noted that these proposed 
revisions would address the privacy concerns raised in response to the 
2015 NPRM, while maintaining safety and health protection for workers.
    Three commenters, Phylmar Regulatory Roundtable, DOD, and Materion, 
expressed general support for the proposed changes to the recordkeeping 
provisions (Document ID 0020, p. 1; 0029, p. 1; 0038, p. 34), and no 
commenters expressed opposition to OSHA's proposal to remove the 
requirement to include each employee's SSN in these three sets of 
records. After reviewing these comments, OSHA is finalizing the 
proposed deletion of the SSN requirements in this final rule. This 
change is also consistent with the agency's decision in the SIP-IV 
rulemaking, which was finalized in the months since the publication of 
the 2018 NPRM (84 FR 21416 (May 14, 2019)). The SIP-IV final rule 
deletes the requirement to include employee SSNs in records employers 
must maintain under the substance-specific standards that existed at 
the time of OSHA's 2016 SIP-IV proposal (see 84 FR at 21439-40).\23\ 
The deletion of the SSN requirements in the beryllium general industry 
standard will, thus, bring this standard into line with the majority of 
OSHA's other substance-specific standards.
---------------------------------------------------------------------------

    \23\ The beryllium standard for general industry, which was not 
published until 2017, was not listed in the SIP-IV NPRM and, 
therefore, the SIP-IV final rule did not affect the 2017 final 
rule's requirement to include employee SSNs in records.
---------------------------------------------------------------------------

    OSHA received one other comment related to SSNs in this rulemaking. 
A private citizen agreed that the proposed changes were ``necessary and 
appropriate,'' but expressed concerns that there is no additional 
requirement to remove SSNs from existing records and that allowing 
employers the option to continue using SSNs will not effectively 
protect employee privacy (Document ID 0017). OSHA understands the 
private citizen's concerns. The SIP-IV NPRM did not propose to require 
employers to remove employee SSNs from existing records or to prohibit 
employers from using employee SSNs in their records. The agency did, 
however, request comment on whether employers should be required to use 
an alternative identification system rather than SSNs, or to remove 
SSNs from existing records (81 FR at 68528).
    As discussed in the preamble to the SIP-IV final rule, the comments 
that OSHA received in response to the SIP-IV NPRM advocated against 
requiring employers to use an alternative type of employee identifier 
or to remove SSNs from existing records (84 FR at 21440). For example, 
the Construction Industry Safety Coalition (CISC) supported OSHA's 
statements in the SIP-IV NPRM that employers would not be required to 
delete employee SSNs from existing records, would not be required to 
use an alternative employee identifier on existing records, and would 
still be permitted to use SSNs if they wish to do so. CISC stated that 
limiting employers' flexibility to come up with an identification 
system that works best for their situations would create an undue 
compliance burden (84 FR at 21440). After considering the comments, 
OSHA decided in the SIP-IV final rule to proceed with removing the SSN 
collection requirements from previously published standards, but not to 
require employers to delete employee SSNs from existing records or to 
use an alternative employee identifier.
    In order to maintain consistency among OSHA recordkeeping 
requirements for substance-specific standards, the agency has decided 
not to require employers to delete employee SSNs from existing records 
relating to beryllium or to use an alternative employee identifier. The 
final rule allows employers the option to still use SSNs or to use some 
other alternative employee identifier system, as explained in the SIP-
IV final rule. This will give employers the flexibility to choose the 
best option for their particular circumstance and will avoid 
unnecessarily increasing employers' compliance burdens.
    Additional Comments.
    The scope of the 2018 proposal was limited to the specific 
revisions and clarifications to the beryllium standard identified in 
the NPRM. The NPRM did not invite comment on all of the agency's 
underlying determinations from the 2017 beryllium final rule. As such, 
OSHA determined that some comments the agency received in response the 
2018 NPRM pertained to subjects outside the scope of the proposal. OSHA 
briefly addresses these comments below.
    Two commenters addressed issues related to OSHA's significant risk 
finding from the 2017 final rule. One commenter focused on the risk of 
health effects related to beryllium exposure in the aluminum smelting 
industry and the methodologies underlying OSHA's risk

