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

  
  Vol. 83
  
  Friday,
  
  No. 106
  
  June 1, 2018
  
  Part III
  
  
  
  
  
  Department of Labor
  
  
  
  
  
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  Occupational Safety and Health Administration
  
  
  
  
  
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  29 CFR Part 1910
  
  
  
  
  
  Limited Extension of Select Compliance Dates for Occupational Exposure 
  to Beryllium in General Industry; Proposed Rules
  
  Federal Register / Vol. 83 , No. 106 / Friday, June 1, 2018 / 
  Proposed Rules
  

  
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  DEPARTMENT OF LABOR
  
  Occupational Safety and Health Administration
  
  29 CFR Part 1910
  
  [Docket ID-OSHA-H005C-2006-0870]
  RIN 1218-AB76
  
  
  Limited Extension of Select Compliance Dates for Occupational 
  Exposure to Beryllium in General Industry
  
  AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
  
  ACTION: Proposed rule.
  
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  SUMMARY: OSHA is proposing a nine-month extension of the compliance 
  date for certain ancillary requirements of the general industry 
  beryllium standard (from March 12, 2018 to December 12, 2018). This 
  proposal would not extend the compliance date for the permissible 
  exposure limits (PELs), exposure assessment, respiratory protection, 
  medical surveillance, or medical removal protection provisions, or for 
  any provisions for which the standard already establishes compliance 
  dates in 2019 and 2020. OSHA has preliminarily determined that this 
  proposal will maintain essential safety and health protections for 
  workers while OSHA prepares an NPRM to clarify specific provisions of 
  the beryllium standard that would both maintain the standard's worker 
  safety and health protections and address employers' compliance 
  burdens.
  
  DATES: Submit comments to this proposed rule, hearing requests, and 
  other information by July 2, 2018. All submissions must bear a postmark 
  or provide other evidence of the submission date.
  
  ADDRESSES: Submit comments, hearing requests, and other material, 
  identified by Docket No. OSHA-H005C-2006-0870, using any of the 
  following methods:
      Electronically: Submit comments and attachments, as well as hearing 
  requests and other information, electronically at https://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow 
  the instructions online for submitting comments. Note that this docket 
  may include several different Federal Register notices involving active 
  rulemakings, so it is extremely important to select the correct notice 
  or its ID number when submitting comments for this rulemaking. After 
  accessing ``all documents and comments'' in the docket (OSHA-H005C-
  2006-0870), check the ``proposed rule'' box in the column headed 
  ``Document Type,'' find the document posted on the date of publication 
  of this document, and click the ``Submit a Comment'' link. Additional 
  instructions for submitting comments are available from the https://www.regulations.gov homepage.
      Facsimile: OSHA allows facsimile transmission of comments that are 
  10 pages or fewer in length (including attachments). Fax these 
  documents to the OSHA Docket Office at (202) 693-1648. OSHA does not 
  require hard copies of these documents. Instead of transmitting 
  facsimile copies of attachments that supplement these documents (e.g., 
  studies, journal articles), commenters must submit these attachments to 
  the OSHA Docket Office, Docket No. OSHA-H005C-2006-0870, Room N-3653, 
  Occupational Safety and Health Administration, U.S. Department of 
  Labor, 200 Constitution Avenue NW, Washington, DC 20210. These 
  attachments must clearly identify the sender's name, the date, the 
  subject, and the docket number (OSHA-H005C-2006-0870) so that the 
  Docket Office can attach them to the appropriate document.
      Regular mail, express delivery, hand delivery, and messenger 
  (courier) service: Submit comments and any additional material to the 
  OSHA Docket Office, Docket No. OSHA-H005C-2006-0870, Room N-3653, 
  Occupational Safety and Health Administration, U.S. Department of 
  Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone: 
  (202) 693-2350 (TTY (877) 889-5627). Contact the OSHA Docket Office for 
  information about security procedures concerning delivery of materials 
  by express delivery, hand delivery, and messenger service. The Docket 
  Office will accept deliveries (express delivery, hand delivery, 
  messenger service) during the Docket Office's normal business hours, 
  10:00 a.m. to 3:00 p.m., ET.
      Instructions: All submissions must include the Agency's name, the 
  title of the rulemaking (Limited Extension of Select Compliance Dates 
  for Occupational Exposure to Beryllium in General Industry), and the 
  docket number (OSHA-H005C-2006-0870). OSHA will place comments and 
  other material, including any personal information, in the public 
  docket without revision, and the comments and other material will be 
  available online at https://www.regulations.gov. Therefore, OSHA 
  cautions commenters about submitting statements they do not want made 
  available to the public, or submitting comments that contain personal 
  information (either about themselves or others), such as Social 
  Security Numbers, birth dates, and medical data.
      In this preamble, OSHA cites to documents in Docket No. OSHA-H005C-
  2006-0870, the docket for this rulemaking. To simplify these document 
  cites, OSHA uses ``Document ID'' followed by the last four digits of 
  the full docket identification number. For example, if a document's 
  full docket identification number is ID-OSHA-H005C-2006-0870-1234, the 
  citation used in this preamble would be Document ID 1234. The docket is 
  available at https://www.regulations.gov, the Federal eRulemaking 
  Portal.
      Docket: To read or download comments or other material in the 
  docket, go to https://www.regulations.gov or to the OSHA Docket Office 
  at the above address. The electronic docket for this proposed rule 
  established at https://www.regulations.gov contains most of the 
  documents in the docket. However, some information (e.g., copyrighted 
  material) is not available publicly to read or download through this 
  website. All submissions, including copyrighted material, are available 
  for inspection at the OSHA Docket Office. Contact the OSHA Docket 
  Office for assistance in locating docket submissions.
  
