with beryllium'' and added those terms to certain provisions in the
standard. The DFR defined those terms as follows: ``Contaminated
with beryllium and beryllium-contaminated mean contaminated with
dust, fumes, mists, or solutions containing beryllium in
concentrations greater than or equal to 0.1 percent by weight'' (83
FR at 19939).
---------------------------------------------------------------------------

    The comments received in response to the NPRM have not convinced
OSHA otherwise. Although OSHA continues to recognize the possibility
that some construction and shipyards workers could be exposed to
beryllium through activities other than abrasive blasting and welding,
the record still lacks key data about these potential additional
sources of exposure, including how often they occur, who is exposed,
the duration of the exposures, the type and extent of exposure, or any
controls that may be in place to address them. Specifically, as
discussed below, OSHA finds that the record lacks evidence that
exposures in any construction or shipyards operation would involve a
risk of dermal contact with beryllium in greater-than-trace amounts.
    As explained more fully in the Summary and Explanation for
paragraph (f), a number of commenters responded to OSHA's request for
information on any additional application groups (industries,
occupations, processes, etc.) with potential exposure to beryllium in
the construction and shipyards sectors beyond abrasive blasting and
welding operations (see 84 FR at 53922; Document ID 2222, Tr. 33-35;
44-45; 75-76; 95-96; 125-26), but their comments in many cases relied
on anecdotal or unverifiable assertions about additional exposure
sources. Some commenters submitted studies regarding operations that,
in the commenter's view, could expose employees to greater-than-trace
concentrations of beryllium at general industry facilities.\27\ But the
studies do not contain relevant exposure data, nor do they reflect the
conditions that employees are likely to encounter at general industry
workplaces today. Although some commenters alleged that construction
and shipyards workers could be exposed to beryllium in greater-than-
trace concentrations during the dressing or sharpening of beryllium-
containing non-sparking tools, other comments and hearing testimony
more persuasively indicated that the dressing or sharpening of non-
sparking tools is not an exposure source of concern for workers in the
construction and shipyards sectors covered by the beryllium standards.
For example, at the public hearing, a representative from NABTU,
indicated that although non-sparking tools are used in the
petrochemical industry, NABTU could not find examples of tradespeople
dressing and sharpening the tools (Document ID 2222, Tr. 88). Indeed,
Materion commented that at least one supplier of beryllium containing
non-sparking tools offers tool sharpening as a free service to its
customers (Document ID 2237, p. 3).
---------------------------------------------------------------------------

    \27\ OSHA also asked AFL-CIO and NABTU at the hearing whether
workers needed to be protected against dermal contact with only
trace concentrations of beryllium (see Document ID 2222, Tr. 94-95,
121-22). As Materion and CISC pointed out in their post-hearing
submissions (Document IDs 2237, p. 1; 2241, p. 8), neither party
directly responded to OSHA's question.
---------------------------------------------------------------------------

    Accordingly, OSHA is tailoring certain aspects of the final
construction and shipyards beryllium standards to the operations for
which the agency has sufficient data to demonstrate worker exposure to
beryllium at levels of concern, to properly characterize and evaluate
the exposures, and to develop appropriate measures to address them
(i.e., abrasive blasting operations and limited welding operations in
shipyards). Tailoring the construction and shipyards beryllium
standards to these operations ensures that the standards are no more
complex or onerous than is needed to protect workers, which OSHA
believes will improve compliance and thereby better protect workers.

    Removing the provisions triggered on dermal contact with beryllium
(such as former paragraph (h)(1)(ii)) reflects OSHA's intent to
regulate contact with trace beryllium only when it causes airborne
exposures of concern. OSHA acknowledged in the 2017 final rule that
there is ``potential for exposure'' in operations other than abrasive
blasting and welding (and fashioned the scope of the standards
accordingly), but never determined that workers in the construction
industry are currently at risk of dermal contact with greater-than-
trace amounts of beryllium when working at general industry worksites,
or when dressing or sharpening non-sparking tools. Where OSHA did
originally include provisions aimed solely at dermal contact in the
construction and shipyards standards that it now intends to remove,
including paragraph (h)(i)(ii), it was due to the agency borrowing
provisions from the general industry standard without appropriately
accounting for the trace exposures in abrasive blasting and welding as
they pertain to dermal contact. Inclusion of these provisions was not
based on a finding by OSHA that the provisions were necessary to
address exposures beyond abrasive blasting and welding. OSHA finds that
the standards as revised will maintain protections in all likely
exposure scenarios while more appropriately addressing the operations
from which exposures regularly occur.
    Multiple commenters also expressed concern that OSHA's proposed
removal of the provisions that target dermal contact with beryllium
would result in insufficient protection for employees who work near, or
in support of, abrasive blasting operations, such as pot tenders and
clean-up helpers (see Document ID 2210, p. 4; 2211, p. 8; 2239, p. 3).