[[Page 42625]]

assessment of occupational exposure to beryllium (Document ID 0026, 
Attachment 2, pp. 9-16). Another took issue with OSHA's risk 
determination pertaining to dermal contact with beryllium and argued 
that the current standard did not distinguish between the chemical 
forms of beryllium and its varying risk of injury from dermal contact 
(Document ID 0038, pp. 13-15). OSHA addressed these concerns about risk 
in the 2017 final rule and determined that the beryllium standard 
addresses a significant risk (see 82 FR at 2545-52). The changes and 
clarifications proposed by the 2018 NPRM do not affect that 
determination.
    Another commenter took issue with the revised PEL for beryllium set 
in the 2017 final rule, suggesting that a lower PEL was needed to 
protect workers from CBD and lung cancer (Document ID 0028, p. 1). 
Although OSHA determined in the 2017 final rule that there remains a 
significant risk of material impairment of health at the 0.2 [micro]g/
m\3\ PEL and the 2.0 ug/m\3\ STEL, the agency further determined that 
it could not demonstrate that a lower PEL would be technologically 
feasible (82 FR at 2552). Again, OSHA did not propose to revisit this 
finding in this rulemaking.

List of Subjects for 29 CFR Part 1910

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

Authority

    Loren Sweatt, Principal Deputy Assistant Secretary of Labor for 
Occupational Safety and Health, U.S. Department of Labor, directed the 
preparation of this document. The agency issues the sections under the 
following authorities: 29 U.S.C. 653, 655, 657; Secretary of Labor's 
Order 1-2012 (77 FR 3912); 29 CFR part 1911; and 5 U.S.C. 553, as 
applicable.

    Signed at Washington, DC, on May 13, 2020.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety 
and Health.

Amendments to Standards

    For the reasons set forth in the preamble, chapter XVII of title 
29, part 1910 is amended to read as follows:

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

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

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

    All of subpart Z issued under 29 U.S.C. 655(b), except those 
substances that have exposure limits listed in Tables Z-1, Z-2, and 
Z-3 of Sec.  1910.1000. The latter were issued under 29 U.S.C. 
655(a).
    Section 1910.1000, Tables Z-1, Z-2 and Z-3 also issued under 5 
U.S.C. 553, but not under 29 CFR part 1911 except for the arsenic 
(organic compounds), benzene, cotton dust, and chromium (VI) 
listings.
    Section 1910.1001 also issued under 40 U.S.C. 3704 and 5 U.S.C. 
553.
    Section 1910.1002 also issued under 5 U.S.C. 553, but not under 
29 U.S.C. 655 or 29 CFR part 1911.
    Sections 1910.1018, 1910.1029, and 1910.1200 also issued under 
29 U.S.C. 653.
    Section 1910.1030 also issued under Public Law 106-430, 114 
Stat. 1901.
    Section 1910.1201 also issued under 49 U.S.C. 1801-1819 and 5 
U.S.C. 553.


0
2. Amend Sec.  1910.1024 by:
0
A. Revising the definitions for ``Beryllium sensitization,'' 
``Beryllium work area,'' ``CBD diagnostic center,'' ``Chronic beryllium 
disease (CBD),'' and ``Dermal contact with beryllium''.
0
B. Revise paragraphs (f)(1)(i)(D), (f)(ii)(B), (h)(2)(i), (h)(3)(iii), 
(i)(1) introductory text, (i)(2), (i)(4)(ii), (j)(3), (k)(2)(i)(B), 
(k)(2)(iii) and (iv), (k)(7)(i) introductory text, (k)(7)(ii) through 
(vi), (l)(1)(i)(B), (l)(1)(ii), (m)(3), (m)(4)(ii)(A), (m)(4)(ii)(E), 
(n)(1)(ii)(F), (n)(3)(ii)(A), (n)(4)(i), and Appendix A.
    The revisions read as follows:


Sec.  1910.1024  Beryllium.