  FOR FURTHER INFORMATION CONTACT:
      Press inquiries: Mr. Frank Meilinger, OSHA Office of 
  Communications; telephone: (202) 693-1999; email: 
  meilinger.francis2@dol.gov.
      General information and technical inquiries: William Perry or 
  Maureen Ruskin, Directorate of Standards and Guidance; telephone (202) 
  693-1950; email: perry.bill@dol.gov.
      Copies of this Federal Register document and news releases: 
  Electronic copies of these documents are available at OSHA's web page 
  at https://www.osha.gov.
  
  SUPPLEMENTARY INFORMATION:
  
  I. Explanation of Regulatory Action
  
  A. Introduction
  
      OSHA is publishing this Notice of Proposed Rulemaking (NPRM) to 
  propose a nine-month extension of the compliance date for certain 
  requirements of the general industry beryllium standard (29 CFR 
  1910.1024), which was promulgated on January 9, 2017 (82 FR 2470). The 
  standard provides that the compliance date for the affected 
  requirements is March 12, 2018, but on March 2, 2018, OSHA issued a 
  memorandum stating that no provisions of the standard would be enforced 
  until May 11, 2018. Then, on

  
  May 9, 2018, OSHA issued an enforcement memorandum stating that the 
  ancillary requirements that are affected by the planned NPRM will not 
  be enforced until June 25, 2018. Neither memorandum was published in 
  the Federal Register.
      This proposed action would revise the standard to extend the 
  compliance date for the affected provisions until December 12, 2018. 
  OSHA is proposing to extend the compliance date for select ancillary 
  requirements of the general industry standard, but this proposal would 
  not extend the compliance date for PELs, exposure assessment, 
  respiratory protection, medical surveillance, or medical removal 
  protection provisions, or for any provisions for which the standard 
  already establishes compliance dates in 2019 and 2020. It also would 
  not affect the applicability of the scope and application paragraph or 
  the definitions, except to allow employers to comply with the 
  definitions of ``CBD diagnostic center,'' ``chronic beryllium 
  disease,'' and ``confirmed positive'' that will be proposed in the 
  later substantive rulemaking NPRM (Document ID 2156).\1\ As explained 
  in more detail in the following sections, OSHA believes the proposed 
  action is necessary to provide sufficient time for preparation and 
  publication of a planned NPRM that will affect the provisions of the 
  rule covered by this proposed extension.
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      \1\ CBD is the acronym for chronic beryllium disease.
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      As described in Section I.D, Explanation of Proposed Action and 
  Request for Comment, OSHA is planning to propose revisions to the 
  beryllium standard in accordance with a settlement agreement entered 
  into with stakeholders on April 24, 2018 (Document ID 2156). The 
  upcoming rulemaking will affect select ancillary provisions in the 
  standard. OSHA is concerned that beginning enforcement of those 
  provisions before publication of the substantive proposal may result in 
  employer confusion or improper implementation of the relevant 
  provisions of the rule.
  
  B. Summary of Economic Impact
  
      This proposed rule is not economically significant. OSHA is 
  revising 29 CFR 1910.1024(o)(2) to extend the deadline for compliance 
  with certain provisions of the beryllium rule for nine months. This 
  proposed rule is expected to be an Executive Order (E.O.) 13771 
  deregulatory action. Details on OSHA's cost/cost savings estimates for 
  this proposed rule can be found in the rule's preliminary economic 
  analysis in the ``Agency Determinations'' section of this preamble. 
  OSHA has estimated that, at a 3 percent discount rate over 10 years, 
  there are net annual cost savings of $0.76 million per year for this 
  proposed rule; at a discount rate of 7 percent there are net annual 
  cost savings of $1.73 million per year. When the Department uses a 
  perpetual time horizon, the annualized cost savings of the proposed 
  rule is $1.65 million with 7 percent discounting.
  