Particularly, AFL-CIO commented that previously-submitted evidence in
the record indicates that ``bystander'' workers are not typically
protected against exposure to beryllium to the same extent as workers
directly involved in abrasive blasting operations, and claimed that
OSHA has ``proposed to revoke protections that would protect against an
increased risk of cumulative inhalation and skin exposures even when
there are significant airborne exposures, especially among those
working near operations with significant airborne exposures'' (Document
ID 2210, p. 4 (citing Document IDs 2118, 2129, and 2135); see also
Document ID 2222, Tr. 117-18, 122-23). AFL-CIO also claimed that
``[r]espirators and other PPE do nothing to address bystander exposure
and leave wide variability in the times they are worn'' (Document ID
2239, p. 3). USW also commented at the hearing that ``even though the
blasters, the people who were actually engaged in an operation may be
well protected, there may be bystanders who may be exposed to things
that escape from containment or that are left over after the
containment's removed'' (Document ID 2222, Tr. 45).
    OSHA has always intended for the construction and shipyards
beryllium standards to protect workers who support, or are bystanders
to, abrasive blasting operations, and OSHA's beryllium standards
protect such workers through various mechanisms, including the
requirement for such workers to wear PPE when they have reasonably
expected airborne exposure to beryllium. When the agency promulgated
the standards in 2017, OSHA concluded that ``pot tenders/helpers, and
cleanup workers have the potential for significant airborne beryllium
exposure during abrasive blasting operations and during cleanup of
spent abrasive material'' and thus ``require protection under the
beryllium standards'' (82 FR at 2638). Additionally, OSHA determined in
the 2019 final rule that, despite partial overlap between the
requirements of the beryllium standards and other existing OSHA
standards, OSHA could not revoke paragraph (h) in its entirety because
``[s]ome workers exposed to beryllium in construction and shipyards,
such as abrasive blasting helpers, would not be fully protected if OSHA
revoked the requirements for PPE in their entirety.'' 84 FR 51394. OSHA
has not wavered from its position that abrasive blasting support and
bystander workers must be protected against potential airborne exposure
to beryllium.
    Paragraph (h)(1) requires employers to provide and to ensure the
use of PPE for abrasive blasting support workers and other bystanders
when those employees are reasonably expected to have airborne exposure
to beryllium at levels above the TWA PEL or STEL. Whether or not such
workers have tended to wear PPE with the same consistency as abrasive
blasting operators, these standards expressly require such workers to
use appropriate PPE whenever they have reasonable expected airborne
exposure to beryllium above the TWA PEL or STEL. This protects abrasive
blasting support workers and bystanders from the incremental additional
beryllium load caused by re-entrainment of trace beryllium where there
is already significant airborne exposure, while maintaining OSHA's
intent that dermal contact with trace beryllium alone did not require
protections (84 FR at 53912 (citing 83 FR at 19938); see also 84 FR at
53905-06).
    As further discussed below, and in the Summary and Explanation for
paragraph (f), such workers are also protected from exposure to
airborne beryllium by several other provisions, including the PPE
removal and cleaning provisions, the requirements to include certain
procedures in the written exposure control plan (paragraph (f)(1)), and
the housekeeping requirements in paragraph (j). AFL-CIO is thus
incorrect that the revised beryllium standards do not protect abrasive
blasting support workers and bystanders when there are significant
airborne exposures.
    This rule also finalizes OSHA's proposed modifications to
paragraphs (h)(2) and (3) of the standards, with two exceptions in
paragraph (h)(2). In the NPRM, OSHA proposed to revise the language of
several provisions in paragraphs (h)(2) and (3) (see 84 FR at 53913-
14). First, OSHA proposed to revise paragraph (h)(2)(i) so that it
requires each employee to remove PPE required by the standards at the
end of the work shift or, at the completion of all tasks involving
beryllium, whichever comes first. To do this, OSHA proposed to remove
the qualifier indicating that workers should remove ``beryllium
contaminated'' PPE, and instead add language indicating that workers
should remove PPE ``required by this standard.'' OSHA also proposed
removing the phrase requiring PPE to be removed when it becomes
``visibly contaminated with beryllium.'' OSHA considers a surface to be
contaminated with beryllium when it has been contaminated with dust,
fumes, mists, or solutions containing beryllium in concentrations
greater than or equal to 0.1 percent by weight, and OSHA explained that
removing the ``beryllium contaminated'' and ``visibly contaminated with
beryllium'' language reflects the agency's understanding that the data-
supported operations that create exposures at levels of concern in
these industries (abrasive blasting and some welding in shipyards) will
not create a beryllium-contaminated surface.
    OSHA explained in the NPRM, however, that where employees working
with materials containing trace concentrations of beryllium nonetheless
have the potential for airborne exposure above the TWA PEL or STEL, and
would thus still be required to use PPE under paragraph (h)(1), they
would likely be working in highly dusty environments that could
accumulate large amounts of dust on their PPE (84

FR at 53913). In those situations, the proposed paragraph (h)(2)(i)
would require employees to remove their PPE at the end of the work
shift or when all tasks involving beryllium have completed, whichever
comes first to prevent the dust on the PPE from being re-entrained into
the air and contributing to the airborne exposure of workers who
already are, or can reasonably be expected to be, exposed above the TWA
PEL or STEL.
