[Federal Register Volume 83, Number 154 (Thursday, August 9, 2018)]
[Rules and Regulations]
[Pages 39351-39360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17106]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket ID OSHA-H005C-2006-0870]
RIN 1218-AD19
Limited Extension of Select Compliance Dates for Occupational
Exposure to Beryllium in General Industry
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: With this final rule, OSHA is extending the compliance date
for certain ancillary requirements of the general industry beryllium
standard to December 12, 2018. This standard protects workers from the
hazards of beryllium exposure. OSHA has determined that this final rule
will maintain essential safety and health protections for workers while
OSHA prepares a Notice of Proposed Rulemaking (NPRM) to clarify
specific provisions of the beryllium standard in accordance with a
settlement agreement entered into with stakeholders. The December 12,
2018, compliance date affects only certain ancillary provisions, i.e.,
methods of compliance, beryllium work areas, regulated areas, personal
protective clothing and equipment, hygiene areas and practices,
housekeeping, communication of hazards, and recordkeeping.
DATES: This rule is effective August 9, 2018.
ADDRESSES: For purposes of 28 U.S.C. 2112(a), OSHA designates Edmund
Baird, Acting Associate Solicitor of Labor for Occupational Safety and
Health, to receive petitions for review of the final rule. Contact the
Acting Associate Solicitor at the Office of the Solicitor, Room S-4004,
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC
20210; telephone: (202) 693-5445.
Citation Method
In the docket for the beryllium rulemaking, found at http://www.regulations.gov, every submission was assigned a document
identification (ID) number that consists of the docket number (OSHA-
H005C-2006-0870) followed by an additional four-digit number. For
example, the document ID number for OSHA's Preliminary Economic
Analysis and Initial Regulatory Flexibility Analysis is OSHA-H005C-
2006-0870-0426. Some document ID numbers include one or more
attachments, such as the National Institute for Occupational Safety and
Health (NIOSH) prehearing submission (see Document ID OSHA-H005C-2006-
0870-1671).
When citing exhibits in the docket, OSHA includes the term
``Document ID'' followed by the last four digits of the document ID
number, the attachment number or other attachment identifier, if
applicable, and page numbers (designated ``p.'' or ``Tr.'' for pages
from a hearing transcript). In a citation that contains two or more
document ID numbers, the document ID numbers are separated by
semicolons.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Mr. Frank Meilinger, OSHA Office of
Communications; telephone: (202) 693-1999; email:
meilinger.francis2@dol.gov.
General information and technical inquiries: Mr. William Perry or
Ms. Maureen Ruskin, Directorate of Standards and Guidance; telephone:
(202) 693-1950; email: perry.bill@dol.gov.
Copies of this Federal Register document and news releases:
Electronic copies of these documents are available at OSHA's web page
at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
I. Explanation of Regulatory Action
A. Introduction
This final rule extends the compliance date to December 12, 2018,
for certain ancillary provisions of the beryllium rule for general
industry, specifically provisions related to methods of compliance,
beryllium work areas, regulated areas, personal protective clothing and
equipment, hygiene areas and practices, housekeeping, communication of
hazards, and recordkeeping. This rule does not affect the new
permissible exposure limits (PELs) for general industry, construction,
and shipyards or the general industry provisions for exposure
assessment, respiratory protection, medical surveillance, and medical
removal, which OSHA began enforcing on May 11, 2018. This final rule
also does not affect the March 11, 2019, compliance date for the
provisions on change rooms and showers in paragraph (i) (hygiene areas
and practices) or the March 10, 2020, compliance date for
implementation of the engineering controls required by paragraph (f)
(methods of compliance). Finally, this rule does not affect the
applicability of paragraph (a) (scope and application) or paragraph (b)
(definitions). (Document ID 2156). OSHA has determined that this final
rule will maintain essential safety and health protections for workers
while OSHA prepares a Notice of Proposed Rulemaking (NPRM) to clarify
specific provisions of the beryllium standard in accordance with a
settlement agreement entered into with stakeholders. The revisions that
OSHA plans to propose are designed to enhance worker protections by
ensuring that the rule is well-understood and compliance is simple and
straightforward.
B. Summary of Economic Impact
OSHA has determined that this final rule is not economically
significant. The rule revises 29 CFR 1910.1024(o)(2) to extend the
deadline for compliance with certain provisions of the general industry
beryllium standard until December 12, 2018. OSHA's final economic
analysis shows that this compliance date extension will result in a net
cost savings for the affected industries. At a 3 percent discount rate
over 10 years, the extension will result in net annual cost savings of
$0.76 million per year; at a discount rate of 7 percent over 10 years,
the net annual cost savings is $1.73 million per year. When the
Department uses a perpetual time horizon, the annualized cost savings
of the final rule is $1.65 million with a 7 percent discount rate. The
detailed final economic analysis, which includes more information on
OSHA's cost/cost savings estimates for this final rule, can be found in
the ``Agency Determinations'' section of this preamble. The rule is
also an Executive Order (E.O.) 13771 deregulatory action.
C. Regulatory Background
OSHA published a Notice of Proposed Rulemaking (NPRM) for
occupational exposure to beryllium in the Federal Register on August 7,
2015. (80 FR 47566). In the NPRM, the agency made a preliminary
determination that employees exposed to beryllium and beryllium
compounds at the previous PEL faced a significant risk to their health
and that promulgating the NPRM's proposed standard would substantially
reduce that risk. The NPRM invited interested stakeholders to submit
comments on a variety of issues.
OSHA held a public hearing in Washington, DC, on March 21 and 22,
2016. The agency heard testimony from a number of organizations,
including public health groups, industry representatives, and labor
unions. Following the hearing, participants had an opportunity to
submit additional evidence and data, as well as final briefs,
arguments, and summations (Document ID 1756, Tr. 326).