  C. Regulatory Background
  
      OSHA published an NPRM for occupational exposure to beryllium in 
  the Federal Register on August 7, 2015 (80 FR 47566). In the NPRM, the 
  Agency made a preliminary determination that employees exposed to 
  beryllium and beryllium compounds at the previous PEL faced a 
  significant risk to their health and that promulgating the proposed 
  standard would substantially reduce that risk. The NPRM invited 
  interested stakeholders to submit comments on a variety of issues.
      OSHA held a public hearing in Washington, DC, on March 21 and 22, 
  2016. The Agency heard testimony from several organizations, including 
  public health groups, industry representatives, and labor unions. 
  Following the hearing, participants had an opportunity to submit 
  additional evidence and data, as well as final briefs, arguments, and 
  summations (Document ID 1756, Tr. 326).
      On January 9, 2017, after considering the entire record, OSHA 
  issued a final rule with three separate standards for general industry, 
  shipyards, and construction, in order to tailor requirements to the 
  circumstances found in these sectors. See 82 FR 2470 (January 9, 2017). 
  The final beryllium standards established new PELs of 0.2 [mu]g/m\3\ as 
  an 8-hour time-weighted average (TWA) and 2.0 [mu]g/m\3\ as a short-
  term exposure limit (STEL) determined over a sampling period of 15 
  minutes. The standards also established other provisions to protect 
  employees, such as requirements for exposure assessment, methods for 
  controlling exposure, respiratory protection, personal protective 
  clothing and equipment, housekeeping, medical surveillance, medical 
  removal, hazard communication, and recordkeeping. The general industry 
  standard established a compliance date (when obligations of the 
  standard commence and become enforceable) of March 12, 2018, for all 
  obligations except change rooms and showers required by paragraph (i) 
  (compliance date of March 11, 2019) and engineering controls required 
  by paragraph (f) (compliance date of March 10, 2020). See 29 CFR 
  1910.1024(o)(2).
      Following promulgation of the final standard, representatives of 
  general industry employers, including Materion Corporation, along with 
  representatives of the coal-fired power industry and the aluminum 
  production industry, challenged the rule in federal court and 
  approached OSHA with questions and concerns about some of the 
  provisions in the final rule.
      In response to the stakeholder feedback, and to resolve the pending 
  litigation, OSHA is planning to propose revisions to certain provisions 
  in the general industry standard and rely on its de minimis policy 
  while the rulemaking is pending so that employers may comply with the 
  proposed provisions without risk of a citation.\2\ The revisions OSHA 
  plans to propose are generally designed to clarify the standard in 
  response to stakeholder questions or to simplify compliance, while in 
  all cases maintaining a high degree of protection from the adverse 
  health effects of beryllium exposure (Document ID 2156). For example, 
  the proposed changes include modifying certain definitions to clarify 
  the meaning of the terms, including a list of operations that trigger 
  the requirement for beryllium work areas so that employers understand 
  when they must set up a beryllium work area, and modifying the disposal 
  and recycling provisions to clarify that items designated for disposal 
  must be in containers that prevent the release of beryllium under 
  ordinary conditions rather than sealed, impermeable containers. The 
  proposed compliance date extension will give OSHA time to prepare and 
  publish the planned NPRM to amend the standard before employers must 
  comply with the affected provisions of the rule so that, until any such 
  changes are finalized, employers may comply with the proposed 
  provisions without risk of a citation.
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      \2\ The OSH Act allows the Secretary of Labor to prescribe 
  procedures to issue notices instead of citations for ``de minimis 
  violations'' that have no direct or immediate relationship to safety 
  or health. 29 U.S.C. 658(a). The Secretary's de minimis policy is 
  set forth in its Field Operations Manual (FOM), available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-160.pdf. Under the de 
  minimis policy, compliance ``with a proposed OSHA standard or 
  amendment or a consensus standard rather than with the standard in 
  effect at the time of the inspection and the employer's action 
  clearly provides equal or greater employee protection'' is a de 
  minimis condition. De minimis conditions result in no citation or 
  penalties. See 29 CFR 1903.15 (``Penalties shall not be proposed for 
  de minimis violations which have no direct or immediate relationship 
  to safety or health.''); https://www.osha.gov/Publications/osha3000.pdf.
  
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  D. Explanation of Proposed Action and Request for Comment
  