    For the same reason, OSHA also proposed in the NPRM to replace the
qualifier in paragraph (h)(2)(ii) that PPE be ``beryllium
contaminated,'' and instead add language clarifying that the provision
applies to PPE ``required by the standard.'' The resulting proposed
paragraph (h)(2)(ii) would require employers to ensure that PPE
required by the standard is not removed in a manner that disperses
beryllium into the air, which can be accomplished by cleaning the PPE
prior to removal or carefully removing the PPE so as not to disturb the
dust.
    OSHA also proposed to remove the language from paragraph (h)(2)(ii)
requiring employers to ensure that employees remove PPE in accordance
with the written exposure control plan to reflect OSHA's simultaneous
proposal to remove from paragraph (f) the requirement to include
procedures for doffing, laundering, storing, cleaning, repairing, and
disposing of beryllium-contaminated PPE in the written exposure control
plan. However, as discussed in the Summary and Explanation for
paragraph (f), OSHA has determined that written exposure control plans
should continue to include procedures for those PPE requirements that
OSHA did not propose to remove. Accordingly, OSHA is including in
paragraph (f) a requirement that the written exposure control plan
include procedures for removal, cleaning, and maintenance of PPE in
accordance with paragraph (h) (see paragraph (f)(1)(i)(F)). Having
retained these procedures in the written exposure control plan, OSHA is
not finalizing its proposal to remove the reference to the written
exposure control plan from paragraph (h)(2)(ii).
    For paragraph (h)(3), OSHA also proposed to add language to clarify
that the requirement that employers ensure that beryllium is not
removed from PPE by blowing, shaking or any other means that disperses
beryllium into the air applies to PPE that is ``required by the
standard.'' OSHA explained in the NPRM that the proposed revision would
assure employers that, if dust containing only trace amounts of
beryllium migrates to the PPE of employees who are not reasonably
expected to have airborne exposure to beryllium above the TWA PEL or
STEL, the beryllium standards permit that PPE to be removed and cleaned
in a manner that disperses that dust into the air. The proposed
revision is thus consistent with the agency's goal of protecting
employees who already have reasonably expected airborne exposure to
beryllium at levels of concern from inhaling re-entrained beryllium-
containing dust.
    In addition to these proposed revisions to paragraphs (h)(2) and
(3), OSHA proposed to remove four provisions from paragraphs (h)(2) and
(3): The requirement to ensure that each employee stores and keeps
beryllium-contaminated PPE separate from street clothing and that
storage facilities prevent cross-contamination as specified in the
written exposure control plan (paragraph (h)(2)(iii)); to ensure that
beryllium-contaminated PPE is only removed from the workplace by
employees who are authorized to do so for the purpose of laundering,
cleaning, maintaining, or disposing of such PPE (paragraph (h)(2)(iv));
to ensure that PPE removed from the workplace for laundering, cleaning,
maintenance, or disposal be placed in closed, impermeable bags or
containers labeled in accordance with the standards' employee
information and training requirements and the Hazard Communication
standard (paragraph (h)(2)(v)); and, to inform, in writing, any person
or business entity who launders, cleans, or repairs PPE required by the
standards of the potentially harmful effects of exposure to airborne
beryllium and dermal contact with beryllium, and of the need to handle
the PPE in accordance with the standards (paragraph (h)(3)(iii)). OSHA
proposed to remove paragraphs (h)(2)(iii) and (iv), which apply only to
``beryllium-contaminated'' PPE, because, as explained above, OSHA has
defined ``beryllium-contaminated'' as contaminated with dust, fumes,
mists, or solutions containing beryllium in concentrations greater than
or equal to 0.1 percent by weight (see 83 FR at 19939), and the data-
supported operations that produce beryllium exposures of concern in the
construction and shipyards industries (abrasive blasting and some
welding in shipyards) will not produce such ``beryllium-contaminated''
PPE. As for the requirements in paragraphs (h)(2)(v) and (h)(3)(iii),
which were included to protect individuals who handle beryllium-
contaminated items after operations involving beryllium have been
completed (82 FR at 2683), OSHA preliminarily determined in the NPRM
that it is unnecessary to protect such downstream handlers of PPE in
this context. Given the operations to which these standards are
tailored, downstream handlers of PPE could only come in contact with
dust that contains beryllium in trace concentrations, and OSHA has no
reason to believe that those individuals would be engaging in tasks
that could generate airborne exposures at levels of concern. In keeping
with OSHA's intent to only regulate contact with trace concentrations
of beryllium when workers are exposed to significant airborne exposure
to beryllium, OSHA proposed that these two provisions targeting
downstream handlers of PPE are unnecessary and should be removed.
