[Federal Register Volume 83, Number 106 (Friday, June 1, 2018)]
[Proposed Rules]
[Pages 25536-25543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11643]
Vol. 83
Friday,
No. 106
June 1, 2018
Part III
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1910
Limited Extension of Select Compliance Dates for Occupational Exposure
to Beryllium in General Industry; Proposed Rules
Federal Register / Vol. 83 , No. 106 / Friday, June 1, 2018 /
Proposed Rules
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket ID-OSHA-H005C-2006-0870]
RIN 1218-AB76
Limited Extension of Select Compliance Dates for Occupational
Exposure to Beryllium in General Industry
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Proposed rule.
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SUMMARY: OSHA is proposing a nine-month extension of the compliance
date for certain ancillary requirements of the general industry
beryllium standard (from March 12, 2018 to December 12, 2018). This
proposal would not extend the compliance date for the permissible
exposure limits (PELs), exposure assessment, respiratory protection,
medical surveillance, or medical removal protection provisions, or for
any provisions for which the standard already establishes compliance
dates in 2019 and 2020. OSHA has preliminarily determined that this
proposal will maintain essential safety and health protections for
workers while OSHA prepares an NPRM to clarify specific provisions of
the beryllium standard that would both maintain the standard's worker
safety and health protections and address employers' compliance
burdens.
DATES: Submit comments to this proposed rule, hearing requests, and
other information by July 2, 2018. All submissions must bear a postmark
or provide other evidence of the submission date.
ADDRESSES: Submit comments, hearing requests, and other material,
identified by Docket No. OSHA-H005C-2006-0870, using any of the
following methods:
Electronically: Submit comments and attachments, as well as hearing
requests and other information, electronically at https://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow
the instructions online for submitting comments. Note that this docket
may include several different Federal Register notices involving active
rulemakings, so it is extremely important to select the correct notice
or its ID number when submitting comments for this rulemaking. After
accessing ``all documents and comments'' in the docket (OSHA-H005C-
2006-0870), check the ``proposed rule'' box in the column headed
``Document Type,'' find the document posted on the date of publication
of this document, and click the ``Submit a Comment'' link. Additional
instructions for submitting comments are available from the https://www.regulations.gov homepage.
Facsimile: OSHA allows facsimile transmission of comments that are
10 pages or fewer in length (including attachments). Fax these
documents to the OSHA Docket Office at (202) 693-1648. OSHA does not
require hard copies of these documents. Instead of transmitting
facsimile copies of attachments that supplement these documents (e.g.,
studies, journal articles), commenters must submit these attachments to
the OSHA Docket Office, Docket No. OSHA-H005C-2006-0870, Room N-3653,
Occupational Safety and Health Administration, U.S. Department of
Labor, 200 Constitution Avenue NW, Washington, DC 20210. These
attachments must clearly identify the sender's name, the date, the
subject, and the docket number (OSHA-H005C-2006-0870) so that the
Docket Office can attach them to the appropriate document.
Regular mail, express delivery, hand delivery, and messenger
(courier) service: Submit comments and any additional material to the
OSHA Docket Office, Docket No. OSHA-H005C-2006-0870, Room N-3653,
Occupational Safety and Health Administration, U.S. Department of
Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone:
(202) 693-2350 (TTY (877) 889-5627). Contact the OSHA Docket Office for
information about security procedures concerning delivery of materials
by express delivery, hand delivery, and messenger service. The Docket
Office will accept deliveries (express delivery, hand delivery,
messenger service) during the Docket Office's normal business hours,
10:00 a.m. to 3:00 p.m., ET.
Instructions: All submissions must include the Agency's name, the
title of the rulemaking (Limited Extension of Select Compliance Dates
for Occupational Exposure to Beryllium in General Industry), and the
docket number (OSHA-H005C-2006-0870). OSHA will place comments and
other material, including any personal information, in the public
docket without revision, and the comments and other material will be
available online at https://www.regulations.gov. Therefore, OSHA
cautions commenters about submitting statements they do not want made
available to the public, or submitting comments that contain personal
information (either about themselves or others), such as Social
Security Numbers, birth dates, and medical data.
In this preamble, OSHA cites to documents in Docket No. OSHA-H005C-
2006-0870, the docket for this rulemaking. To simplify these document
cites, OSHA uses ``Document ID'' followed by the last four digits of
the full docket identification number. For example, if a document's
full docket identification number is ID-OSHA-H005C-2006-0870-1234, the
citation used in this preamble would be Document ID 1234. The docket is
available at https://www.regulations.gov, the Federal eRulemaking
Portal.
Docket: To read or download comments or other material in the
docket, go to https://www.regulations.gov or to the OSHA Docket Office
at the above address. The electronic docket for this proposed rule
established at https://www.regulations.gov contains most of the
documents in the docket. However, some information (e.g., copyrighted
material) is not available publicly to read or download through this
website. All submissions, including copyrighted material, are available
for inspection at the OSHA Docket Office. Contact the OSHA Docket
Office for assistance in locating docket submissions.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Mr. Frank Meilinger, OSHA Office of
Communications; telephone: (202) 693-1999; email:
meilinger.francis2@dol.gov.