On January 9, 2017, after considering the entire record, OSHA
issued a final rule with separate standards for general industry,
shipyards, and construction, in order to tailor requirements to the
circumstances found in these sectors. See 82 FR 2470. The general
industry standard became effective on March 10, 2017, and the
compliance date for most of the standard's provisions was March 12,
2018. However, on March 2, 2018, OSHA issued a memorandum stating that
no provisions of the general industry standard would be enforced until
May 11, 2018.\1\ Two subsequent enforcement delays followed--the first,
on May 9, 2018, delayed enforcement until June 25, 2018, of some of the
general industry standard's ancillary provisions (related to methods of
compliance, beryllium work areas, regulated areas, personal protective
clothing and equipment, hygiene areas and practices, housekeeping,
communication of hazards, and recordkeeping). The second delay, on June
21, 2018, postponed enforcement of those provisions until August 9,
2018.
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\1\ On May 7, 2018, OSHA published a Direct Final Rule (DFR)
which became effective July 6, 2018. (83 FR 19936; 83 FR 31045). The
DFR clarified the definitions of ``beryllium work area,''
``emergency,'' ``dermal contact,'' and ``beryllium contamination.''
It also clarified OSHA's intent with respect to provisions for
disposal and recycling of materials that contain or are contaminated
with beryllium, and with respect to provisions that the agency
intends to apply only where skin can be exposed to materials
containing at least 0.1 percent beryllium by weight.
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Following promulgation of the final rule in January 2017, several
general industry employers, including Materion Corporation
(``Materion''), challenged the rule in federal court. As part of a
settlement agreement with Materion,\2\ OSHA is planning to propose
revisions to certain provisions in the general industry standard and to
rely on its de minimis policy while the rulemaking is pending so that
employers may comply with the proposed revisions to the standard
without risk of a citation.\3\ The revisions OSHA plans to propose
under the settlement agreement are generally designed to clarify the
standard in response to stakeholder questions or to simplify
compliance, while in all cases maintaining a high degree of protection
from the adverse health effects of beryllium exposure (Document ID
2156).
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\2\ The Materion settlement agreement can be viewed on
regulations.gov (Document ID 2156): https://www.regulations.gov/document?D=OSHA-H005C-2006-0870-2156.
\3\ The OSH Act allows the Secretary of Labor to prescribe
procedures for issuing notices instead of citations for ``de minimis
violations'' that have no direct or immediate relationship to safety
or health. 29 U.S.C. 658(a). OSHA's de minimis policy is set forth
in its Field Operations Manual, available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-160.pdf. OSHA considers it a de
minimis condition when an employer ``complies with a proposed OSHA
standard or amendment or a consensus standard rather than with the
standard in effect at the time of the inspection and the employer's
action clearly provides equal or greater employee protection.'' De
minimis conditions do not result in citations or penalties. See 29
CFR 1903.15(c) (``Penalties shall not be proposed for de minimis
violations which have no direct or immediate relationship to safety
or health.''); See Employer Rights and Responsibilities Following a
Federal OSHA Inspection, https://www.osha.gov/Publications/osha3000.pdf.
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D. Summary of Public Comments and Explanation of Final Action
On June 1, 2018, OSHA published a proposed rule to extend the
compliance
date to December 12, 2018 for certain ancillary requirements of the
general industry beryllium standard. (83 FR 25536). OSHA explained that
the proposed extension would give the agency time to prepare and
publish a planned NPRM to amend the general industry standard before
employers would be required to comply with certain ancillary provisions
affected by that NPRM. That in turn would allow employers to comply
with the proposed provisions without risk of a citation until any such
changes are finalized (Document ID 2156).
In the proposal, OSHA requested comments from the public on both
the duration and scope of the proposed compliance date extension (83 FR
25539). OSHA asked commenters to include a rationale for any concerns
they had with the proposal, as well as for any alternatives they
suggested. OSHA also requested comments on the ``Agency
Determinations'' section of the proposal, including the preliminary
economic analysis and other regulatory effects on employers and
workers.
OSHA received ten comments in response to the proposal (Document
IDs 2159-2168). The comments generally focused on three issues arising
from the proposed extension: (1) Whether to extend the compliance date,
(2) the scope of any extension, and (3) the appropriate duration of any
extension. Below we examine these three issues, in that order--by
summarizing the comments and then explaining the agency's
determinations based on the record as a whole. We then address two
miscellaneous comments.
1. Extension of the Compliance Date for Certain Ancillary Provisions in
the General Industry Standard
Five commenters supported the agency's proposed extension of the
compliance date for ancillary provisions affected by OSHA's
forthcoming, substantive NPRM. (See Document ID 2161; 2165-2168). For
example, Century Aluminum Company stated that ``the affected portions
of the Standard should be delayed to allow OSHA time to prepare and
publish the substantive proposed rule so that employers do not take
unnecessary and costly measures.'' (Document ID 2165, p.1). It added
that the proposed delay would also limit confusion among employers and
other stakeholders. (Document ID 2165, p.1). Materion similarly
observed that the proposed extension would address the concern that
beginning enforcement of provisions affected by the NPRM could result
in employer confusion or improper implementation of the relevant
provisions of the rule. (Document ID 2161, p.2). Airborn Inc., Mead
Metals, Inc., and the National Association of Manufacturers (NAM)
supported Materion's comments and registered their own support for the
extension. (Document ID 2166, p.1; 2167, p.1; 2168, pp.1-2). These
three stakeholders agreed that an extension is ``necessary to give OSHA
enough time to draft and publish'' the forthcoming, substantive NPRM.