* * * * *
    (b) * * *
    Beryllium sensitization means a response in the immune system of a 
specific individual who has been exposed to beryllium. There are no 
associated physical or clinical symptoms and no illness or disability 
with beryllium sensitization alone, but the response that occurs 
through beryllium sensitization can enable the immune system to 
recognize and react to beryllium. While not every beryllium-sensitized 
person will develop chronic beryllium disease (CBD), beryllium 
sensitization is essential for development of CBD.
    Beryllium work area means any work area where materials that 
contain at least 0.1 percent beryllium by weight are processed either:
    (1) During any of the operations listed in Appendix A of this 
standard; or
    (2) Where employees are, or can reasonably be expected to be, 
exposed to airborne beryllium at or above the action level.
    CBD diagnostic center means a medical diagnostic center that has a 
pulmonologist or pulmonary specialist on staff and on-site facilities 
to perform a clinical evaluation for the presence of chronic beryllium 
disease (CBD). The CBD diagnostic center must have the capacity to 
perform pulmonary function testing (as outlined by the American 
Thoracic Society criteria), bronchoalveolar lavage (BAL), and 
transbronchial biopsy. The CBD diagnostic center must also have the 
capacity to transfer BAL samples to a laboratory for appropriate 
diagnostic testing within 24 hours. The pulmonologist or pulmonary 
specialist must be able to interpret the biopsy pathology and the BAL 
diagnostic test results.
    Chronic beryllium disease (CBD) means a chronic granulomatous lung 
disease caused by inhalation of airborne beryllium by an individual who 
is beryllium sensitized.
    Confirmed positive means the person tested has had two abnormal 
BeLPT test results, an abnormal and a borderline test result, or three 
borderline test results, obtained from tests conducted within a three-
year period. It also means the result of a more reliable and accurate 
test indicating a person has been identified as having beryllium 
sensitization.
* * * * *
    Dermal contact with beryllium means skin exposure to:
    (1) Soluble beryllium compounds containing beryllium in 
concentrations greater than or equal to 0.1 percent by weight;
    (2) Solutions containing beryllium in concentrations greater than 
or equal to 0.1 percent by weight; or
    (3) Visible dust, fumes, or mists containing beryllium in 
concentrations greater than or equal to 0.1 percent by weight. The 
handling of beryllium materials in non-particulate solid form that are 
free from visible dust containing beryllium in concentrations greater 
than or equal to 0.1 percent by weight is not considered dermal contact 
under the standard.
* * * * *
    (f) * * *
    (1) * * *
    (i) * * *
    (D) Procedures for minimizing cross-contamination, including the 
transfer of beryllium between surfaces, equipment, clothing, materials, 
and articles within beryllium work areas;
* * * * *
    (ii) * * *
    (B) The employer is notified that an employee is eligible for 
medical removal in accordance with paragraph (l)(1) of this standard, 
referred for evaluation at

[[Page 42626]]