General information and technical inquiries: William Perry or
Maureen Ruskin, Directorate of Standards and Guidance; telephone (202)
693-1950; email: perry.bill@dol.gov.
Copies of this Federal Register document and news releases:
Electronic copies of these documents are available at OSHA's web page
at https://www.osha.gov.
SUPPLEMENTARY INFORMATION:
I. Explanation of Regulatory Action
A. Introduction
OSHA is publishing this Notice of Proposed Rulemaking (NPRM) to
propose a nine-month extension of the compliance date for certain
requirements of the general industry beryllium standard (29 CFR
1910.1024), which was promulgated on January 9, 2017 (82 FR 2470). The
standard provides that the compliance date for the affected
requirements is March 12, 2018, but on March 2, 2018, OSHA issued a
memorandum stating that no provisions of the standard would be enforced
until May 11, 2018. Then, on
May 9, 2018, OSHA issued an enforcement memorandum stating that the
ancillary requirements that are affected by the planned NPRM will not
be enforced until June 25, 2018. Neither memorandum was published in
the Federal Register.
This proposed action would revise the standard to extend the
compliance date for the affected provisions until December 12, 2018.
OSHA is proposing to extend the compliance date for select ancillary
requirements of the general industry standard, but this proposal would
not extend the compliance date for PELs, exposure assessment,
respiratory protection, medical surveillance, or medical removal
protection provisions, or for any provisions for which the standard
already establishes compliance dates in 2019 and 2020. It also would
not affect the applicability of the scope and application paragraph or
the definitions, except to allow employers to comply with the
definitions of ``CBD diagnostic center,'' ``chronic beryllium
disease,'' and ``confirmed positive'' that will be proposed in the
later substantive rulemaking NPRM (Document ID 2156).\1\ As explained
in more detail in the following sections, OSHA believes the proposed
action is necessary to provide sufficient time for preparation and
publication of a planned NPRM that will affect the provisions of the
rule covered by this proposed extension.
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\1\ CBD is the acronym for chronic beryllium disease.
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As described in Section I.D, Explanation of Proposed Action and
Request for Comment, OSHA is planning to propose revisions to the
beryllium standard in accordance with a settlement agreement entered
into with stakeholders on April 24, 2018 (Document ID 2156). The
upcoming rulemaking will affect select ancillary provisions in the
standard. OSHA is concerned that beginning enforcement of those
provisions before publication of the substantive proposal may result in
employer confusion or improper implementation of the relevant
provisions of the rule.
B. Summary of Economic Impact
This proposed rule is not economically significant. OSHA is
revising 29 CFR 1910.1024(o)(2) to extend the deadline for compliance
with certain provisions of the beryllium rule for nine months. This
proposed rule is expected to be an Executive Order (E.O.) 13771
deregulatory action. Details on OSHA's cost/cost savings estimates for
this proposed rule can be found in the rule's preliminary economic
analysis in the ``Agency Determinations'' section of this preamble.
OSHA has estimated that, at a 3 percent discount rate over 10 years,
there are net annual cost savings of $0.76 million per year for this
proposed rule; at a discount rate of 7 percent there are net annual
cost savings of $1.73 million per year. When the Department uses a
perpetual time horizon, the annualized cost savings of the proposed
rule is $1.65 million with 7 percent discounting.
C. Regulatory Background
OSHA published an NPRM for occupational exposure to beryllium in
the Federal Register on August 7, 2015 (80 FR 47566). In the NPRM, the
Agency made a preliminary determination that employees exposed to
beryllium and beryllium compounds at the previous PEL faced a
significant risk to their health and that promulgating the proposed
standard would substantially reduce that risk. The NPRM invited
interested stakeholders to submit comments on a variety of issues.
OSHA held a public hearing in Washington, DC, on March 21 and 22,
2016. The Agency heard testimony from several organizations, including
public health groups, industry representatives, and labor unions.
Following the hearing, participants had an opportunity to submit
additional evidence and data, as well as final briefs, arguments, and
summations (Document ID 1756, Tr. 326).
On January 9, 2017, after considering the entire record, OSHA
issued a final rule with three separate standards for general industry,
shipyards, and construction, in order to tailor requirements to the
circumstances found in these sectors. See 82 FR 2470 (January 9, 2017).
The final beryllium standards established new PELs of 0.2 [mu]g/m\3\ as
an 8-hour time-weighted average (TWA) and 2.0 [mu]g/m\3\ as a short-
term exposure limit (STEL) determined over a sampling period of 15
minutes. The standards also established other provisions to protect
employees, such as requirements for exposure assessment, methods for
controlling exposure, respiratory protection, personal protective
clothing and equipment, housekeeping, medical surveillance, medical
removal, hazard communication, and recordkeeping. The general industry
standard established a compliance date (when obligations of the
standard commence and become enforceable) of March 12, 2018, for all
obligations except change rooms and showers required by paragraph (i)
(compliance date of March 11, 2019) and engineering controls required
by paragraph (f) (compliance date of March 10, 2020). See 29 CFR
1910.1024(o)(2).