(Document ID 2166, p.1; 2167, p.1; 2168, p.1). NAM added that the
proposed extension was ``another positive step toward a more effective
general industry standard for the benefit of workers.'' (Document ID
2168, p.2). NAM also expressed its appreciation for ``OSHA's
recognition of employers' reasonable and practical concerns regarding
compliance in anticipation of [the forthcoming, substantive NPRM].''
(Document ID 2168, p.2).
Four other commenters, the United Steelworkers (USW), Public
Citizen, UNITE HERE! International Union (UNITE HERE), and the National
Employment Law Project (NELP), opposed the proposed extension.
(Document ID 2160; 2162-2164). These commenters argued that the
extension would be unnecessary and unjustified, and would delay the
implementation of important protections for workers. (See, e.g.,
Document ID 2160, pp. 1-2). For example, Public Citizen maintained that
``[e]xpeditious implementation of the ancillary provisions in general
industry is absolutely necessary to enhance the benefits of the newly
adopted PEL, ultimately providing another level of protection in
occupational settings.'' (Document ID 2162, p.3). It argued that
delaying implementation would allow employers to continue to expose
workers to unsafe levels of beryllium, ensuring ``the occurrence of
even more cases of beryllium sensitization, chronic beryllium disease,
. . . . lung cancer,'' and other adverse health effects. (Document ID
2162, p.3).
OSHA understands Public Citizen's concerns; the agency's goal is to
protect the health and safety of workers. That is why OSHA has narrowly
tailored the scope of the compliance date extension to cover only
provisions that will be affected by the forthcoming, substantive NPRM.
OSHA is enforcing, and will continue to enforce, many of the provisions
that provide critical protection to general industry employees. This
final rule does not affect critical worker protections afforded by
enforcement of the revised lower PEL, the new short-term exposure limit
(STEL), and requirements for exposure assessment, respiratory
protection, medical surveillance, and medical removal.
Moreover, in adopting this final rule, OSHA recognizes that the
goal of worker protection can be frustrated where employers do not
clearly understand OSHA's requirements or how to implement them. OSHA
appreciates the concerns of those stakeholders who note that, until
OSHA releases its planned NPRM, employers may lack clarity regarding
how to implement and comply with the beryllium standard. OSHA has
determined that it would be undesirable, for both the agency and those
it regulates, to begin enforcement of certain ancillary provisions of
the standard that will likely be affected by the upcoming rulemaking--a
scenario that could result in employers taking unnecessary measures to
comply with provisions to which OSHA intends to propose clarifications.
NELP and Public Citizen also asserted that the proposed compliance-
date extension conflicted with OSHA's finding that a comprehensive
standard is needed to protect workers exposed to beryllium. (Document
ID 2162; 2163). OSHA disagrees with that assertion that this extension
is in conflict with OSHA's findings. OSHA believes that a comprehensive
standard is critically important for the protection of workers exposed
to beryllium in general industry settings. However, the benefits of a
comprehensive standard may not be fully realized where employers do not
clearly understand, and have trouble implementing, its requirements.
OSHA finds that this limited, short-term extension of the compliance
date for certain ancillary requirements of the standard will give the
agency the time necessary to ensure that employers have clear direction
on how to protect workers exposed to beryllium. Additionally, as noted
previously, OSHA will continue to maintain essential safety and health
protections for workers through ongoing enforcement of many of the
beryllium standard's key provisions. Enforcement of other OSHA
standards, such as the Hazard Communication Standard (29 CFR 1910.1200)
and Access to Employee Exposure and Medical Records (29 CFR 1910.1020)
will also provide other important protections for workers in general
industry. In particular, employers are, and will remain, obligated to
label hazardous chemicals containing beryllium, ensure that safety data
sheets are readily available, and train workers on the hazards of
beryllium in accordance with the Hazard Communication Standard. OSHA
encourages employers to review their hazard communication programs,
employee training, and other hazard communication practices (such as
workplace labeling) to ensure continued compliance with the Hazard
Communication Standard.
USW and UNITE HERE also questioned OSHA's justification for the
proposed extension of compliance dates. USW objected to OSHA's
preliminary determination that beginning enforcement of the ancillary
provisions identified in the proposal before publication of the
substantive NPRM could result in employer confusion or improper
implementation of the relevant provisions of the rule. (Document ID
2160, p.2). USW argued that employers could avoid confusion by
complying with the revisions that are identified in the settlement
agreement. (Document ID 2160, p.2). In addition, USW and UNITE HERE
claimed that OSHA proposed this extension to ``demonstrate that it has
taken deregulatory action.'' (Document ID 2160, p.2; 2164).
OSHA does not agree with the USW that this extension of compliance
dates is unnecessary because employers can rely on the regulatory
revisions identified in the settlement agreement before publication of
the substantive NPRM. The settlement agreement contains only a redlined
version of the relevant regulatory text. It does not include a full
summary and explanation of the revisions, in which OSHA explains the
meaning of the proposed revisions to the regulatory text and, in some
cases, provides further information and examples to aid compliance. For
example, OSHA is planning to propose changes to paragraph (j)(3), to
address reuse of beryllium-containing materials in addition to disposal
and recycling, because in some cases materials may be directly reused
without being recycled. In the summary and explanation for the proposed
rule, OSHA will explain the intended meaning of the term ``reuse'' and
the circumstances under which the cleaning and bagging requirements
included in paragraph (j)(3) would apply to the reuse of materials that
contain beryllium.
OSHA also disagrees with USW and UNITE HERE's characterization of
the rationale for this extension. Although OSHA noted in the proposal
that the proposed extension was ``expected to be an . . . E.O.[ ] 13771
deregulatory action,'' it included that statement to carry out its
obligations under E.O. 13771, not to justify the rulemaking. As stated
above, the reason for this rulemaking is to provide OSHA sufficient
time to promulgate proposed clarifications to the general industry
standard, so that employers can easily understand and properly
implement the standard in order to keep workers healthy and safe.