    OSHA received only a few comments that specifically addressed the
proposed changes to paragraphs (h)(2) and (h)(3). NJH stated that
``[t]he same protections should be in place for shipyards and
constructions as in general industry when using, handling, cleaning and
repairing PPE'' (Document ID 2211, p. 10). Additionally, when
commenting on OSHA's proposed revisions to paragraph (f), NJH stated
that, when workers clean and dismantle containments, ``clothes and PPE
for non-blasting workers are likely to be contaminated with beryllium
particulate and need to be removed, laundered, stored, cleaned,
repaired, and disposed of in a manner similar to that outlined in the
original housekeeping provision'' (Document ID 2211, p. 8). NJH also
argued that the written exposure control plan should include procedures
to identify and minimize beryllium exposures to workers involved in
cleaning and maintaining PPE, and that whenever beryllium exposures are
generated during a process, PPE used during the process should be
handled in the manner outlined in the 2017 final rule (Document ID
2211, p. 9).
    OSHA does not agree that it is necessary or appropriate for the
construction and shipyards beryllium standards to contain the exact
same PPE handling requirements as the general industry beryllium
standard. As explained above, OSHA finds it appropriate to tailor the
construction and shipyards beryllium standards to the limited
operations in those sectors for which OSHA has significant evidence of
exposures to beryllium at levels of concern (abrasive blasting
operations and some welding operations in shipyards). Those operations
do not create a risk of dermal contact with dust, fumes, or mists
containing greater-than trace concentrations of beryllium, and
therefore PPE used during such

operations will not accumulate surface dust with greater-than-trace
concentrations of beryllium. OSHA agrees, however, that it is
beneficial and necessary to require employers to establish and describe
procedures for removing, cleaning, and maintaining PPE in the written
exposure control plan. As discussed in the Summary and Explanation for
paragraph (f), OSHA has included such a requirement in paragraph
(f)(1)(i)(F) of the standards, and as noted above, has retained the
requirement in paragraph (h)(2)(ii) that PPE be removed as specified in
the written exposure control plan.
    AFL-CIO commented that the proposed modifications to paragraph
(h)(2) and (3), when combined with OSHA's proposed changes to paragraph
(f), ``increase the cumulative exposure risk for workers wearing'' PPE
and ``the risk of cross-contamination and migration of beryllium
exposing workers with no respiratory or dermal protection'' (Document
ID 2210, p. 7). Particularly, AFL-CIO expressed concern that OSHA's
proposed requirement for written exposure control plans to include
procedures used to ensure the integrity of each containment used to
minimize exposures to employees outside of containments used to limit
bystander exposures (paragraph (f)(1)(i)(E) of the construction
standard and paragraph (f)(1)(i)(D) of the shipyards standard) ``would
create a higher concentration of beryllium dust inside the enclosure,''
while OSHA's proposed revisions to paragraphs (f) and (h)(2) and (3)
would no longer require employers to use specific procedures to ensure
that PPE is safely doffed (Document ID 2210, p. 7).
    AFL-CIO also expressed concern that OSHA's proposed modifications
to paragraphs (h)(2) and (3) would not sufficiently protect downstream
handlers of PPE. AFL-CIO stated that, ``by removing provisions to keep
contaminated PPE separate and labelled, as well as, informing those who
will come into contact with the PPE that there is potential of
beryllium exposure,'' OSHA has ``assume[d] without evidence that
downstream handlers of PPE will not generate airborne exposures,''
which leaves ``other employers at risk of exposing their employees to a
carcinogen without their knowledge'' (Document ID 2210, pp. 8, 10).
AFL-CIO similarly stated at the hearing that ``there's no evidence in
the record that shows that [downstream] workers will not generate
airborne exposure and that they should not be informed about the
hazards of beryllium'' (Document ID 2222, Tr. 118-19).
    In its post-hearing brief, AFL-CIO further discussed its belief
that preventing cross-contamination and migration of beryllium-
containing dust is essential to protecting workers (see Document ID
2244, pp. 10-15), and cite a 2019 NIOSH publication of a study by Virji
et al. that stressed the importance of minimizing dust migration to
reduce the risk of beryllium sensitization (Document ID 2244, pp. 11-12
(citing Document ID 2239)). AFL-CIO specifically expressed concern that
``[a]brasive blasting, a high dust producing task, is likely to result
in significant dust migration and cross-contamination leading to
increased beryllium inhalation and dermal exposure if the provisions in
the [2017] final rule do not remain in place'' (Document ID 2244, p.
12).
    Although specifically directed in response to OSHA's proposed
revisions to paragraph (f), NABTU also expressed its belief that OSHA
must retain the standards' procedures for minimizing cross-
contamination and migration of beryllium-containing dust (Document ID
2240, p. 5). NABTU likewise pointed to the Virji et al. study, stating
that the study indicated ``that workers at a primary beryllium
producing facility who were not directly involved in beryllium-related
operations were still exposed to beryllium in sufficient quantities to
cause beryllium sensitization,'' and therefore provides ``further
support to the need to ensure workers handle their clothing and other
personal protective equipment in ways that minimize the potential that
either they, their family members or others who may handle the PPE are
incidentally exposed'' (Document ID 2240, p. 6).