a CBD diagnostic center, or shows signs or symptoms associated with 
exposure to beryllium; or
* * * * *
    (h) * * *
    (2) * * *
    (i) The employer must ensure that each employee removes all 
beryllium-contaminated personal protective clothing and equipment at 
the end of the work shift, at the completion of all tasks involving 
beryllium, or when personal protective clothing or equipment becomes 
visibly contaminated with beryllium, whichever comes first.
* * * * *
    (3) * * *
    (iii) The employer must inform in writing the persons or the 
business entities who launder, clean, or repair the personal protective 
clothing or equipment required by this standard of the potentially 
harmful effects of exposure to beryllium and that the personal 
protective clothing and equipment must be handled in accordance with 
this standard.
* * * * *
    (i) * * *
    (1) General. For each employee working in a beryllium work area or 
who can reasonably be expected to have dermal contact with beryllium, 
the employer must:
* * * * *
    (2) Change rooms. In addition to the requirements of paragraph 
(i)(1)(i) of this standard, the employer must provide employees who are 
required to use personal protective clothing or equipment under 
paragraph (h)(1)(ii) of this standard with a designated change room in 
accordance with this standard and the Sanitation standard (Sec.  
1910.141) where employees are required to remove their personal 
clothing.
* * * * *
    (4) * * *
    (ii) No employees enter any eating or drinking area with beryllium-
contaminated personal protective clothing or equipment unless, prior to 
entry, it is cleaned, as necessary, to be as free as practicable of 
beryllium by methods that do not disperse beryllium into the air or 
onto an employee's body; and
* * * * *
    (j) * * *
    (3) Disposal, recycling, and reuse. (i) Except for intra-plant 
transfers, when the employer transfers materials that contain at least 
0.1 percent beryllium by weight or are contaminated with beryllium for 
disposal, recycling, or reuse, the employer must label the materials in 
accordance with paragraph (m)(3) of this standard;
    (ii) Except for intra-plant transfers, materials designated for 
disposal that contain at least 0.1 percent beryllium by weight or are 
contaminated with beryllium must be cleaned to be as free as 
practicable of beryllium or placed in enclosures that prevent the 
release of beryllium-containing particulate or solutions under normal 
conditions of use, storage, or transport, such as bags or containers; 
and
    (iii) Except for intra-plant transfers, materials designated for 
recycling or reuse that contain at least 0.1 percent beryllium by 
weight or are contaminated with beryllium must be cleaned to be as free 
as practicable of beryllium or placed in enclosures that prevent the 
release of beryllium-containing particulate or solutions under normal 
conditions of use, storage, or transport, such as bags or containers.
* * * * *
    (k) * * *
    (2) * * *
    (i) * * *
    (B) An employee meets the criteria of paragraph (k)(1)(i)(B) of 
this standard.
* * * * *
    (iii) At the termination of employment for each employee who meets 
any of the criteria of paragraph (k)(1)(i) of this standard at the time 
the employee's employment terminates, unless an examination has been 
provided in accordance with this standard during the six months prior 
to the date of termination. Each employee who meets the criteria of 
paragraph (k)(1)(i)(C) of this standard and who has not received an 
examination since exposure to beryllium during the emergency must be 
provided an examination at the time the employee's employment 
terminates.
    (iv) For an employee who meets the criteria of paragraph 
(k)(1)(i)(C) of this standard:
    (A) If that employee has not received a medical examination within 
the previous two years pursuant to paragraph (k)(1)(i) of this 
standard, then within 30 days after the employee meets the criteria of 
paragraph (k)(1)(i)(C) of this standard; or
    (B) If that employee has received a medical examination within the 
previous two years pursuant to paragraph (k)(1)(i) of this standard, 
then at least one year but no more than two years after the employee 
meets the criteria of paragraph (k)(1)(i)(C) of this standard.
* * * * *
    (7) * * *
    (i) The employer must provide an evaluation at no cost to the 
employee at a CBD diagnostic center that is mutually agreed upon by the 
employer and the employee. The evaluation at the CBD diagnostic center 
must be scheduled within 30 days, and must occur within a reasonable 
time, of:
* * * * *
    (ii) The employer must ensure that, as part of the evaluation, the 
employee is offered any tests deemed appropriate by the examining 
physician at the CBD diagnostic center, such as pulmonary function 
testing (as outlined by the American Thoracic Society criteria), 
bronchoalveolar lavage (BAL), and transbronchial biopsy. If any of the 
tests deemed appropriate by the examining physician are not available 
at the CBD diagnostic center, they may be performed at another location 
that is mutually agreed upon by the employer and the employee.
    (iii) The employer must ensure that the employee receives a written 
medical report from the CBD diagnostic center that contains all the 
information required in paragraph (k)(5)(i), (ii), (iv), and (v) of 
this standard and that the PLHCP explains the results of the 
examination to the employee within 30 days of the examination.
    (iv) The employer must obtain a written medical opinion from the 
CBD diagnostic center within 30 days of the medical examination. The 
written medical opinion must contain only the information in paragraph 
(k)(6)(i), as applicable, unless the employee provides written 
authorization to release additional information. If the employee 
provides written authorization, the written opinion must also contain 
the information from paragraphs (k)(6)(ii), (iv), and (v), if 
applicable.
    (v) The employer must ensure that each employee receives a copy of 
the written medical opinion from the CBD diagnostic center described in 
paragraph (k)(7) of this standard within 30 days of any medical 
examination performed for that employee.
    (vi) After an employee has received the initial clinical evaluation 
at a CBD diagnostic center described in paragraphs (k)(7)(i) and (ii) 
of this standard, the employee may choose to have any subsequent 
medical examinations for which the employee is eligible under paragraph 
(k) of this standard performed at a CBD diagnostic center mutually 
agreed upon by the employer and the employee, and the employer must 
provide such examinations at no cost to the employee.
* * * * *
    (l) * * *
    (1) * * *