Based on the record as a whole, OSHA finds the arguments in favor
of the proposed extension of compliance dates to be more persuasive
than those against the proposal. Therefore, the agency has decided to
adopt the proposed extension of compliance dates to allow time for the
preparation and publication of the planned, substantive NPRM.
2. Scope of the Extension
Having determined that an extension of the compliance date for
certain ancillary provisions in the beryllium standard for general
industry is appropriate, OSHA next addresses comments regarding which
provisions will be included in the extension. In the NPRM, OSHA
proposed extending the compliance date for the following provisions:
Beryllium work areas and regulated areas (paragraph (e)), written
exposure control plans (paragraph (f)(1)), personal protective clothing
and equipment (paragraph (h)), hygiene areas and practices (paragraph
(i) except for change rooms and showers), housekeeping (paragraph (j)),
communication of hazards (paragraph (m)), and recordkeeping (paragraph
(n)). OSHA requested comments on the proposed scope of the extension.
Several commenters objected to the scope of the proposed
compliance-date extension. For example, USW asserted that the
underlying settlement agreement only ``affects beryllium products whose
content is less [than] 1% by weight, but which does not generate
exposures above the PEL.'' (Document ID 2160, p. 1). Therefore, USW
argued, ``[t]here is no basis for staying ancillary provisions of the
standard in workplaces where exposures to beryllium are above the
PEL.'' (Document ID 2160, pp. 1-2). UNITE HERE also asserted that the
proposed extension of compliance dates should be limited to provisions
that OSHA intends to change. (Document ID 2164). It further argued that
``there is no justification to delay any provision of the standard to
the extent that it would regulate exposures above the PEL.'' (Document
ID 2164). NELP similarly commented that the proposal was ``broad and
needlessly pushes back compliance dates of important worker protections
to a highly toxic substance.'' (Document ID 2163, p.1).
Century Aluminum, however, argued that OSHA should not extend the
compliance date for only certain portions of affected paragraphs, as
proposed by some of the other commenters. Beyond making it clear that
the compliance dates for engineering and work practice controls (March
10, 2020) and change rooms and showers (March 11, 2019) remain
unchanged, Century Aluminum asserted that differentiating by portions
of affected paragraphs would lead to substantial confusion among
employers and other stakeholders.\4\
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\4\ Materion commented that the proposed extension of compliance
dates did not cover all of the provisions that could be affected by
the forthcoming, substantive NPRM. (Document ID 2161, p.1).
Specifically, Materion noted that the NPRM could also affect the
requirements for medical surveillance and change rooms. (Document ID
2161, p.1 (citing Document ID 2156, Appendix B)). However, Materion
did not ask OSHA to make any changes to the scope of the extension
based on its comment. Rather, its comment appeared to serve as a
recommendation to other employers to ``take careful note of the
proposed changes identified in the settlement agreement, and to take
them into account when implementing their compliance programs for
medical surveillance and change rooms.'' (Document ID 2161, p.1).
OSHA notes that, until the NPRM is published, employers may comply
with the medical surveillance provisions as clarified by the
definitions of ``CBD diagnostic center,'' ``chronic beryllium
disease,'' and ``confirmed positive'' that OSHA has agreed to
propose, which are available in the docket (Document ID 2156) and in
OSHA's interim enforcement guidance (https://www.osha.gov/laws-regs/standardinterpretations/2018-05-09).
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OSHA agrees with Century Aluminum's assessment that an extension of
compliance dates that differentiated between individual subparagraphs
of the affected ancillary provisions, as suggested by USW and UNITE
HERE, would create substantial confusion.\5\ In addition, OSHA does not
find that the extension should be limited to only those situations
where beryllium exposures do not exceed the PEL. Contrary to USW's
assertion, the substantive changes OSHA intends to propose to the
beryllium standard for general industry do apply to processes that
generate exposures above the PEL, and they are not limited to products
whose beryllium content is less than one percent by weight. For
example, changes to provisions for methods of compliance, personal
protective clothing and equipment, housekeeping, and hygiene areas and
practices involve all beryllium-containing materials where exposures
may occur. Therefore,
OSHA's rationale for the extension of compliance dates applies to all
general industry workplaces within the scope of the beryllium standard,
including those where beryllium exposures may exceed the PEL. Finally,
as to UNITE HERE's comment that the extension should be limited to
provisions that OSHA intends to change in the final standard, OSHA has
reexamined each of the provisions covered by the proposed extension and
confirmed that the final extension of compliance dates applies only to
paragraphs affected by the upcoming, substantive NPRM.
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\5\ OSHA recognizes that three paragraphs, i.e., the paragraphs
related to change rooms and showers in paragraph (i) and the
requirement in paragraph (f)(2) for the implementation for
engineering controls, have different compliance dates than those set
for other paragraphs in paragraphs (i) and (f). However, this is a
function of the way the compliance date provisions were structured
in the January 9, 2017, final rule, and those dates were set based
on specific findings made by the agency in that rulemaking. The
agency believes employers have had ample notice of when the agency
intends to begin enforcement of these particular provisions.
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After considering these comments, OSHA has decided to retain the
scope of the extension as proposed. The extension of compliance dates,
therefore, will apply to the following provisions: Beryllium work areas
and regulated areas (paragraph (e)), written exposure control plans
(paragraph (f)(1)), personal protective clothing and equipment
(paragraph (h)), hygiene areas and practices (paragraph (i) except for
change rooms and showers), housekeeping (paragraph (j)), communication
of hazards (paragraph (m)), and recordkeeping (paragraph (n)).
3. Duration of the Extension
Having determined that it is appropriate to extend the compliance
date for certain ancillary provisions in the general industry beryllium
standard, the remaining issue is the duration of the extension. In the
NPRM, OSHA proposed extending the relevant compliance date until
December 12, 2018. OSHA requested comments on the duration of the
extension.