Following promulgation of the final standard, representatives of
general industry employers, including Materion Corporation, along with
representatives of the coal-fired power industry and the aluminum
production industry, challenged the rule in federal court and
approached OSHA with questions and concerns about some of the
provisions in the final rule.
In response to the stakeholder feedback, and to resolve the pending
litigation, OSHA is planning to propose revisions to certain provisions
in the general industry standard and rely on its de minimis policy
while the rulemaking is pending so that employers may comply with the
proposed provisions without risk of a citation.\2\ The revisions OSHA
plans to propose are generally designed to clarify the standard in
response to stakeholder questions or to simplify compliance, while in
all cases maintaining a high degree of protection from the adverse
health effects of beryllium exposure (Document ID 2156). For example,
the proposed changes include modifying certain definitions to clarify
the meaning of the terms, including a list of operations that trigger
the requirement for beryllium work areas so that employers understand
when they must set up a beryllium work area, and modifying the disposal
and recycling provisions to clarify that items designated for disposal
must be in containers that prevent the release of beryllium under
ordinary conditions rather than sealed, impermeable containers. The
proposed compliance date extension will give OSHA time to prepare and
publish the planned NPRM to amend the standard before employers must
comply with the affected provisions of the rule so that, until any such
changes are finalized, employers may comply with the proposed
provisions without risk of a citation.
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\2\ The OSH Act allows the Secretary of Labor to prescribe
procedures to issue notices instead of citations for ``de minimis
violations'' that have no direct or immediate relationship to safety
or health. 29 U.S.C. 658(a). The Secretary's de minimis policy is
set forth in its Field Operations Manual (FOM), available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-160.pdf. Under the de
minimis policy, compliance ``with a proposed OSHA standard or
amendment or a consensus standard rather than with the standard in
effect at the time of the inspection and the employer's action
clearly provides equal or greater employee protection'' is a de
minimis condition. De minimis conditions result in no citation or
penalties. See 29 CFR 1903.15 (``Penalties shall not be proposed for
de minimis violations which have no direct or immediate relationship
to safety or health.''); https://www.osha.gov/Publications/osha3000.pdf.
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D. Explanation of Proposed Action and Request for Comment
OSHA is proposing to revise the ``Dates'' provision of the
beryllium standard (at 29 CFR 1910.1024(o)(2)) to extend the deadline
for compliance with most of the ancillary requirements of the standard
from March 12, 2018, to December 12, 2018. As previously discussed,
this proposed action would provide time for preparation and publication
of a planned NPRM that will impact the provisions covered by this
extension so that employers may comply with the proposed provisions
without risk of a citation (Document ID 2156).
OSHA will be proposing modifications to ancillary provisions of the
beryllium standard in response to stakeholder questions and concerns.
These concerns were raised during lengthy settlement discussions among
OSHA, the United Steelworkers of America (the union representing the
largest proportion of beryllium-exposed workers), Materion Corporation
(the leading producer of beryllium and beryllium products), some of
Materion's customers, and the National Association of Manufacturers
(Document ID 2156). In addition to agreeing on the proposed revisions,
the parties agreed that if OSHA was not able to finalize the
substantive NPRM before December 12, 2018, compliance with the
beryllium standard as modified by the proposal would be accepted as
compliance with the standard under OSHA's de minimis policy (Document
ID 2156).
The revisions OSHA plans to propose are primarily clarifying or
simplifying in nature (Document ID 2156). They are designed to enhance
worker protections by ensuring that the rule is well-understood and
compliance is simple and straightforward. All of the provisions covered
by this extension will be affected by the planned rulemaking.
OSHA has preliminarily determined that it would be undesirable, for
both the Agency and the regulated community, to begin enforcement of
the ancillary provisions of the standard that will be affected by the
upcoming rulemaking. Enforcing compliance with the relevant ancillary
requirements, as currently written, before publishing the agreed-upon
proposal, is likely to result in employers taking unnecessary measures
to comply with provisions that OSHA intends to clarify. This proposed
compliance date extension will give OSHA time to prepare and publish
the planned substantive NPRM to amend the standard before employers
must comply with the affected provisions of the rule, at which point
OSHA may rely on its de minimis policy and employers may comply with
the proposed provisions without risk of a citation.
Therefore, OSHA is proposing this short extension of the compliance
date for the following provisions: Beryllium work areas and regulated
areas (paragraph (e)), written exposure control plans (paragraph
(f)(1)), personal protective clothing and equipment (paragraph (h)),
hygiene areas and practices (paragraph (i) except for change rooms and
showers; see below), housekeeping (paragraph (j)), communication of
hazards (paragraph (m)), and recordkeeping (paragraph (n)).