[[Page 42627]]

    (i) * * *
    (B) A written medical report recommending removal from airborne 
exposure to beryllium in accordance with paragraph (k)(5)(v) or 
(k)(7)(iii) of this standard; or
    (ii) The employer receives a written medical opinion recommending 
removal from airborne exposure to beryllium in accordance with 
paragraph (k)(6)(v) or (k)(7)(iv) of this standard.
* * * * *
    (m) * * *
    (3) Warning labels. Consistent with the HCS (Sec.  1910.1200), the 
employer must label each immediate container of clothing, equipment, 
and materials contaminated with beryllium, and must, at a minimum, 
include the following on the label:

DANGER
CONTAINS BERYLLIUM
MAY CAUSE CANCER
CAUSES DAMAGE TO LUNGS
AVOID CREATING DUST
DO NOT GET ON SKIN

    (4) * * *
    (ii) * * *
    (A) The health hazards associated with airborne exposure to and 
dermal contact with beryllium, including the signs and symptoms of CBD;
* * * * *
    (E) Measures employees can take to protect themselves from airborne 
exposure to and dermal contact with beryllium, including personal 
hygiene practices;
* * * * *
    (n) * * *
    (1) * * *
    (ii) * * *
    (F) The name and job classification of each employee represented by 
the monitoring, indicating which employees were actually monitored.
* * * * *
    (3) * * *
    (ii) * * *
    (A) Name and job classification;
* * * * *
    (4) * * *
    (i) At the completion of any training required by this standard, 
the employer must prepare a record that indicates the name and job 
classification of each employee trained, the date the training was 
completed, and the topic of the training.
* * * * *
    (p) Appendix. Table A.1 in this appendix sets forth the operations 
that, where performed under the circumstances described in the column 
heading above the particular operations, trigger the requirement for a 
beryllium work area.

Appendix A to Sec.  1910.1024--Operations for Establishing Beryllium 
Work Areas

    Paragraph (b) of this standard defines a beryllium work area as 
any work area where materials that contain at least 0.1 percent 
beryllium by weight are processed (1) during any of the operations 
listed in Appendix A of this standard, or (2) where employees are, 
or can reasonably be expected to be, exposed to airborne beryllium 
at or above the action level. Table A.1 in this appendix sets forth 
the operations that, where performed under the circumstances 
described in the column heading above the particular operations, 
trigger the requirement for a beryllium work area.