      OSHA is proposing to revise the ``Dates'' provision of the 
  beryllium standard (at 29 CFR 1910.1024(o)(2)) to extend the deadline 
  for compliance with most of the ancillary requirements of the standard 
  from March 12, 2018, to December 12, 2018. As previously discussed, 
  this proposed action would provide time for preparation and publication 
  of a planned NPRM that will impact the provisions covered by this 
  extension so that employers may comply with the proposed provisions 
  without risk of a citation (Document ID 2156).
      OSHA will be proposing modifications to ancillary provisions of the 
  beryllium standard in response to stakeholder questions and concerns. 
  These concerns were raised during lengthy settlement discussions among 
  OSHA, the United Steelworkers of America (the union representing the 
  largest proportion of beryllium-exposed workers), Materion Corporation 
  (the leading producer of beryllium and beryllium products), some of 
  Materion's customers, and the National Association of Manufacturers 
  (Document ID 2156). In addition to agreeing on the proposed revisions, 
  the parties agreed that if OSHA was not able to finalize the 
  substantive NPRM before December 12, 2018, compliance with the 
  beryllium standard as modified by the proposal would be accepted as 
  compliance with the standard under OSHA's de minimis policy (Document 
  ID 2156).
      The revisions OSHA plans to propose are primarily clarifying or 
  simplifying in nature (Document ID 2156). They are designed to enhance 
  worker protections by ensuring that the rule is well-understood and 
  compliance is simple and straightforward. All of the provisions covered 
  by this extension will be affected by the planned rulemaking.
      OSHA has preliminarily determined that it would be undesirable, for 
  both the Agency and the regulated community, to begin enforcement of 
  the ancillary provisions of the standard that will be affected by the 
  upcoming rulemaking. Enforcing compliance with the relevant ancillary 
  requirements, as currently written, before publishing the agreed-upon 
  proposal, is likely to result in employers taking unnecessary measures 
  to comply with provisions that OSHA intends to clarify. This proposed 
  compliance date extension will give OSHA time to prepare and publish 
  the planned substantive NPRM to amend the standard before employers 
  must comply with the affected provisions of the rule, at which point 
  OSHA may rely on its de minimis policy and employers may comply with 
  the proposed provisions without risk of a citation.
      Therefore, OSHA is proposing this short extension of the compliance 
  date for the following provisions: Beryllium work areas and regulated 
  areas (paragraph (e)), written exposure control plans (paragraph 
  (f)(1)), personal protective clothing and equipment (paragraph (h)), 
  hygiene areas and practices (paragraph (i) except for change rooms and 
  showers; see below), housekeeping (paragraph (j)), communication of 
  hazards (paragraph (m)), and recordkeeping (paragraph (n)).
      Not every provision in the standard will be covered by the proposed 
  extension. First, the proposal will not affect the compliance date for 
  the updated TWA PEL and STEL (paragraph (c)), exposure assessment 
  (paragraph (d)), or respiratory protection (paragraph (g)). These 
  paragraphs are not affected by the regulatory revisions OSHA plans to 
  propose, and are essential to ensure employers are controlling worker 
  exposures to beryllium while OSHA works on the rulemaking to amend 
  other aspects of the standard. The compliance dates for paragraphs (c), 
  (d), and (g) are unaffected by this proposal.
      Second, the proposal will not affect the compliance date for 
  medical surveillance (paragraph (k)) or medical removal protection 
  (paragraph (l)). Although OSHA plans to propose clarifications to 
  certain definitions pertaining to paragraph (k) (Medical Surveillance), 
  OSHA has preliminarily determined that the proposed clarifications 
  would not substantially affect the actions that employers must take to 
  comply with the medical surveillance provisions of the beryllium 
  standard (Document ID 2156).\3\ OSHA has also preliminarily determined 
  that access to medical surveillance should not be delayed because, as 
  explained in the preamble to the 2017 beryllium rule, the early 
  identification of beryllium-related health effects can contribute to 
  effective management of early signs and symptoms (82 FR at 2546, 2720-
  2721; Document ID 1756, Tr. 111, 132). Therefore, the compliance date 
  for medical surveillance (paragraph (k)) is unaffected by this 
  proposal. Until the substantive rulemaking is proposed, however, 
  employers may comply with the medical surveillance provisions as 
  clarified by the definitions of ``CBD diagnostic center,'' ``chronic 
  beryllium disease,'' and ``confirmed positive'' that OSHA has agreed to 
  propose in the substantive rulemaking NPRM, which are available in the 
  docket (Document ID 2156) and in OSHA's interim enforcement guidance on 
  the OSHA website (https://www.osha.gov/laws-regs/standardinterpretations/2018-05-09). OSHA has also determined, 
  preliminarily, that this compliance date extension should have no 
  effect on medical removal protection (paragraph (l)), because 
  compliance with medical removal protection is not directly affected by 
  the changes OSHA is planning to propose to the rule (Document ID 2156).
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      \3\ OSHA plans to propose revisions to the definition of ``CBD 
  diagnostic center'' to prevent confusion about staffing requirements 
  for CBD diagnostic centers. OSHA plans to propose a change to the 
  definition of ``chronic beryllium disease'' to narrow the scope and 
  avoid confusion with other lung diseases. OSHA also plans to propose 
  a change to the definition of ``confirmed positive'' to clarify that 
  the results must be obtained within the 30 day follow-up test period 
  required after a first abnormal or borderline BeLPT test result 
  (Document ID 2156).
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      Third, the proposal will not affect paragraph (a), Scope and 
  application. It will also not affect paragraph (b), Definitions, except 
  as described above to allow employers to comply with the definitions of 
  ``CBD diagnostic center,'' ``chronic beryllium disease,'' and 
  ``confirmed positive'' that are included in the settlement agreement 
  and will be proposed in the substantive rulemaking NPRM (Document ID 
  2156).
      Finally, the compliance date for change rooms and showers required 
  by paragraph (i) of the standard will remain March 11, 2019 (29 CFR 
  1910.1024(o)(2)(i)), and the compliance date to implement engineering 
  controls required by paragraph (f) of the standard will remain March 
  10, 2020 (29 CFR 1910.1024(o)(2)(ii)). OSHA expects to publish the 
  planned NPRM well in advance of these compliance dates.
      Although OSHA is proposing to extend the compliance date for 
  paragraph (m), Communication of Hazards--which includes specific 
  labeling requirements--manufacturers, importers, and employers are 
  still obligated to label hazardous chemicals containing beryllium, 
  ensure that safety data sheets are readily available, and train workers 
  on the hazards of beryllium in accordance with the Hazard Communication 
  Standard (HCS), 29 CFR 1910.1200. OSHA encourages employers to review 
  their hazard communication program, employee training, and other hazard 
  communication practices (such as workplace labeling) to ensure 
  continued compliance with the HCS. Also, while OSHA is proposing to 
  extend the compliance date for the recordkeeping requirements of 
  paragraph (n), OSHA expects employers to continue to comply with 29 CFR 
  1910.1020 (Access

  
  to Employee Exposure and Medical Records).
      OSHA seeks comment on this proposal to revise paragraph (o) of the 
  general industry beryllium standard to extend the compliance date for 
  select ancillary provisions. OSHA welcomes comment on both the duration 
  and scope of the proposed compliance date extension. OSHA encourages 
  commenters to include a rationale for any concerns raised with this 
  proposal, as well as for alternatives that they propose. OSHA also 
  requests comment on the ``Agency Determinations'' section that follows, 
  including the preliminary economic analysis and other regulatory 
  impacts of this rule on the regulated community. Please note that 
  comments on the changes OSHA plans to propose to the ancillary 
  requirements of the general industry standard should be reserved for 
  submission during the public comment period for that NPRM.
  