Very few commenters expressly opined on the duration of the
proposed compliance date extension, and those who did disagreed as to
whether a longer or shorter extension was appropriate. For example,
Century Aluminum asked OSHA to consider extending the relevant
compliance date for an additional three months, to March 11, 2019.
(Document ID 2165, pp. 1-2). It argued that ``[a]n additional three
months would give OSHA the time to receive comments on the substantive
proposed rule and publish a final rule.'' (Document ID 2165, p.1). It
further stated that a longer extension would prevent confusion and
unnecessary costs:
A delay until the substantive rulemaking is completed would also
prevent a situation where employers comply with the de minimis
policy, only to have to change practices if the final rule does not
adopt all of the revisions in the proposed rule. The costs of such a
midstream about-face could be significant. Moreover, aligning the
compliance date with March 11, 2019, which is the compliance date
for the change rooms and showers required by paragraph (i) of the
Standard, would simplify compliance efforts and limit confusion
among affected entities. Finally, the additional few months would
allow state plans time to consider whether to adopt any revisions
OSHA makes to the Standard without causing significant disruption in
their respective states.
(Document ID 2165, p.2). USW and UNITE HERE, on the other hand,
recommended that the proposed extension continue until thirty days
after the substantive NPRM is issued or December 12, 2018, whichever
comes first. USW maintained that the potentially shorter extension
would allow time for employers to conform their practices to the
content of the NPRM, while providing workers with necessary protections
as soon as possible.
After considering these comments, OSHA is not persuaded that it
should alter the duration of the proposed extension. Although OSHA
appreciates Century Aluminum's points, the agency must balance
arguments in favor of a longer extension against the concerns raised by
commenters, such as USW, that an unnecessarily lengthy extension could
deny general industry workers certain protections afforded to them
under the affected ancillary provisions. Moreover, although OSHA
understands Century Aluminum's concern about the potential increase in
costs that could result if the provisions adopted as a result of the
planned substantive rulemaking do not mirror those proposed in the
substantive NPRM, the agency cannot, at this time, estimate with much
certainty when any final rule will be promulgated.\6\ OSHA also rejects
USW and UNITE HERE's call for compliance dates based on the publication
of the substantive NPRM; a timeline based on a currently uncertain date
would be more difficult and confusing for employers and workers. The
agency finds that the proposed compliance date of December 12, 2018,
appropriately balances the concerns raised by stakeholders, will
provide the agency sufficient time to draft and publish the NPRM, and
will give employers sufficient time to comply. Therefore, OSHA has
decided to extend the compliance date for the identified provisions
until December 12, 2018, as proposed.
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\6\ Although not suggested by Century Aluminum, OSHA also notes
that an indefinite extension of compliance deadlines, i.e., a
compliance date determined by the date the substantive rulemaking is
completed, is likely to result in greater, not less, confusion.
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4. Miscellaneous Comments
OSHA also received two comments that did not directly relate to the
proposed extension of compliance dates. The first, from Materion, is
related to a statement the agency made in the proposal. (Document ID
2161, p.2). Specifically, OSHA stated that it ``expects to publish the
planned, substantive NPRM well in advance of the compliance dates'' for
change rooms and showers (March 11, 2019) and engineering controls
(March 10, 2020). Materion maintained that ``it is reasonable and
necessary for OSHA to not only publish the NPRM, but complete its final
changes to the General Industry Standard for beryllium well ahead of
March 11, 2019, since the revisions OSHA plans to propose are primarily
clarifying or simplifying in nature . . . and designed to enhance
worker protections by ensuring that the rule is well-understood and
compliance is simple and straightforward.'' (Document ID 2161, p.2
(citing Document ID 2156)). Materion further commented that
``[e]mployees will benefit most by completion of all changes as soon as
possible, and certainly before early 2019.'' (Document ID 2161, p.2).
OSHA understands Materion's concern, and agrees that prompt
finalization of any substantive revisions to the general industry
standard for beryllium would be ideal. Therefore, the agency will
proceed with the substantive rulemaking as expeditiously as possible.
However, OSHA will also need to ensure that stakeholders have a
meaningful opportunity to comment on the forthcoming proposal and that
the agency has adequate time to consider and address stakeholder
comments. Consequently, at this time the agency does not have a
specific target date for conclusion of the substantive rulemaking.
The second comment that was not directly related to the proposed
extension of compliance dates was submitted by an anonymous commenter,
who indicated strong support for the beryllium rule generally.
(Document ID 2159). The commenter submitted summary statistics on
relationships between beryllium exposure and the prevalence of
beryllium sensitization and chronic beryllium disease in a cohort at a
beryllium precision machining facility and stated that the results
support the control of workplace beryllium exposures. However, this
commenter did not address how the data or conclusions provided related
to the proposed extension of compliance dates
or otherwise offer any comments on the specific terms of the proposed
extension. To the extent that this commenter intended to argue that the
proposed extension of compliance dates would have a detrimental impact
on worker health, that comment is addressed above in response to
similar concerns expressed by USW, Public Citizen, UNITE HERE, and
NELP.
II. Agency Determinations
A. Final Economic Analysis and Regulatory Flexibility Certification
Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5
U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C.
1532(a)) require that OSHA estimate the benefits, costs, and net
benefits of regulations, and analyze the effects of certain rules that
OSHA promulgates. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility.
This final rule is not an ``economically significant regulatory
action'' under E.O. 12866 or UMRA, or a ``major rule'' under the
Congressional Review Act (5 U.S.C. 801 et seq.). Neither the benefits
nor the costs of this final rule would exceed $100 million in any given
year. This final rule to extend the compliance date for certain
ancillary provisions in the beryllium standard would result in cost
savings. Cost savings arise in this context because a delay in incurred
costs for employers would allow them to invest the funds (and earn an
expected return at the going interest rate) that would otherwise have
been spent to comply with the beryllium standard. OSHA did not receive
any comments on the preliminary economic analysis OSHA prepared for the
proposal.