    OSHA disagrees with AFL-CIO and NABTU. The modifications to
paragraphs (h)(2) and (3), when combined with the modifications to
paragraph (f)(1), maintain the necessary protections for workers. As
explained above, the activities to which the construction and shipyards
standards are tailored (abrasive blasting operations and limited
welding operations in shipyards) do not present a risk of dermal
contact with beryllium in greater-than-trace concentrations. In this
context, the purpose of the provisions of paragraphs (h)(2) and (3) is
to prevent workers with significant airborne exposure to beryllium from
the additional inhalation risk that could result if beryllium-
containing dust were to spread and become re-entrained in the air.
    OSHA finds that paragraphs (h)(2) and (3) have been appropriately
revised to achieve this purpose. The revised paragraph (h)(2)(i)
requires that employees who have reasonably expected airborne exposure
to beryllium at levels above the TWA PEL or STEL remove their PPE at
the end of the work shift or all tasks involving beryllium, and revised
paragraphs (h)(2)(ii) and (h)(3)(ii) prohibit removing PPE, or
beryllium from PPE, in a manner that would disperse beryllium into the
air. These requirements are supplemented by the requirement in
paragraph (f)(1)(i)(F) for employers to include procedures for
removing, cleaning, and maintaining PPE in the written exposure control
plan, and work in concert with additional provisions that minimize the
potential for beryllium-containing dust to spread in the workplace.
Specifically, that goal is furthered by the standards' requirements to
restrict access to work areas at construction worksites where exposures
to beryllium could reasonably be expected to exceed the TWA PEL or STEL
(paragraphs (f)(1)(i)(D) and (e)(2)) and establish and limit access to
regulated areas at shipyard worksites (paragraph (e)); establish
procedures to ensure the integrity of containments (paragraphs
(f)(1)(i)(E) in construction and (f)(1)(i)(D) in shipyards); \28\
establish engineering and work practice controls (paragraph (f)(2));
and, engage in housekeeping practices that limit the potential for
airborne exposure to beryllium (paragraph (j)).
---------------------------------------------------------------------------

    \28\ AFL-CIO's concern that these containment integrity
provisions in paragraph (f) will increase the levels of exposure for
employees who are required to wear PPE under the beryllium standards
is mistaken. As discussed in the Summary and Explanation for
paragraph (f), these new provisions do not require employers to use
containments, but rather require that, when an employer chooses to
use a containment (such as a tarp or other structure), the employer
must include in its written exposure control plan specific
procedures for ensuring the integrity of the containment. The
purpose of the paragraphs is to ensure that, when an employer
chooses to use a containment, it is used in such a way that
employees outside of the containment are not inadvertently exposed
to beryllium at levels above the TWA PEL or STEL. Contrary to AFL-
CIO's suggestion, adding these paragraphs to the standards will
merely ensure that containments, when used, accomplish their
intended function.
---------------------------------------------------------------------------

    To further prevent beryllium-containing dust from creating an
additional inhalation risk to employees who already have the potential
for airborne exposure above the TWA PEL or STEL, OSHA has decided
against finalizing its proposal to remove former paragraph (h)(2)(iv)
from the standards, and has retained a revised version of that
requirement in the standards. As discussed above, paragraph (h)(2)(iv)
previously required the employer to

ensure that no employee removes beryllium-contaminated PPE from the
workplace, except for employees authorized to do so for the purposes of
laundering, cleaning, maintaining or disposing of beryllium-
contaminated PPE at an appropriate location or facility away from the
workplace. OSHA proposed to remove this provision because the data-
supported operations that produce beryllium exposures of concern in the
construction and shipyards industries (abrasive blasting and some
welding in shipyards) will not produce ``beryllium-contaminated'' PPE
as OSHA has defined that term (see 83 FR at 19939).
    However, upon consideration of commenters' concerns, and
particularly those regarding the risk of cumulative airborne exposure
from contaminated PPE, OSHA has determined that removing this provision
would insufficiently protect employees who already have airborne
exposure above the PEL from the additional inhalation risk that could
occur if they were allowed to remove their PPE from the worksite
without first properly cleaning it. As OSHA explained in the NPRM and
previously in this Summary and Explanation, where employees working
with materials containing trace concentrations of beryllium have
reasonably expected airborne exposure above the TWA PEL or STEL due to
their work activity, and would thus be required to use PPE under
paragraph (h)(1), they will likely be working in highly dusty
environments that could accumulate large amounts of dust on their PPE
(84 FR at 53913). OSHA finds that it is appropriate to ensure that such
workers clean their PPE in accordance with paragraph (h)(3)(ii) prior
to removing it from the worksite to prevent them from being further
exposed to airborne beryllium if the dust on their PPE were to be re-
entrained in their vehicles or homes. Therefore, rather than removing
paragraph (h)(2)(iv) entirely, OSHA is revising the provision (and
renumbering it as (h)(2)(iii)) to require the employer to ensure that
no employee with reasonably expected exposure above the TWA PEL or STEL
removes PPE required by the beryllium standard from the workplace
unless it has been cleaned in accordance with paragraph (h)(3)(ii).