  II. Agency Determinations
  
  A. Preliminary Economic Analysis and Regulatory Flexibility 
  Certification
  
      Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 
  U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 
  1532(a)) require that OSHA estimate the benefits, costs, and net 
  benefits of regulations, and analyze the impacts of certain rules that 
  OSHA promulgates. Executive Order 13563 emphasizes the importance of 
  quantifying both costs and benefits, reducing costs, harmonizing rules, 
  and promoting flexibility.
      This proposed rule is not an ``economically significant regulatory 
  action'' under Executive Order 12866 or UMRA, or a ``major rule'' under 
  the Congressional Review Act (5 U.S.C. 801 et seq.). Neither the 
  benefits nor the costs of this proposal would exceed $100 million in 
  any given year. This proposed rule to extend the compliance date for 
  certain ancillary provisions in the beryllium standard would result in 
  cost savings. Cost savings arise in this context because a delay in 
  incurred costs for employers would allow them to invest the funds (and 
  earn an expected return at the going interest rate) that would 
  otherwise have been spent to comply with the beryllium standard.
      At a discount rate of 3 percent, this proposed compliance date 
  extension would yield annualized cost savings of $0.76 million per year 
  for 10 years. At a discount rate of 7 percent, this proposal would 
  yield an annualized cost savings of $1.73 million per year for 10 
  years. When the Department uses a perpetual time horizon to allow for 
  cost comparisons under Executive Order 13771 (82 FR 9339, Jan. 30, 
  2017), the annualized cost savings of this proposed compliance date 
  extension is $1.65 million at a discount rate of 7 percent.
  1. Changes to the Baseline: Updating to 2017 Dollars and Removing 
  Ramiliarization Costs; Discussion of Overhead Costs
      More than one year has elapsed since promulgation of the beryllium 
  standard on January 9, 2017, so OSHA has updated the projected costs 
  for general industry contained in the final economic analysis (FEA) 
  that accompanied the rule from 2015 to 2017 dollars, using the latest 
  Occupational Employment Statistics (OES) wage data (for 2016) and 
  inflating them to 2017 dollars. Additionally, although familiarization 
  costs were included in the cost estimates developed in the beryllium 
  FEA, OSHA expects that those costs have already been incurred by 
  affected employers, and is excluding them from its analysis of the cost 
  savings associated with the proposed extension of compliance dates. 
  Thus, baseline costs for this preliminary economic analysis (PEA) are 
  the projected costs from the 2017 FEA, updated to 2017 dollars, less 
  familiarization costs.
      OSHA notes that it did not include an overhead labor cost in the 
  2017 FEA, and has not accounted for such costs in this PEA. There is 
  not one broadly accepted overhead rate, and the use of overhead to 
  estimate the marginal costs of labor raises a number of issues that 
  should be addressed before applying overhead costs to analyze the cost 
  implications of any specific regulation. There are several ways to look 
  at the cost elements that fit the definition of overhead, and there is 
  a range of overhead estimates currently used within the federal 
  government--for example, the Environmental Protection Agency has used 
  17 percent,\4\ and government contractors have been reported to use an 
  average of 77 percent.\5\ Some overhead costs, such as advertising and 
  marketing, may be more closely correlated with output than with labor. 
  Other overhead costs vary with the number of new employees. For 
  example, rent or payroll processing costs may change little with the 
  addition of 1 employee in a 500-employee firm, but may change 
  substantially with the addition of 100 employees. If an employer is 
  able to rearrange current employees' duties to implement a rule, then 
  the marginal share of overhead costs, such as rent, insurance, and 
  major office equipment (e.g., computers, printers, copiers), would be 
  very difficult to measure with accuracy.
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      \4\ Grant Thornton, LLP, 2015 Government Contractor Survey 
  (Document ID OSHA-H005C-2006-0870-2153). The application of this 
  overhead rate was based on an approach used by the Environmental 
  Protection Agency (EPA), as described in EPA's ``Wage Rates for 
  Economic Analyses of the Toxics Release Inventory Program,'' June 
  10, 2002. This analysis itself was based on a survey of several 
  large chemical manufacturing plants: Heiden Associates, Final 
  Report: A Study of Industry Compliance Costs Under the Final 
  Comprehensive Assessment Information Rule, Prepared for the Chemical 
  Manufacturers Association, December 14, 1989.
      \5\ For further examples of overhead cost estimates, please see 
  the Employee Benefits Security Administration's guidance at https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf.
  ---------------------------------------------------------------------------
  
      If OSHA had included an overhead rate when estimating the marginal 
  cost of labor, without further analyzing an appropriate quantitative 
  adjustment, and adopted for these purposes an overhead rate of 17 
  percent on base wages, the cost savings of this proposal would increase 
  to approximately $0.82 million per year, at a discount rate of 3 
  percent, or to approximately $1.87 million per year, at a discount rate 
  of 7 percent.\6\ The addition of 17 percent overhead on base wages 
  would therefore increase cost savings by approximately 8 percent above 
  the primary estimate at either discount rate.
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      \6\ OSHA used an overhead rate of 17 percent on base wages in a 
  sensitivity analysis in the FEA (OSHA-2010-0034-4247, p. VII-65) in 
  support of the March 25, 2016 final respirable crystalline silica 
  standards (81 FR 16286) and in the PEA in support of the June 27, 
  2017 beryllium proposal for the construction and shipyard sectors 
  (82 FR 29201).
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  2. Changes to the Standard: Nine-Month Extension of the Compliance Date 
  for Some Ancillary Provisions
      The beryllium standard went into effect on May 20, 2017, with most 
  compliance obligations beginning on March 12, 2018. OSHA is proposing 
  to extend the compliance date for specific provisions until December 
  12, 2018. The compliance dates for the updated PELs, exposure 
  assessment, respiratory protection, medical surveillance, and medical 
  removal protection requirements, and for some other provisions for 
  which the standard already establishes compliance dates in 2019 and 
  2020, would not change as a result of this proposal. The applicability 
  of the scope and application paragraph and the definitions would also 
  not change as a result of this proposal, except to allow employers to 
  comply with the definitions of ``CBD diagnostic center,'' ``chronic 
  beryllium disease,'' and ``confirmed positive'' that will be