At a discount rate of 3 percent, this final compliance-date
extension yields annualized cost savings of $0.76 million per year for
10 years. At a discount rate of 7 percent, this final rule yields an
annualized cost savings of $1.73 million per year for 10 years. When
the Department uses a perpetual time horizon to allow for cost
comparisons under E.O. 13771 (82 FR 9339, Jan. 30, 2017), the
annualized cost savings of this final compliance date extension are
$1.65 million at a discount rate of 7 percent.
1. Changes to the Baseline: Updating to 2017 Dollars and Removing
Familiarization Costs; Discussion of Overhead Costs
More than one year has elapsed since promulgation of the beryllium
standards on January 9, 2017, so OSHA has updated the projected costs
for general industry contained in the final economic analysis that
accompanied the rule from 2015 to 2017 dollars, using the latest
Occupational Employment Statistics (OES) wage data (for 2016) and
inflating them to 2017 dollars. Additionally, although familiarization
costs were included in the cost estimates developed in the 2017
economic analysis, OSHA expects that those costs have already been
incurred by affected employers, and is excluding them from its analysis
of the cost savings associated with this extension of compliance dates.
Thus, baseline costs for this final economic analysis (FEA) are the
projected costs from the 2017 economic analysis, updated to 2017
dollars, less familiarization costs.
OSHA notes that it did not include an overhead labor cost in the
2017 analysis, and has not accounted for such costs in this FEA. There
is not one broadly accepted overhead rate, and the use of overhead to
estimate the marginal costs of labor raises a number of issues that
should be addressed before applying overhead costs to analyze the cost
implications of any specific regulation. There are several ways to look
at the cost elements that fit the definition of overhead, and there is
a range of overhead estimates currently used within the federal
government--for example, the Environmental Protection Agency has used
17 percent,\7\ and government contractors have reportedly used 50
percent for on-site (i.e., company site) overhead.\8\ Some overhead
costs, such as advertising and marketing, may be more closely
correlated with output than with labor. Other overhead costs vary with
the number of new employees. For example, rent or payroll processing
costs may change little with the addition of 1 employee in a 500-
employee firm, but may change substantially with the addition of 100
employees. If an employer is able to rearrange current employees'
duties to implement a rule, then the marginal share of overhead costs,
such as rent, insurance, and major office equipment (e.g., computers,
printers, copiers), would be very difficult to measure with accuracy.
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\7\ Cody Rice, U.S. Environmental Protection Agency, ``Wage
Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002 (document ID 2025). This analysis itself
was based on a survey of several large chemical manufacturing
plants: Heiden Associates, Final Report: A Study of Industry
Compliance Costs Under the Final Comprehensive Assessment
Information Rule, Prepared for the Chemical Manufacturers
Association, December 14, 1989.
\8\ Grant Thornton LLP, 2017 Government Contractor Survey,
https://www.grantthornton.com/-/media/content-page-files/public-sector/pdfs/surveys/2018/2017-government-contractor-survey.
According to Grant Thornton's 2017 Government Contractor Survey, on-
site rates are generally higher than off-site rates, because the on-
site overhead pool includes the facility-related expenses incurred
by the company to house the employee, while no such expenses are
incurred or allocated to the labor costs of direct charging
personnel who work at the customer site.
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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 final rule would
increase to approximately $0.82 million per year, at a discount rate of
3 percent, or to approximately $1.87 million per year, at a discount
rate of 7 percent.\9\ The addition of 17-percent overhead on base wages
would therefore increase cost savings by approximately 8 percent above
the primary estimate at either discount rate.
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\9\ OSHA used an overhead rate of 17 percent on base wages in a
sensitivity analysis in the final economic analysis (OSHA-2010-0034-
4247, p. VII-65) in support of the March 25, 2016, final respirable
crystalline silica standards (81 FR 16286) and in the preliminary
economic analysis in support of the June 27, 2017, beryllium
proposal for the construction and shipyard sectors (82 FR 29201).
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2. Changes to the Standard: Nine-Month Extension of the Compliance Date
for Some Ancillary Provisions
The general industry beryllium standard went into effect on May 20,
2017, with most compliance obligations beginning on March 12, 2018.
OSHA is finalizing the extension of the compliance date for specific
provisions until December 12, 2018. The compliance date for the updated
PELs, as well as for the exposure assessment, respiratory protection,
medical surveillance, and medical removal requirements, and for
provisions for which the standard already establishes compliance dates
in 2019 and 2020, do not change as a result of this rule. The
applicability of the scope and application paragraph and the
definitions also do not change as a result of this rule, except that
employers may comply with the definitions of ``CBD diagnostic center,''
``chronic beryllium disease,'' and ``confirmed positive'' that will be
proposed in the later substantive rulemaking NPRM (Document ID 2156).
The purpose of this final rule is to provide time for OSHA to issue a
planned NPRM that will affect the parts of the standard that are
covered by this compliance-date extension before that compliance date
is reached, so that OSHA may rely on its de minimis policy and
employers may
comply with the proposed provisions without risk of a citation.
OSHA estimated the cost savings of the final rule relative to
baseline costs, where baseline costs reflect the costs of compliance
without the final rule's changes to the compliance date. OSHA
calculated the cost savings by lagging the first-year costs for the
affected provisions by nine months and then calculating the present
value of the delayed costs over the 10 years following the new
compliance date. Annualizing the present value of cost savings over ten
years, the result is an annualized cost savings of $0.76 million per
year at a discount rate of 3 percent, or $1.73 million per year at a
discount rate of 7 percent. When the Department uses a perpetual time
horizon to allow for cost comparisons under E.O. 13771, the annualized
cost savings of this compliance date extension is $1.65 million at a
discount rate of 7 percent.