Not every provision in the standard will be covered by the proposed
extension. First, the proposal will not affect the compliance date for
the updated TWA PEL and STEL (paragraph (c)), exposure assessment
(paragraph (d)), or respiratory protection (paragraph (g)). These
paragraphs are not affected by the regulatory revisions OSHA plans to
propose, and are essential to ensure employers are controlling worker
exposures to beryllium while OSHA works on the rulemaking to amend
other aspects of the standard. The compliance dates for paragraphs (c),
(d), and (g) are unaffected by this proposal.
Second, the proposal will not affect the compliance date for
medical surveillance (paragraph (k)) or medical removal protection
(paragraph (l)). Although OSHA plans to propose clarifications to
certain definitions pertaining to paragraph (k) (Medical Surveillance),
OSHA has preliminarily determined that the proposed clarifications
would not substantially affect the actions that employers must take to
comply with the medical surveillance provisions of the beryllium
standard (Document ID 2156).\3\ OSHA has also preliminarily determined
that access to medical surveillance should not be delayed because, as
explained in the preamble to the 2017 beryllium rule, the early
identification of beryllium-related health effects can contribute to
effective management of early signs and symptoms (82 FR at 2546, 2720-
2721; Document ID 1756, Tr. 111, 132). Therefore, the compliance date
for medical surveillance (paragraph (k)) is unaffected by this
proposal. Until the substantive rulemaking is proposed, however,
employers may comply with the medical surveillance provisions as
clarified by the definitions of ``CBD diagnostic center,'' ``chronic
beryllium disease,'' and ``confirmed positive'' that OSHA has agreed to
propose in the substantive rulemaking NPRM, which are available in the
docket (Document ID 2156) and in OSHA's interim enforcement guidance on
the OSHA website (https://www.osha.gov/laws-regs/standardinterpretations/2018-05-09). OSHA has also determined,
preliminarily, that this compliance date extension should have no
effect on medical removal protection (paragraph (l)), because
compliance with medical removal protection is not directly affected by
the changes OSHA is planning to propose to the rule (Document ID 2156).
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\3\ OSHA plans to propose revisions to the definition of ``CBD
diagnostic center'' to prevent confusion about staffing requirements
for CBD diagnostic centers. OSHA plans to propose a change to the
definition of ``chronic beryllium disease'' to narrow the scope and
avoid confusion with other lung diseases. OSHA also plans to propose
a change to the definition of ``confirmed positive'' to clarify that
the results must be obtained within the 30 day follow-up test period
required after a first abnormal or borderline BeLPT test result
(Document ID 2156).
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Third, the proposal will not affect paragraph (a), Scope and
application. It will also not affect paragraph (b), Definitions, except
as described above to allow employers to comply with the definitions of
``CBD diagnostic center,'' ``chronic beryllium disease,'' and
``confirmed positive'' that are included in the settlement agreement
and will be proposed in the substantive rulemaking NPRM (Document ID
2156).
Finally, the compliance date for change rooms and showers required
by paragraph (i) of the standard will remain March 11, 2019 (29 CFR
1910.1024(o)(2)(i)), and the compliance date to implement engineering
controls required by paragraph (f) of the standard will remain March
10, 2020 (29 CFR 1910.1024(o)(2)(ii)). OSHA expects to publish the
planned NPRM well in advance of these compliance dates.
Although OSHA is proposing to extend the compliance date for
paragraph (m), Communication of Hazards--which includes specific
labeling requirements--manufacturers, importers, and employers are
still obligated to label hazardous chemicals containing beryllium,
ensure that safety data sheets are readily available, and train workers
on the hazards of beryllium in accordance with the Hazard Communication
Standard (HCS), 29 CFR 1910.1200. OSHA encourages employers to review
their hazard communication program, employee training, and other hazard
communication practices (such as workplace labeling) to ensure
continued compliance with the HCS. Also, while OSHA is proposing to
extend the compliance date for the recordkeeping requirements of
paragraph (n), OSHA expects employers to continue to comply with 29 CFR
1910.1020 (Access
to Employee Exposure and Medical Records).
OSHA seeks comment on this proposal to revise paragraph (o) of the
general industry beryllium standard to extend the compliance date for
select ancillary provisions. OSHA welcomes comment on both the duration
and scope of the proposed compliance date extension. OSHA encourages
commenters to include a rationale for any concerns raised with this
proposal, as well as for alternatives that they propose. OSHA also
requests comment on the ``Agency Determinations'' section that follows,
including the preliminary economic analysis and other regulatory
impacts of this rule on the regulated community. Please note that
comments on the changes OSHA plans to propose to the ancillary
requirements of the general industry standard should be reserved for
submission during the public comment period for that NPRM.
II. Agency Determinations
A. Preliminary Economic Analysis and Regulatory Flexibility
Certification
Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5
U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C.
1532(a)) require that OSHA estimate the benefits, costs, and net
benefits of regulations, and analyze the impacts of certain rules that
OSHA promulgates. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility.