    As explained below, the provisions that OSHA is removing in this
final rule from paragraphs (h)(2) and (3) (specifically, former
paragraphs (h)(2)(iii) and (v) and (h)(3)(iii)) do not further the goal
of preventing workers from encountering beryllium-containing dust that
could be re-entrained in the air and exacerbate an already-significant
lung burden. OSHA has therefore determined that the provisions are
unnecessary.
    As discussed above, former paragraph (h)(2)(iii) required the
employer to ensure that each employee stores and keeps beryllium-
contaminated PPE from street clothing and that storage facilities
prevent cross-contamination as specified in the written exposure
control plan required by paragraph (f)(1) of this standard, but PPE
cannot become ``beryllium-contaminated,'' as OSHA has defined that term
(see 83 FR at 19939), in the operations to which these standards are
being tailored. Moreover, OSHA has determined that it is unnecessary to
retain and revise former paragraphs (h)(2)(iii) so that it applies to
PPE required by the beryllium standards, as OSHA has done for
(h)(2)(ii) and (h)(3)(ii), because such a provision would not provide
protection beyond that already provided by OSHA's sanitation standards
in construction and shipyards.
    The sanitation standards for both construction and shipyards
require employers to provide change rooms under certain circumstances.
As explained in the Summary and Explanation of paragraph (i), the
sanitation standard for construction requires employers to provide
change rooms if a particular standard requires employees to wear
protective clothing because of the possibility of contamination with
toxic materials (29 CFR 1926.51(i)). The change rooms must be equipped
with separate storage facilities for street clothes and protective
clothing. Similarly, the sanitation standard for shipyards requires
change rooms when the employer provides protective clothing to prevent
employee exposure to hazardous or toxic substances (29 CFR 1915.88(g)).
Furthermore, the employer must provide change rooms that provide
privacy and storage facilities for street clothes, as well as separate
storage facilities for protective clothing.
    Because the beryllium standards require PPE where exposures may
exceed the TWA PEL or STEL, employers are required to provide change
rooms under the sanitation standards where employees can store and keep
PPE separate from street clothing to prevent cross-contamination. OSHA
finds that, combined with the requirements in paragraph (h)(2)(ii) and
(h)(3)(ii) regarding the safe removal and cleaning of PPE, the
requirement in paragraph (f)(1) to include procedures for removing and
cleaning PPE in the written exposure control plan, and the training
requirements of paragraph (m), the sanitation standards' requirement
allowing employees to remove and store their PPE in separate storage
facilities provide the necessary protections for employees in the
construction and shipyards context. Accordingly, OSHA is finalizing its
proposal to revoke former paragraph (h)(2)(iii) in both standards.
    As for former paragraphs (h)(2)(v) and (h)(3)(iii), which target
downstream handlers of PPE, OSHA explained in the NPRM that it has no
reason to believe that such individuals have airborne exposure to
beryllium at levels above the TWA PEL or STEL. In response to the NPRM,
no commenters provided the agency with any evidence indicating
otherwise. Accordingly, OSHA finds that downstream handlers of PPE
would not have airborne exposure to beryllium at levels of concern that
could be exacerbated by exposure to any residual dust encountered
during the PPE removal, laundering, cleaning or repair process. And,
given that the operations to which OSHA is tailoring the standards only
involve materials containing trace concentrations of beryllium and/or
do not pose a significant risk of skin contamination, and that OSHA
only intended for the standards to prevent contact with materials
containing trace concentrations of beryllium when there are significant
airborne exposures at levels of concern, former paragraphs (h)(2)(v)
and (h)(3)(iii) are not necessary to protect downstream handlers of PPE
from dermal contact with beryllium.
    As for AFL-CIO's criticism that the agency has not produced
evidence to prove that downstream workers are not exposed to airborne
beryllium at levels above the TWA PEL or STEL, OSHA has no obligation
or authority to prescribe remedies for problems for which it has no
evidence of their existence. OSHA did not have evidence of any such
exposure when it promulgated the standards in 2017, and its inclusion
of the protections for downstream handlers of PPE in the 2017 final
rule was due to the agency borrowing provisions from the general
industry standard without appropriately accounting for only trace
exposures to beryllium in abrasive blasting and welding operations as
they pertain to dermal contact.
    With the exception of former paragraph (h)(2)(iv) (renumbered as
(h)(2)(iii)), AFL-CIO's and NABTU's comments have not persuaded the
agency that any of the provisions that it proposed to remove from
paragraphs (h)(2) and (3) are necessary to protect workers in
construction and shipyards. Both commenters appear to assume that
workers in the construction and shipyards industries require protection

against dermal contact with beryllium, but as explained above, the
operations to which OSHA is tailoring the construction and shipyards
standards do not pose a risk of dermal contact with beryllium in
greater-than-trace concentrations, and OSHA never intended to protect
against such contact unless the individual has exposure to airborne
beryllium at levels exceeding the TWA PEL or STEL. Furthermore, as
explained in the Summary and Explanation for paragraph (f), the Virji
et al. study, to which both AFL-CIO and NABTU cite, likely does not
reflect current conditions in general industry facilities, and thus
does not establish that construction employees who enter a general
industry site today would require protection from dermal contact with
beryllium in more than trace amounts. OSHA has determined that, given
the data-supported operations that produce exposures of concern in this
context, the revised paragraphs (h)(2) and (3), working in concert with
other relevant provisions in the standards, provide workers with the
necessary protection against the additional inhalation exposure that
could be posed by the spread of dust containing trace amounts of
beryllium.