The undiscounted cost savings by provision and year are presented
below in Table 1. As shown in Table 1, and described elsewhere in this
final rule, the cost savings described in this FEA reflect savings only
for provisions covered by the compliance date extension. OSHA estimated
no cost savings for the PELs, exposure assessment, respiratory
protection, medical surveillance, or medical removal provisions (as
they are not covered by the extension), or for any provisions for which
the rule already establishes compliance dates in 2019 (change rooms/
showers) or 2020 (engineering controls).\10\ The cost savings by year
and discount rate are shown below in Table 2.
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\10\ Note that the labor costs associated with time spent
changing clothes are generally triggered by wearing personal
protective equipment, as required by paragraph (h) of the beryllium
standard. OSHA is extending the compliance date for paragraph (h).
Thus, employers will not incur the labor costs associated with
changing time for personal protective equipment until December 12,
2018, so OSHA is generally accounting for those cost savings in this
FEA. OSHA has not accounted for any cost savings related to the use
of head covers, however. Head covers may be used to prevent
contamination of employees' hair, potentially precluding the need
for showers under paragraph (i)(3) of the standard. Because this
final rule does not extend the compliance date for showers, OSHA has
not accounted for head covers for purposes of estimating the cost
savings associated with this final rule.
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3. Economic and Technological Feasibility
In the final economic analysis for the 2017 general industry
beryllium standard, OSHA concluded that the rule was technologically
feasible. OSHA has determined that this final rule is also
technologically feasible because it does not change any of the rule's
substantive requirements, and, if adopted, would simply give employers
more time to comply with some of the rule's ancillary requirements.
Furthermore, OSHA previously concluded that the beryllium standard was
economically feasible. As this final rule does not impose any new
substantive requirements, and results in cost savings, OSHA has
concluded that the final rule is also economically feasible.
4. Effects on Benefits
The planned rulemaking to revise the general industry beryllium
standard is intended to be responsive to questions and concerns
expressed by stakeholders regarding ancillary provisions of the rule.
Safety and health programs can be ineffective if employers and other
stakeholders are unclear about OSHA requirements. Hence, by addressing
stakeholder questions and concerns, the planned rulemaking will make it
more likely that the regulated community will realize the full benefits
of the rule, as estimated in the 2017 final economic analysis. Although
it is not possible to quantify the effect of stakeholder uncertainty on
the projected benefits of the rule, OSHA believes that the short-term
loss of benefits associated with this extension of initial compliance
dates will be more than offset in the long term by the benefits
resulting from the agency's effort to clarify the rule. OSHA has
determined that this final rule will maintain essential safety and
health protections for workers.
5. Certification of No Significant Impact on a Substantial Number of
Small Entities
This final rule will result in cost savings for affected employers,
and those savings fall below levels that could be said to have a
significant positive economic impact on a substantial number of small
entities.\11\ Therefore, OSHA certifies that this final rule does not
have a significant impact on a substantial number of small entities.
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\11\ OSHA investigated whether the projected cost savings would
exceed 1 percent of revenues or 5 percent of profits for small
entities and very small entities for every industry. To determine if
this was the case, OSHA returned to its original regulatory
flexibility analysis (2017) for small entities and very small
entities. OSHA found that the cost savings of this final rule are
such a small percentage of revenues and profits for every affected
industry that OSHA's criteria would not be exceeded for any
industry.
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Table 2--Cost Savings Due to Compliance Date Extension
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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
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Total....................................... .............. .............. 287,488,264 232,856,658
Annualized--10 Years........................ .............. .............. 33,702,395 33,153,550
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Difference from Baseline................ .............. .............. -755,495 -1,725,759
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B. Paperwork Reduction Act
This final rule does not change the information collections already
approved by the Office of Management and Budget (OMB). OMB approved the
information collection request for the general industry beryllium
standard under OMB Control Number 1218-0267, with an expiration date of
April 30, 2020. OSHA received no comments on the information collection
request in response to the proposal.
C. Federalism
OSHA reviewed this final rule in accordance with the Executive
Order on Federalism (E.O. 13132, 64 FR 43255 (Aug. 10, 1999)), which
requires that Federal agencies, to the extent possible, refrain from
limiting state policy options, consult with states prior to taking any
actions that would restrict state policy options, and take such actions
only when clear constitutional authority exists and the problem is
national in scope. E.O. 13132 provides for preemption of state law only
with the expressed consent of Congress. Federal agencies must limit any
such preemption to the extent possible.
Under Section 18 of the Occupational Safety and Health Act of 1970
(OSH Act) (29 U.S.C. 651 et seq.), Congress expressly provides that
states and U.S. territories may adopt, with Federal approval, a plan
for the development and enforcement of occupational safety and health
standards. OSHA refers to such states and territories as ``State Plan
States.'' Occupational safety and health standards developed by State
Plan States must be at least as effective in providing safe and
healthful employment and places of employment as the Federal standards.
29 U.S.C. 667. Subject to these requirements, State Plan States are
free to develop and enforce under state law their own requirements for
safety and health standards.
OSHA previously concluded from its analysis that promulgation of
the beryllium standard complies with E.O. 13132 (82 FR at 2633). In
states without an OSHA-approved State Plan, this final rule limits
state policy options in the same manner as every standard promulgated
by OSHA. For State Plan States, Section 18 of the OSH Act, as noted in
the previous paragraph, permits State Plan States to develop and
enforce their own beryllium standards provided these requirements are
at least as effective in providing safe and healthful employment and
places of employment as the requirements specified in this final rule.