    Table A.1--Operations for Establishing Beryllium Work Areas Where
Processing Materials Containing at Least 0.1 Percent Beryllium by Weight
------------------------------------------------------------------------
                          Beryllium composite
 Beryllium metal alloy  operations  (generally
operations  (generally     >10% beryllium by         Beryllium oxide
   <10% beryllium by     weight) and beryllium         operations
        weight)            metal operations
------------------------------------------------------------------------
Abrasive Blasting.      Abrasive Blasting.      Abrasive Blasting.
Abrasive Processing.    Abrasive Processing.    Abrasive Processing.
Abrasive Sawing.        Abrasive Sawing.        Abrasive Sawing.
Annealing.              Annealing.              Boring.
Bright Cleaning.        Atomizing.              Brazing (>1,100 [deg]C).
Brushing.               Attritioning.           Broaching with green
                                                 ceramic.
Buffing.                Blanking.               Brushing.
Burnishing.             Bonding.                Buffing.
Casting.                Boring.                 Centerless grinding.
Centerless Grinding.    Breaking.               Chemical Cleaning.
Chemical Cleaning.      Bright Cleaning.        Chemical Etching.
Chemical Etching.       Broaching.              CNC Machining.
Chemical Milling.       Brushing.               Cold Isostatic Pressing
                                                 (CIP).
Dross Handling.         Buffing.                Crushing.
Deburring (grinding).   Burnishing.             Cutting.
Electrical Chemical     Casting.                Deburring (grinding).
 Machining (ECM).
Electrical Discharge    Centerless Grinding.    Deburring (non-
 Machining (EDM).                                grinding).
Extrusion.              Chemical Cleaning.      Destructive Testing.
Forging.                Chemical Etching        Dicing.
Grinding.               Chemical Milling.       Drilling.
Heat Treating (in       CNC Machining           Dry/wet Tumbling.
 air).
High Speed Machining    Cold Isostatic          Extrusion.
 (>10,000 rpm).          Pressing.
Hot Rolling.            Cold Pilger.            Filing by Hand.
Lapping.                Crushing.               Firing of Green Ceramic.
Laser Cutting.          Cutting.                Firing of Refractory
                                                 Metallization (>1,100
                                                 [deg]C).
Laser Machining.        Deburring.              Grinding.
Laser Scribing.         Dicing.                 Honing.
Laser Marking.          Drawing.                Hot Isostatic Pressing
                                                 (HIP).
Melting.                Drilling.               Lapping.
Photo-Etching.          Dross Handling.         Laser Cutting.
Pickling.               Electrical Chemical     Laser Machining.
                         Machining (ECM).
Point and Chamfer.      Electrical Discharge    Laser Scribing.
                         Machining (EDM).
Polishing.              Extrusion.              Laser Marking.
Torch Cutting (i.e.,    Filing by Hand.         Machining.
 oxy-acetylene).
Tumbling.               Forging.                Milling.
Water-jet Cutting.      Grinding.               Piercing.
Welding.                Heading.                Mixing.

[[Page 42628]]

 
Sanding.                Heat Treating.          Plasma Spray.
Slab Milling.           Honing.                 Polishing.
                        Hot Isostatic Pressing  Powder Handling.
                         (HIP).
                        Lapping.                Powder Pressing.
                        Laser Cutting.          Reaming.
                        Laser Machining.        Sanding.
                        Laser Scribing.         Sectioning.
                        Laser Marking.          Shearing.
                        Machining.              Sintering of Green
                                                 Ceramic.
                        Melting.                Sintering of Refractory
                                                 Metallization (>1,100
                                                 [deg]C).
                        Milling.                Snapping.
                        Mixing.                 Spray Drying.
                        Photo-Etching.          Tape Casting.
                        Pickling.               Turning.
                        Piercing.               Water Jet Cutting.
                        Pilger.
                        Plasma Spray.
                        Point and Chamfer.
                        Polishing.
                        Powder Handling.
                        Powder Pressing.
                        Pressing.
                        Reaming.
                        Roll Bonding.
                        Rolling.
                        Sanding.
                        Sawing (tooth blade).
                        Shearing.
                        Sizing.
                        Skiving.
                        Slitting.
                        Snapping.
                        Sputtering.
                        Stamping.
                        Spray Drying.
                        Tapping.
                        Tensile Testing.
                        Torch Cutting (i.e.,
                         oxy acetylene).
                        Trepanning.
                        Tumbling
                        Turning.
                        Vapor Deposition.
                        Water-Jet Cutting.
                        Welding.
------------------------------------------------------------------------

[FR Doc. 2020-10678 Filed 7-13-20; 8:45 am]
BILLING CODE P

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