  
  proposed in the later substantive rulemaking NPRM (Document ID 2156). 
  As discussed previously, the purpose of this proposal is to provide 
  time for OSHA to issue a planned NPRM that would affect the parts of 
  the standard that are covered by this proposed compliance date 
  extension before that compliance date is reached, so that OSHA may rely 
  on its de minimis policy and employers may comply with the proposed 
  provisions without risk of a citation.
      OSHA estimated cost savings of the proposed extension relative to 
  baseline costs, where baseline costs reflect the costs of compliance 
  without the proposed change to the compliance date provision. OSHA 
  calculated the cost savings by lagging the first-year costs for the 
  affected provisions by nine months and then calculating the present 
  value of the delayed costs over the 10 years following the proposed 
  compliance date. Annualizing the present value of cost savings over ten 
  years, the result is an annualized cost savings of $0.76 million per 
  year at a discount rate of 3 percent, or $1.73 million per year at a 
  discount rate of 7 percent. When the Department uses a perpetual time 
  horizon to allow for cost comparisons under Executive Order 13771, the 
  annualized cost savings of this proposed compliance date extension is 
  $1.65 million at a discount rate of 7 percent.
      The undiscounted cost savings by provision and year are presented 
  below in Table 1. As shown in Table 1, and described elsewhere in this 
  notice, the cost savings described in this PEA reflect savings only for 
  provisions covered by the proposed compliance date extension. OSHA 
  estimated no cost savings for the PELs, exposure assessment, 
  respiratory protection, medical surveillance, or medical removal 
  protection provisions (as they are not covered by the proposed 
  extension), or for any provisions for which the rule already 
  establishes compliance dates in 2019 (change rooms/showers) or 2020 
  (engineering controls).\7\ The cost savings by year and discount rate 
  are shown below in Table 2.
  ---------------------------------------------------------------------------
  
      \7\ Note that the labor costs associated with time spent 
  changing clothes are generally triggered by wearing personal 
  protective equipment, as required by paragraph (h) of the beryllium 
  standard. OSHA is proposing to extend the compliance date for 
  paragraph (h). If the proposal is adopted, the rule would not 
  require employers to incur the labor costs associated with changing 
  time for personal protective equipment until December 12, 2018, so 
  OSHA is generally accounting for those cost savings in this PEA. 
  OSHA has not accounted for any cost savings related to the use of 
  head covers, however. Head covers may be used to prevent 
  contamination of employees' hair, potentially precluding the need 
  for showers under paragraph (i)(3) of the standard. Because this 
  proposal would not extend the compliance date for showers, OSHA has 
  not accounted for head covers for purposes of estimating the cost 
  savings associated with this proposal.
  ---------------------------------------------------------------------------
  
  3. Economic and Technological Feasibility
      In the FEA for the beryllium standard, OSHA concluded that the rule 
  was technologically feasible. OSHA has preliminarily determined that 
  this proposal is also technologically feasible because it does not 
  change any of the rule's substantive requirements, and, if adopted, 
  would simply give employers more time to comply with some of the rule's 
  ancillary requirements. Furthermore, OSHA previously concluded that the 
  beryllium standard was economically feasible. As this proposal does not 
  impose any new substantive requirements, and results in cost savings, 
  OSHA has preliminarily concluded that the proposal is also economically 
  feasible.
  4. Effects on Benefits
      The planned rulemaking to revise the general industry beryllium 
  standard is intended to be responsive to questions and concerns 
  expressed by stakeholders regarding ancillary provisions of the rule. 
  Safety and health programs can be inefficacious if employers and other 
  stakeholders are unclear about OSHA requirements. Hence, by addressing 
  stakeholder questions and concerns, the planned rulemaking will make it 
  more likely that the regulated community will realize the full benefits 
  of the rule, as estimated in the 2017 beryllium FEA. Although it is not 
  possible to quantify the effect of stakeholder uncertainty on the 
  projected benefits of the rule, OSHA preliminarily believes that the 
  short term loss of benefits associated with this proposed extension of 
  initial compliance dates will be more than offset in the long term by 
  the benefits that will be realized as a result of the Agency's effort 
  to provide additional clarity in the rule. OSHA has preliminarily 
  determined that this proposal will maintain essential safety and health 
  protections for workers.
  5. Certification of No Significant Impact on a Substantial Number of 
  Small Entities
      This proposal will result in cost savings for affected employers, 
  and those savings fall below levels that could be said to have a 
  significant positive economic impact on a substantial number of small 
  entities.\8\ Therefore, OSHA certifies that this proposed standard 
  would not have a significant impact on a substantial number of small 
  entities.
  ---------------------------------------------------------------------------
  
      \8\ OSHA investigated whether the projected cost savings would 
  exceed 1 percent of revenues or 5 percent of profits for small 
  entities and very small entities for every industry. To determine if 
  this was the case, OSHA returned to its original regulatory 
  flexibility analysis (in the 2017 FEA) for small entities and very 
  small entities. OSHA found that the cost savings of this proposal 
  are such a small percentage of revenues and profits for every 
  affected industry that OSHA's criteria would not be exceeded for any 
  industry.
  ---------------------------------------------------------------------------
  