    Several other commenters responded that OSHA's proposed changes to
paragraph (h) do not go far enough, and that none of the beryllium
standards' ancillary provisions, including the PPE provision, are
necessary (Document ID 2203, p. 1-2, 11; 2199, p. 3; 2205, p. 2; 2206,
pp. 10-13; 2209, pp. 1-2; 2241, pp. 3-4). CISC specifically commented
that, because abrasive blasting employees already wear PPE, OSHA has
not established that requiring the provision and use of PPE when
employees have reasonably expected airborne exposure to beryllium above
the TWA PEL or STEL will significantly reduce the risk of harm
(Document ID 2203, p. 11; 2241, p. 3). ABMA similarly claimed that
``[t]here is no evidence that the pre-existing standards governing
abrasive blasting are insufficient to protect employees, and there is
no evidence that exposure to the trace amounts of naturally occurring
beryllium in abrasive blasting (or welding) has resulted in any
material impairment of health to employees in all of the many years
this work has been performed'' (Document ID 2206, p. 11).
    OSHA did not propose in this rulemaking to remove the standards'
PPE requirements in their entirety, and in fact, explained in the NPRM
that it determined in the 2019 final rule that removing paragraph (h)
in its entirety would not sufficiently protect workers from airborne
exposure to beryllium (84 FR at 53913). OSHA acknowledged that other
standards already require some employees engaged in abrasive blasting
and welding operations in the construction and shipyards sectors to use
PPE. However, some workers with known exposure to beryllium in
construction and shipyards, such as abrasive blasting helpers, would
not be fully protected if OSHA revoked the requirements for PPE in
their entirety. In addition, other OSHA standards do not provide
specific PPE removal, cleaning, and maintenance requirements. As
explained above, the PPE removal and cleaning provisions in these
standards are necessary to minimize the spread of beryllium-containing
dust, which, if re-entrained could create additional inhalation
exposures for workers with reasonably expected airborne exposure to
beryllium at levels exceeding the TWA PEL or STEL. Commenters have
provided no new information indicating that such protections are
unnecessary, and OSHA finds that the PPE provisions that it is
promulgating in paragraph (h) are necessary and appropriate to protect
workers in the construction and shipyards industries.

Former Paragraph (i) Hygiene Areas and Practices

    In this final rule, OSHA is removing paragraph (i), hygiene areas
and practices, from the beryllium standards for construction and
shipyards. OSHA has acknowledged the importance of hygiene practices
throughout the beryllium rulemaking process (see, e.g., 82 FR at 2684-
85; 84 FR at 53915). However, it has also acknowledged that the
sanitation standards in general industry (29 CFR 1910.41), construction
(29 CFR 1926.51), and shipyards (29 CFR 1915.88) include provisions
similar to some of those in the beryllium standards (84 FR at 53914).
In the NPRM, OSHA explained that it was reconsidering the need to
include additional, beryllium-specific hygiene requirement in the
construction and shipyards standards, in light of the specific exposure
sources in these industries; specifically, abrasive blasting operations
involving beryllium in trace amounts and limited welding operations in
which dermal exposure is not a concern (84 FR at 53914-15).
    Based on the evidence in the record and after reviewing the
comments and hearing testimony pertaining to hygiene areas and
practices, OSHA has determined that the sanitation standards for
construction (29 CFR 1926.51) and shipyards (29 CFR 1915.88) provide
protections comparable to those in paragraph (i) of the beryllium
standards for construction and shipyards and that additional
requirements will not materially increase protections in these sectors.
Accordingly, OSHA is removing paragraph (i) from the beryllium
standards for construction and shipyards.
    Paragraph (i) of the 2017 final rule established requirements for
hygiene areas and practices in general industry (29 CFR 1910.1024),
construction (29 CFR 1926.1024), and shipyards (29 CFR 1915.1024). As
promulgated in 2017, paragraph (i) required employers in all three
industries to: (1) Provide readily accessible washing facilities to
remove beryllium from the hands, face, and neck (paragraph (i)(1)(i));
(2) ensure that employees who have dermal contact with beryllium wash
any exposed skin (paragraph (i)(1)(ii)); (3) provide change rooms if
employees are required to use personal protective clothing and are
required to remove their personal clothing (paragraph (i)(2)); (4)
ensure that employees take certain steps to minimize exposure in eating
and drinking areas (paragraph (i)(3)); and (5) ensure that employees do
not eat, drink, smoke, chew tobacco or gum, or apply cosmetics in areas
where there is a reasonable expectation of exposure above the TWA PEL
or STEL (paragraph (i)(4)).