This proposed rule is not an ``economically significant regulatory
action'' under Executive Order 12866 or UMRA, or a ``major rule'' under
the Congressional Review Act (5 U.S.C. 801 et seq.). Neither the
benefits nor the costs of this proposal would exceed $100 million in
any given year. This proposed rule to extend the compliance date for
certain ancillary provisions in the beryllium standard would result in
cost savings. Cost savings arise in this context because a delay in
incurred costs for employers would allow them to invest the funds (and
earn an expected return at the going interest rate) that would
otherwise have been spent to comply with the beryllium standard.
At a discount rate of 3 percent, this proposed compliance date
extension would yield annualized cost savings of $0.76 million per year
for 10 years. At a discount rate of 7 percent, this proposal would
yield an annualized cost savings of $1.73 million per year for 10
years. When the Department uses a perpetual time horizon to allow for
cost comparisons under Executive Order 13771 (82 FR 9339, Jan. 30,
2017), the annualized cost savings of this proposed compliance date
extension is $1.65 million at a discount rate of 7 percent.
1. Changes to the Baseline: Updating to 2017 Dollars and Removing
Ramiliarization Costs; Discussion of Overhead Costs
More than one year has elapsed since promulgation of the beryllium
standard on January 9, 2017, so OSHA has updated the projected costs
for general industry contained in the final economic analysis (FEA)
that accompanied the rule from 2015 to 2017 dollars, using the latest
Occupational Employment Statistics (OES) wage data (for 2016) and
inflating them to 2017 dollars. Additionally, although familiarization
costs were included in the cost estimates developed in the beryllium
FEA, OSHA expects that those costs have already been incurred by
affected employers, and is excluding them from its analysis of the cost
savings associated with the proposed extension of compliance dates.
Thus, baseline costs for this preliminary economic analysis (PEA) are
the projected costs from the 2017 FEA, updated to 2017 dollars, less
familiarization costs.
OSHA notes that it did not include an overhead labor cost in the
2017 FEA, and has not accounted for such costs in this PEA. There is
not one broadly accepted overhead rate, and the use of overhead to
estimate the marginal costs of labor raises a number of issues that
should be addressed before applying overhead costs to analyze the cost
implications of any specific regulation. There are several ways to look
at the cost elements that fit the definition of overhead, and there is
a range of overhead estimates currently used within the federal
government--for example, the Environmental Protection Agency has used
17 percent,\4\ and government contractors have been reported to use an
average of 77 percent.\5\ Some overhead costs, such as advertising and
marketing, may be more closely correlated with output than with labor.
Other overhead costs vary with the number of new employees. For
example, rent or payroll processing costs may change little with the
addition of 1 employee in a 500-employee firm, but may change
substantially with the addition of 100 employees. If an employer is
able to rearrange current employees' duties to implement a rule, then
the marginal share of overhead costs, such as rent, insurance, and
major office equipment (e.g., computers, printers, copiers), would be
very difficult to measure with accuracy.
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\4\ Grant Thornton, LLP, 2015 Government Contractor Survey
(Document ID OSHA-H005C-2006-0870-2153). The application of this
overhead rate was based on an approach used by the Environmental
Protection Agency (EPA), as described in EPA's ``Wage Rates for
Economic Analyses of the Toxics Release Inventory Program,'' June
10, 2002. This analysis itself was based on a survey of several
large chemical manufacturing plants: Heiden Associates, Final
Report: A Study of Industry Compliance Costs Under the Final
Comprehensive Assessment Information Rule, Prepared for the Chemical
Manufacturers Association, December 14, 1989.
\5\ For further examples of overhead cost estimates, please see
the Employee Benefits Security Administration's guidance at https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf.
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If OSHA had included an overhead rate when estimating the marginal
cost of labor, without further analyzing an appropriate quantitative
adjustment, and adopted for these purposes an overhead rate of 17
percent on base wages, the cost savings of this proposal would increase
to approximately $0.82 million per year, at a discount rate of 3
percent, or to approximately $1.87 million per year, at a discount rate
of 7 percent.\6\ The addition of 17 percent overhead on base wages
would therefore increase cost savings by approximately 8 percent above
the primary estimate at either discount rate.
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\6\ OSHA used an overhead rate of 17 percent on base wages in a
sensitivity analysis in the FEA (OSHA-2010-0034-4247, p. VII-65) in
support of the March 25, 2016 final respirable crystalline silica
standards (81 FR 16286) and in the PEA in support of the June 27,
2017 beryllium proposal for the construction and shipyard sectors
(82 FR 29201).
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2. Changes to the Standard: Nine-Month Extension of the Compliance Date
for Some Ancillary Provisions
The beryllium standard went into effect on May 20, 2017, with most
compliance obligations beginning on March 12, 2018. OSHA is proposing
to extend the compliance date for specific provisions until December
12, 2018. The compliance dates for the updated PELs, exposure
assessment, respiratory protection, medical surveillance, and medical
removal protection requirements, and for some other provisions for
which the standard already establishes compliance dates in 2019 and
2020, would not change as a result of this proposal. The applicability
of the scope and application paragraph and the definitions would also
not change as a result of this proposal, except to allow employers to
comply with the definitions of ``CBD diagnostic center,'' ``chronic
beryllium disease,'' and ``confirmed positive'' that will be
proposed in the later substantive rulemaking NPRM (Document ID 2156).