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                               Table 2--Cost Savings Due to Compliance Date Extension
  ----------------------------------------------------------------------------------------------------------------
                                                                     Undiscounted     Discounted      Discounted
                        Year                               t         costs by year     costs--3%       costs--7%
  ----------------------------------------------------------------------------------------------------------------
                                                      Baseline
  ----------------------------------------------------------------------------------------------------------------
  1...............................................            1.00     $53,861,070     $52,292,301     $50,337,449
  2...............................................            2.00      31,965,865      30,130,893      27,920,224
  3...............................................            3.00      31,965,865      29,253,295      26,093,668
  4...............................................            4.00      31,965,865      28,401,257      24,386,605
  5...............................................            5.00      31,965,865      27,574,036      22,791,220
  6...............................................            6.00      31,965,865      26,770,909      21,300,205
  7...............................................            7.00      31,965,865      25,991,173      19,906,734
  8...............................................            8.00      31,965,865      25,234,149      18,604,424
  9...............................................            9.00      31,965,865      24,499,174      17,387,312
  10..............................................           10.00      31,965,865      23,785,605      16,249,825
      Total.......................................  ..............  ..............     293,932,792     244,977,667
      Annualized--10 Years........................  ..............  ..............      34,457,890      34,879,308
  ----------------------------------------------------------------------------------------------------------------
                                                Discounting Option 1
  ----------------------------------------------------------------------------------------------------------------
  1...............................................            1.75      53,861,070      51,145,783      47,846,852
  2...............................................            2.75      31,965,865      29,470,268      26,538,787
  3...............................................            3.75      31,965,865      28,611,911      24,802,605
  4...............................................            4.75      31,965,865      27,778,554      23,180,004
  5...............................................            5.75      31,965,865      26,969,470      21,663,556
  6...............................................            6.75      31,965,865      26,183,952      20,246,314
  7...............................................            7.75      31,965,865      25,421,312      18,921,788
  8...............................................            8.75      31,965,865      24,680,886      17,683,914
  9...............................................            9.75      31,965,865      23,962,025      16,527,023
  10..............................................           10.75      31,965,865      23,264,102      15,445,816
      Total.......................................  ..............  ..............     287,488,264     232,856,658
      Annualized--10 Years........................  ..............  ..............      33,702,395      33,153,550
      Difference from Baseline....................  ..............  ..............        -755,495      -1,725,759
  ----------------------------------------------------------------------------------------------------------------
  
  B. Paperwork Reduction Act
  
      This NPRM does not propose changes to the information collections 
  already approved by Office of Management and Budget (OMB). OMB approved 
  the information collection requirements for the general industry 
  beryllium standard under OMB Control Number 1218-0267, with an 
  expiration date of April 30, 2020.
  
  C. Federalism
  
      OSHA reviewed this proposed rule in accordance with Executive Order 
  13132 on Federalism (64 FR 43255, (Aug. 10, 1999)), which requires that 
  Federal agencies, to the extent possible, refrain from limiting state 
  policy options, consult with states prior to taking any actions that 
  would restrict state policy options, and take such actions only when 
  clear constitutional authority exists and the problem is national in 
  scope. Executive Order 13132 provides for preemption of state law only 
  with the expressed consent of Congress. Federal agencies must limit any 
  such preemption to the extent possible.
      Under Section 18 of the Occupational Safety and Health Act of 1970 
  (OSH Act; 29 U.S.C. 651 et seq.), Congress expressly provides that 
  states and U.S. territories may adopt, with Federal approval, a plan 
  for the development and enforcement of occupational safety and health 
  standards. OSHA refers to such states and territories as ``State Plan 
  States.'' Occupational safety and health standards developed by State 
  Plan States must be at least as effective in providing safe and 
  healthful employment and places of employment as the Federal standards. 
  29 U.S.C. 667. Subject to these requirements, State Plan States are 
  free to develop and enforce under state law their own requirements for 
  safety and health standards.
      OSHA previously concluded from its analysis that promulgation of 
  the beryllium standard complies with Executive Order 13132 (82 FR at 
  2633). In states without an OSHA-approved State Plan, any standard 
  developed from this proposed rule would limit state policy options in 
  the same manner as every standard promulgated by OSHA. For State Plan 
  States, Section 18 of the OSH Act, as noted in the previous paragraph, 
  permits State Plan States to develop and enforce their own beryllium 
  standards provided these requirements are at least as effective in 
  providing safe and healthful employment and places of employment as the 
  requirements specified in this proposal.
  
  D. State Plans
  
      When Federal OSHA promulgates a new standard or more stringent 
  amendment to an existing standard, State Plans must amend their 
  standards to reflect the new standard or amendment, or show OSHA why 
  such action is unnecessary, e.g., because an existing state standard 
  covering this area is ``at least as effective'' as the new Federal 
  standard or amendment (29 CFR 1953.5(a)). The state standard must be at 
  least as effective as the final Federal rule. State Plans must adopt 
  the Federal standard or complete their own standard within six months 
  of the promulgation date of the final Federal rule. When OSHA 
  promulgates a new standard or amendment that does not impose additional 
  or more stringent requirements than an existing standard, State Plans 
  do not have to amend their standards, although OSHA may encourage them 
  to do so. The 21 states and 1 U.S. territory with OSHA-approved 
  occupational safety and health plans covering private sector and state 
  and local government are: Alaska, Arizona, California, Hawaii, Indiana, 
  Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, 
  North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, 
  Vermont, Virginia, Washington, and Wyoming.

  
  Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin 
  Islands have OSHA-approved State Plans that apply to state and local 
  government employees only.
      The proposed amendments to OSHA's beryllium standard would not 
  impose any new requirements on employers. Accordingly, State Plans 
  would not have to amend their standards to extend the compliance dates 
  for their beryllium rules, but they may do so within the limits of any 
  extension adopted by Federal OSHA.
  