D. State Plans
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, State Plans must amend their
standards to reflect the new standard or amendment, or show OSHA why
such action is unnecessary, e.g., because an existing state standard
covering this area is ``at least as effective'' as the new Federal
standard or amendment (29 CFR 1953.5(a)). The state standard must be at
least as effective as the final Federal rule. State Plans must adopt
the Federal standard or complete their own standard within six months
of the promulgation date of the final Federal rule. When OSHA
promulgates a new standard or amendment that does not impose additional
or more stringent requirements than an existing standard, State Plans
do not have to amend their standards, although OSHA may encourage them
to do so. The 21 states and 1 U.S. territory with OSHA-approved
occupational safety and health plans covering the private sector and
state and local governments are: Alaska,
Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto
Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington,
and Wyoming. Connecticut, Illinois, Maine, New Jersey, New York, and
the Virgin Islands have OSHA-approved State Plans that apply to state
and local government employees only.
The new amendments to OSHA's beryllium final rule do not impose any
new requirements on employers. Accordingly, State Plans do not have to
amend their standards to extend the compliance dates for their
beryllium rules, but they may do so within the limits of this final
rule.
E. Unfunded Mandates Reform Act
When OSHA issued the final rule establishing standards for
occupational exposure to beryllium, it reviewed the rule according to
the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.)
and E.O. 13132 (64 FR 43255 (Aug. 10, 1999)). OSHA concluded that the
final rule did not meet the definition of a ``Federal intergovernmental
mandate'' under the UMRA because OSHA standards do not apply to state
or local governments except in states that voluntarily adopt State
Plans. OSHA further noted that the rule did not impose costs of over
$100 million per year on the private sector. (82 FR at 2634.)
As discussed above in Section II.A of this preamble, OSHA has
determined that this extension does not impose any costs on private-
sector employers beyond those costs already identified in the final
rule for beryllium in general industry. Because OSHA reviewed the total
costs of the beryllium rule under UMRA, no further review of those
costs is necessary. Therefore, for purposes of UMRA, OSHA certifies
that this final rule does not mandate that state, local, or tribal
governments adopt new, unfunded regulatory obligations of, or increase
expenditures by the private sector by, more than $100 million in any
year.
F. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this final rule in accordance with E.O. 13175 (65 FR
67249) and determined that it does not have ``tribal implications'' as
defined in that order. This rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian tribes.
G. Legal Considerations
The purpose of the OSH Act is ``to assure so far as possible every
working man and woman in the nation safe and healthful working
conditions and to preserve our human resources.'' 29 U.S.C. 651(b). To
achieve this goal, Congress authorized the Secretary of Labor to
promulgate and enforce occupational safety and health standards. 29
U.S.C. 654(b), 655(b). A safety or health standard is a standard
``which requires conditions, or the adoption or use of one or more
practices, means, methods, operations, or processes, reasonably
necessary or appropriate to provide safe or healthful employment or
places of employment.'' 29 U.S.C. 652(8). A standard is reasonably
necessary or appropriate within the meaning of Section 652(8) when a
significant risk of material harm exists in the workplace and the
standard would substantially reduce or eliminate that workplace risk.
See Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607
(1980). In the beryllium rulemaking, OSHA made such a determination
with respect to beryllium exposure in general industry (82 FR at 2479).
This final rule does not impose any new requirements on employers.
Therefore, this rule does not require an additional significant risk
finding. See Edison Elec. Inst. v. OSHA, 849 F.2d 611, 620 (D.C. Cir.
1988).
In addition to materially reducing a significant risk, a health
standard must be technologically and economically feasible. United
Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1251 (D.C.
Cir. 1980) (OSHA must reduce risk ``as far as it c[an] within the
limits of [technological and economic] feasibility.''). A standard is
technologically feasible when the protective measures it requires
already exist, when available technology can bring the protective
measures into existence, or when that technology is reasonably likely
to develop. See Am. Textile Mfrs. Inst. v. OSHA, 452 U.S. 490, 513
(1981); Am. Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir.
1991). And a rule is economically feasible if it does not ``threaten
massive dislocation to, or imperil the existence of, [an] industry.''
United Steelworkers, 647 F.2d at 1265 (internal citations and quotation
marks omitted). In 2017, OSHA found the beryllium standard to be
technologically and economically feasible. (82 FR at 2471). This final
rule is technologically and economically feasible as well because it
does not require employers to implement any additional protective
measures and does not impose any additional costs on employers.
List of Subjects in 29 CFR Part 1910
Beryllium, Occupational safety and health.
Signed at Washington, DC, on August 6, 2018.
Loren Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
Amendments to Standards
For the reasons stated in the preamble of this final rule, OSHA
amends 29 CFR part 1910 as follows:
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
Subpart Z--Toxic and Hazardous Substances
0
1. The authority citation for subpart Z of 29 CFR part 1910 is revised
to read as follows:
Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor's Order
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90
(55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR
65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR
3912); 29 CFR part 1911; and 5 U.S.C. 553, as applicable.
Section 1910.1030 also issued under Public Law 106-430, 114
Stat. 1901. Section 1910.1201 also issued under 40 U.S.C. 5101 et
seq.
0
2. Amend Sec. 1910.1024 by revising paragraph (o)(2) to read as
follows:
Sec. 1910.1024 Beryllium.
* * * * *
(o) * * *
(2) Compliance dates. (i) Obligations contained in paragraphs (c),
(d), (g), (k), and (l) of this standard: March 12, 2018;
(ii) Change rooms and showers required by paragraph (i) of this
standard: March 11, 2019;
(iii) Engineering controls required by paragraph (f) of this
standard: March 10, 2020; and
(iv) All other obligations of this standard: December 12, 2018.
* * * * *
[FR Doc. 2018-17106 Filed 8-8-18; 8:45 am]
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