As discussed previously, the purpose of this proposal is to provide
time for OSHA to issue a planned NPRM that would affect the parts of
the standard that are covered by this proposed compliance date
extension before that compliance date is reached, so that OSHA may rely
on its de minimis policy and employers may comply with the proposed
provisions without risk of a citation.
OSHA estimated cost savings of the proposed extension relative to
baseline costs, where baseline costs reflect the costs of compliance
without the proposed change to the compliance date provision. OSHA
calculated the cost savings by lagging the first-year costs for the
affected provisions by nine months and then calculating the present
value of the delayed costs over the 10 years following the proposed
compliance date. Annualizing the present value of cost savings over ten
years, the result is an annualized cost savings of $0.76 million per
year at a discount rate of 3 percent, or $1.73 million per year at a
discount rate of 7 percent. When the Department uses a perpetual time
horizon to allow for cost comparisons under Executive Order 13771, the
annualized cost savings of this proposed compliance date extension is
$1.65 million at a discount rate of 7 percent.
The undiscounted cost savings by provision and year are presented
below in Table 1. As shown in Table 1, and described elsewhere in this
notice, the cost savings described in this PEA reflect savings only for
provisions covered by the proposed compliance date extension. OSHA
estimated no cost savings for the PELs, exposure assessment,
respiratory protection, medical surveillance, or medical removal
protection provisions (as they are not covered by the proposed
extension), or for any provisions for which the rule already
establishes compliance dates in 2019 (change rooms/showers) or 2020
(engineering controls).\7\ The cost savings by year and discount rate
are shown below in Table 2.
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\7\ Note that the labor costs associated with time spent
changing clothes are generally triggered by wearing personal
protective equipment, as required by paragraph (h) of the beryllium
standard. OSHA is proposing to extend the compliance date for
paragraph (h). If the proposal is adopted, the rule would not
require employers to incur the labor costs associated with changing
time for personal protective equipment until December 12, 2018, so
OSHA is generally accounting for those cost savings in this PEA.
OSHA has not accounted for any cost savings related to the use of
head covers, however. Head covers may be used to prevent
contamination of employees' hair, potentially precluding the need
for showers under paragraph (i)(3) of the standard. Because this
proposal would not extend the compliance date for showers, OSHA has
not accounted for head covers for purposes of estimating the cost
savings associated with this proposal.
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3. Economic and Technological Feasibility
In the FEA for the beryllium standard, OSHA concluded that the rule
was technologically feasible. OSHA has preliminarily determined that
this proposal is also technologically feasible because it does not
change any of the rule's substantive requirements, and, if adopted,
would simply give employers more time to comply with some of the rule's
ancillary requirements. Furthermore, OSHA previously concluded that the
beryllium standard was economically feasible. As this proposal does not
impose any new substantive requirements, and results in cost savings,
OSHA has preliminarily concluded that the proposal is also economically
feasible.
4. Effects on Benefits
The planned rulemaking to revise the general industry beryllium
standard is intended to be responsive to questions and concerns
expressed by stakeholders regarding ancillary provisions of the rule.
Safety and health programs can be inefficacious if employers and other
stakeholders are unclear about OSHA requirements. Hence, by addressing
stakeholder questions and concerns, the planned rulemaking will make it
more likely that the regulated community will realize the full benefits
of the rule, as estimated in the 2017 beryllium FEA. Although it is not
possible to quantify the effect of stakeholder uncertainty on the
projected benefits of the rule, OSHA preliminarily believes that the
short term loss of benefits associated with this proposed extension of
initial compliance dates will be more than offset in the long term by
the benefits that will be realized as a result of the Agency's effort
to provide additional clarity in the rule. OSHA has preliminarily
determined that this proposal will maintain essential safety and health
protections for workers.
5. Certification of No Significant Impact on a Substantial Number of
Small Entities
This proposal will result in cost savings for affected employers,
and those savings fall below levels that could be said to have a
significant positive economic impact on a substantial number of small
entities.\8\ Therefore, OSHA certifies that this proposed standard
would not have a significant impact on a substantial number of small
entities.
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\8\ OSHA investigated whether the projected cost savings would
exceed 1 percent of revenues or 5 percent of profits for small
entities and very small entities for every industry. To determine if
this was the case, OSHA returned to its original regulatory
flexibility analysis (in the 2017 FEA) for small entities and very
small entities. OSHA found that the cost savings of this proposal
are such a small percentage of revenues and profits for every
affected industry that OSHA's criteria would not be exceeded for any
industry.