  E. Unfunded Mandates Reform Act
  
      When OSHA issued the final rule establishing standards for 
  occupational exposure to beryllium, it reviewed the rule according to 
  the Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.) 
  and Executive Order 13132 (64 FR 43255 (Aug. 10, 1999)). OSHA concluded 
  that the final rule did not meet the definition of a ``Federal 
  intergovernmental mandate'' under the UMRA because OSHA standards do 
  not apply to state or local governments except in states that 
  voluntarily adopt State Plans. OSHA further noted that the rule did not 
  impose costs of over $100 million per year on the private sector. (82 
  FR at 2634.)
      As discussed above in Section II. A (Preliminary Economic Analysis 
  and Regulatory Flexibility Certification) of this preamble, this 
  proposed extension does not impose any costs on private-sector 
  employers beyond those costs already identified in the final rule for 
  beryllium in general industry. Because OSHA reviewed the total costs of 
  the final rule under UMRA, no further review of those costs is 
  necessary. Therefore, for purposes of UMRA, OSHA certifies that this 
  proposed rule does not mandate that state, local, or tribal governments 
  adopt new, unfunded regulatory obligations of, or increase expenditures 
  by the private sector by, more than $100 million in any year.
  
  F. Consultation and Coordination With Indian Tribal Governments
  
      OSHA reviewed this proposed rule in accordance with Executive Order 
  13175 (65 FR 67249) and determined that it does not have ``tribal 
  implications'' as defined in that order. As proposed, the rule does not 
  have substantial direct effects on one or more Indian tribes, on the 
  relationship between the Federal government and Indian tribes, or on 
  the distribution of power and responsibilities between the Federal 
  government and Indian tribes.
  
  G. Legal Considerations
  
      The purpose of the Occupational Safety and Health Act of 1970 (29 
  U.S.C. 651 et seq.) is ``to assure so far as possible every working man 
  and woman in the nation safe and healthful working conditions and to 
  preserve our human resources.'' 29 U.S.C. 651(b). To achieve this goal, 
  Congress authorized the Secretary of Labor to promulgate and enforce 
  occupational safety and health standards. 29 U.S.C. 654(b), 655(b). A 
  safety or health standard is a standard ``which requires conditions, or 
  the adoption or use of one or more practices, means, methods, 
  operations, or processes, reasonably necessary or appropriate to 
  provide safe or healthful employment or places of employment.'' 29 
  U.S.C. 652(8). A standard is reasonably necessary or appropriate within 
  the meaning of Section 652(8) when a significant risk of material harm 
  exists in the workplace and the standard would substantially reduce or 
  eliminate that workplace risk. See Industrial Union Department, AFL-CIO 
  v. American Petroleum Institute, 448 U.S. 607 (1980). In the beryllium 
  rulemaking, OSHA made such a determination with respect to beryllium 
  exposure in general industry (82 FR at 2479). This proposed rule does 
  not impose any new requirements on employers. Therefore, this proposal 
  does not require an additional significant risk finding. See Edison 
  Electric Institute v. OSHA, 849 F.2d 611, 620 (D.C. Cir. 1988).
      In addition to materially reducing a significant risk, a health 
  standard must be technologically and economically feasible. United 
  Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1251 (D.C. 
  Cir. 1980) (OSHA must reduce risk ``as far as it c[an] within the 
  limits of [technological and economic] feasibility.'') A standard is 
  technologically feasible when the protective measures it requires 
  already exist, when available technology can bring the protective 
  measures into existence, or when that technology is reasonably likely 
  to develop. See American Textile Mfrs. Institute v. OSHA, 452 U.S. 490, 
  513 (1981); American Iron and Steel Institute v. OSHA, 939 F.2d 975, 
  980 (D.C. Cir. 1991). And a rule is economically feasible if it does 
  not ``threaten massive dislocation to, or imperil the existence of, 
  [an] industry.'' United Steelworkers, 647 F.2d at 1265 (internal 
  citations and quotation marks omitted). In the 2017 FEA for the 
  beryllium standard, OSHA found the standard to be technologically and 
  economically feasible (82 FR at 2471). This proposed rule would be 
  technologically and economically feasible as well because it would not 
  require employers to implement any additional protective measures and 
  would not impose any additional costs on employers.
  
  List of Subjects in 29 CFR Part 1910
  
      Beryllium, Occupational safety and health.
  
      Signed at Washington, DC, on May 25, 2018.
  Loren Sweatt,
  Deputy Assistant Secretary of Labor for Occupational Safety and Health.
  
  Amendments to Standards
  
      For the reasons stated in the preamble of this proposed rule, OSHA 
  proposes to amend 29 CFR part 1910 as follows:
  
  PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
  
  Subpart Z--Toxic and Hazardous Substances
  
  0
  1. The authority citation for subpart Z of 29 CFR part 1910 is revised 
  to read as follows:
  
      Authority:  29 U.S.C. 653, 655, 657; Secretary of Labor's Order 
  No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 
  (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 
  65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 
  3912); 29 CFR part 1911; and 5 U.S.C. 553, as applicable.
      Section 1910.1030 also issued under Public Law 106-430, 114 
  Stat. 1901.
      Section 1910.1201 also issued under 40 U.S.C. 5101 et seq.
  
  0
  2. Amend Sec.  1910.1024 by revising paragraph (o)(2) to read as 
  follows:
  
  
  Sec.  1910.1024  Beryllium.
  
  * * * * *
      (o) * * *
      (2) Compliance dates. (i) Obligations contained in paragraphs (c), 
  (d), (g), (k), and (l) of this standard: March 12, 2018;
      (ii) Change rooms and showers required by paragraph (i) of this 
  standard: March 11, 2019;
      (iii) Engineering controls required by paragraph (f) of this 
  standard: March 10, 2020; and
      (iv) All other obligations of this standard: December 12, 2018.
  * * * * *
  [FR Doc. 2018-11643 Filed 5-31-18; 8:45 am]
   BILLING CODE 4510-26-P