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