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Table 2--Cost Savings Due to Compliance Date Extension
----------------------------------------------------------------------------------------------------------------
Undiscounted Discounted Discounted
Year t costs by year costs--3% costs--7%
----------------------------------------------------------------------------------------------------------------
Baseline
----------------------------------------------------------------------------------------------------------------
1............................................... 1.00 $53,861,070 $52,292,301 $50,337,449
2............................................... 2.00 31,965,865 30,130,893 27,920,224
3............................................... 3.00 31,965,865 29,253,295 26,093,668
4............................................... 4.00 31,965,865 28,401,257 24,386,605
5............................................... 5.00 31,965,865 27,574,036 22,791,220
6............................................... 6.00 31,965,865 26,770,909 21,300,205
7............................................... 7.00 31,965,865 25,991,173 19,906,734
8............................................... 8.00 31,965,865 25,234,149 18,604,424
9............................................... 9.00 31,965,865 24,499,174 17,387,312
10.............................................. 10.00 31,965,865 23,785,605 16,249,825
Total....................................... .............. .............. 293,932,792 244,977,667
Annualized--10 Years........................ .............. .............. 34,457,890 34,879,308
----------------------------------------------------------------------------------------------------------------
Discounting Option 1
----------------------------------------------------------------------------------------------------------------
1............................................... 1.75 53,861,070 51,145,783 47,846,852
2............................................... 2.75 31,965,865 29,470,268 26,538,787
3............................................... 3.75 31,965,865 28,611,911 24,802,605
4............................................... 4.75 31,965,865 27,778,554 23,180,004
5............................................... 5.75 31,965,865 26,969,470 21,663,556
6............................................... 6.75 31,965,865 26,183,952 20,246,314
7............................................... 7.75 31,965,865 25,421,312 18,921,788
8............................................... 8.75 31,965,865 24,680,886 17,683,914
9............................................... 9.75 31,965,865 23,962,025 16,527,023
10.............................................. 10.75 31,965,865 23,264,102 15,445,816
Total....................................... .............. .............. 287,488,264 232,856,658
Annualized--10 Years........................ .............. .............. 33,702,395 33,153,550
Difference from Baseline.................... .............. .............. -755,495 -1,725,759
----------------------------------------------------------------------------------------------------------------
B. Paperwork Reduction Act
This NPRM does not propose changes to the information collections
already approved by Office of Management and Budget (OMB). OMB approved
the information collection requirements for the general industry
beryllium standard under OMB Control Number 1218-0267, with an
expiration date of April 30, 2020.
C. Federalism
OSHA reviewed this proposed rule in accordance with Executive Order
13132 on Federalism (64 FR 43255, (Aug. 10, 1999)), which requires that
Federal agencies, to the extent possible, refrain from limiting state
policy options, consult with states prior to taking any actions that
would restrict state policy options, and take such actions only when
clear constitutional authority exists and the problem is national in
scope. Executive Order 13132 provides for preemption of state law only
with the expressed consent of Congress. Federal agencies must limit any
such preemption to the extent possible.
Under Section 18 of the Occupational Safety and Health Act of 1970
(OSH Act; 29 U.S.C. 651 et seq.), Congress expressly provides that
states and U.S. territories may adopt, with Federal approval, a plan
for the development and enforcement of occupational safety and health
standards. OSHA refers to such states and territories as ``State Plan
States.'' Occupational safety and health standards developed by State
Plan States must be at least as effective in providing safe and
healthful employment and places of employment as the Federal standards.
29 U.S.C. 667. Subject to these requirements, State Plan States are
free to develop and enforce under state law their own requirements for
safety and health standards.
OSHA previously concluded from its analysis that promulgation of
the beryllium standard complies with Executive Order 13132 (82 FR at
2633). In states without an OSHA-approved State Plan, any standard
developed from this proposed rule would limit state policy options in
the same manner as every standard promulgated by OSHA. For State Plan
States, Section 18 of the OSH Act, as noted in the previous paragraph,
permits State Plan States to develop and enforce their own beryllium
standards provided these requirements are at least as effective in
providing safe and healthful employment and places of employment as the
requirements specified in this proposal.
D. State Plans
When Federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, State Plans must amend their
standards to reflect the new standard or amendment, or show OSHA why
such action is unnecessary, e.g., because an existing state standard
covering this area is ``at least as effective'' as the new Federal
standard or amendment (29 CFR 1953.5(a)). The state standard must be at
least as effective as the final Federal rule. State Plans must adopt
the Federal standard or complete their own standard within six months
of the promulgation date of the final Federal rule. When OSHA
promulgates a new standard or amendment that does not impose additional
or more stringent requirements than an existing standard, State Plans
do not have to amend their standards, although OSHA may encourage them
to do so. The 21 states and 1 U.S. territory with OSHA-approved
occupational safety and health plans covering private sector and state
and local government are: Alaska, Arizona, California, Hawaii, Indiana,
Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico,
North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah,
Vermont, Virginia, Washington, and Wyoming.
Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin
Islands have OSHA-approved State Plans that apply to state and local
government employees only.
The proposed amendments to OSHA's beryllium standard would not
impose any new requirements on employers. Accordingly, State Plans
would not have to amend their standards to extend the compliance dates
for their beryllium rules, but they may do so within the limits of any
extension adopted by Federal OSHA.
E. Unfunded Mandates Reform Act
When OSHA issued the final rule establishing standards for
occupational exposure to beryllium, it reviewed the rule according to
the Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq.)
and Executive Order 13132 (64 FR 43255 (Aug. 10, 1999)). OSHA concluded
that the final rule did not meet the definition of a ``Federal
intergovernmental mandate'' under the UMRA because OSHA standards do
not apply to state or local governments except in states that
voluntarily adopt State Plans. OSHA further noted that the rule did not
impose costs of over $100 million per year on the private sector. (82
FR at 2634.)
As discussed above in Section II. A (Preliminary Economic Analysis
and Regulatory Flexibility Certification) of this preamble, this
proposed extension does not impose any costs on private-sector
employers beyond those costs already identified in the final rule for
beryllium in general industry. Because OSHA reviewed the total costs of
the final rule under UMRA, no further review of those costs is
necessary. Therefore, for purposes of UMRA, OSHA certifies that this
proposed rule does not mandate that state, local, or tribal governments
adopt new, unfunded regulatory obligations of, or increase expenditures
by the private sector by, more than $100 million in any year.
F. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this proposed rule in accordance with Executive Order
13175 (65 FR 67249) and determined that it does not have ``tribal
implications'' as defined in that order. As proposed, the rule does not
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes.
G. Legal Considerations
The purpose of the Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.) is ``to assure so far as possible every working man
and woman in the nation safe and healthful working conditions and to
preserve our human resources.'' 29 U.S.C. 651(b). To achieve this goal,
Congress authorized the Secretary of Labor to promulgate and enforce
occupational safety and health standards. 29 U.S.C. 654(b), 655(b). A
safety or health standard is a standard ``which requires conditions, or
the adoption or use of one or more practices, means, methods,
operations, or processes, reasonably necessary or appropriate to
provide safe or healthful employment or places of employment.'' 29
U.S.C. 652(8). A standard is reasonably necessary or appropriate within
the meaning of Section 652(8) when a significant risk of material harm
exists in the workplace and the standard would substantially reduce or
eliminate that workplace risk. See Industrial Union Department, AFL-CIO
v. American Petroleum Institute, 448 U.S. 607 (1980). In the beryllium
rulemaking, OSHA made such a determination with respect to beryllium
exposure in general industry (82 FR at 2479). This proposed rule does
not impose any new requirements on employers. Therefore, this proposal
does not require an additional significant risk finding. See Edison
Electric Institute v. OSHA, 849 F.2d 611, 620 (D.C. Cir. 1988).
In addition to materially reducing a significant risk, a health
standard must be technologically and economically feasible. United
Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1251 (D.C.
Cir. 1980) (OSHA must reduce risk ``as far as it c[an] within the
limits of [technological and economic] feasibility.'') A standard is
technologically feasible when the protective measures it requires
already exist, when available technology can bring the protective
measures into existence, or when that technology is reasonably likely
to develop. See American Textile Mfrs. Institute v. OSHA, 452 U.S. 490,
513 (1981); American Iron and Steel Institute v. OSHA, 939 F.2d 975,
980 (D.C. Cir. 1991). And a rule is economically feasible if it does
not ``threaten massive dislocation to, or imperil the existence of,
[an] industry.'' United Steelworkers, 647 F.2d at 1265 (internal
citations and quotation marks omitted). In the 2017 FEA for the
beryllium standard, OSHA found the standard to be technologically and
economically feasible (82 FR at 2471). This proposed rule would be
technologically and economically feasible as well because it would not
require employers to implement any additional protective measures and
would not impose any additional costs on employers.
List of Subjects in 29 CFR Part 1910
Beryllium, Occupational safety and health.
Signed at Washington, DC, on May 25, 2018.
Loren Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
Amendments to Standards
For the reasons stated in the preamble of this proposed rule, OSHA
proposes to amend 29 CFR part 1910 as follows:
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
Subpart Z--Toxic and Hazardous Substances
0
1. The authority citation for subpart Z of 29 CFR part 1910 is revised
to read as follows:
Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor's Order
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90
(55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR
65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR
3912); 29 CFR part 1911; and 5 U.S.C. 553, as applicable.
Section 1910.1030 also issued under Public Law 106-430, 114
Stat. 1901.
Section 1910.1201 also issued under 40 U.S.C. 5101 et seq.
0
2. Amend Sec. 1910.1024 by revising paragraph (o)(2) to read as
follows:
Sec. 1910.1024 Beryllium.
* * * * *
(o) * * *
(2) Compliance dates. (i) Obligations contained in paragraphs (c),
(d), (g), (k), and (l) of this standard: March 12, 2018;
(ii) Change rooms and showers required by paragraph (i) of this
standard: March 11, 2019;
(iii) Engineering controls required by paragraph (f) of this
standard: March 10, 2020; and
(iv) All other obligations of this standard: December 12, 2018.
* * * * *
[FR Doc. 2018-11643 Filed 5-31-18; 8:45 am]
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