    After publishing the 2017 final rule, OSHA clarified in a direct
final rule (DFR) for general industry that the agency only intended to
regulate contact with trace beryllium to the extent that it causes
airborne exposures of concern (83 FR at 19938). Unlike in general
industry, where processes involving exposure to beryllium are varied
and employees are exposed to a variety of materials that can contain
high concentrations of beryllium, exposures in the construction and
shipyards industries are primarily limited to abrasive blasting
operations in construction and shipyards and a small number of welding
operations in shipyards (Document ID 2042, FEA Chapter III, pp. 103-11
and Table III-8e) (see the Summary and Explanation for paragraph (f)(1)
for a discussion of the potential for additional sources of exposure in
these sectors). While the extremely high airborne exposures during
abrasive blasting operations can expose workers to beryllium in excess
of the PEL, the blasting materials contain only trace amounts of
beryllium (Document ID 2042, FEA Chapter IV, p. 612). Moreover, the
record before the agency contains evidence of beryllium exposure during
only limited welding operations in shipyards (Document ID 2042, FEA
Chapter III, Table III-8e) and as discussed previously, OSHA has

determined that for these limited welding operations the exposure of
concern is exposure to airborne beryllium and not dermal contact.
    In the NPRM, OSHA preliminarily determined that, based on the trace
beryllium content of blasting materials and the available information
on welding operations, the construction and shipyards sectors do not
have operations where skin or surface contamination in the absence of
significant airborne exposures is an exposure source of concern (84 FR
at 53906, 53914-15). In light of the existing OSHA standards providing
many of the same protections as the beryllium standards, the limited
operations where beryllium exposure may occur in construction and
shipyards, and the trace quantities of beryllium present in
construction and shipyard operations, OSHA preliminarily determined
that the requirements for hygiene areas and practices in the 2017
beryllium standards for construction and shipyards may be unnecessary
to protect employees in these industries and proposed to remove all
provisions of paragraph (i) from the construction and shipyard
standards (84 FR 53915-16). Accordingly, the agency proposed to remove
paragraph (i) from the construction and shipyard standards (84 FR at
53916). Detailed explanations of each provision and OSHA's reasoning
for removing them are presented below, along with discussion of and
response to comments received on the proposal.
    Paragraph (i)(1) of both the construction and shipyards standards
required that, for each employee required to use PPE by the standard,
employers provide readily accessible washing facilities for use in
removing beryllium from the hands, face, and neck (paragraph
(i)(1)(i)), and ensure employees who have dermal contact with beryllium
wash any exposed skin at the end of the activity, process, or work
shift and prior to eating, drinking, smoking, chewing tobacco or gum,
applying cosmetics, or using the toilet (paragraph (i)(1)(ii)). OSHA
proposed to remove these provisions because existing standards already
require the use of washing facilities for workers in construction and
shipyards.
    The sanitation standard for construction (29 CFR 1926.51(f))
requires employers to provide adequate washing facilities maintained in
a sanitary condition for employees engaged in operations where
contaminants may be harmful to the employees. It also requires that
these washing facilities must be in proximity to the worksite and must
be so equipped as to enable employees to remove such substances.
Lavatories are also required at all places of employment and must be
equipped with hot and cold running water, or tepid running water. Hand
soap or similar cleansing agents must be provided along with hand
towels, air blowers, or clean continuous cloth toweling, convenient to
the lavatories. The sanitation standard for shipyards (29 CFR
1915.88(e)) similarly requires employers to provide handwashing
facilities at or adjacent to each toilet facility. The criteria for
these handwashing facilities are similar to the construction industry
in that they must be equipped with hot and cold running water or tepid
running water, soap, or skin cleansing agents capable of disinfection
or neutralizing the contaminant, and drying materials and methods. This
standard further requires the employer to inform each employee engaged
in operations in which hazardous or toxic substances can be ingested or
absorbed about the need for removing surface contaminants from their
skin's surface by thoroughly washing their hands and face at the end of
the work shift and prior to eating, drinking, or smoking (see 29 CFR
1915.88(e)(3)). Even though the sanitation standards do not
specifically mention beryllium, the use of the terms harmful substances
in the construction sanitation standard and hazardous or toxic
substance in the shipyard sanitation standard encompass beryllium
exposure where airborne exposure exceeds, or can reasonably be expected
to exceed, the TWA PEL or STEL.
    With respect to abrasive blasting, the sanitation standards'
washing facilities requirements are triggered by the use of blasting
media; either due to contaminants in the blasting media (which may
include beryllium, lead, hexavalent chromium, cadmium, and arsenic) or
contamination from the substrate or coatings on the substrate.
Similarly, in the limited welding operations involving beryllium
exposure, workers will likely be exposed to other hazardous chemicals
(including hexavalent chromium, lead, and cadmium) (see https://www.osha.gov/SLTC/weldingcuttingbrazing/chemicals.html), triggering the
requirements of the sanitation standards. Accordingly, the sanitation
standards provide comparable protections to the washing facilities
requirements that OSHA is proposing to remove from both the
construction and shipyard standards (paragraphs (i)(1)(i) and (ii)).
    OSHA also proposed to remove paragraph (i)(2), which required
employers to provide change rooms where employees are required to
remove their personal clothing in order to don PPE (paragraph (i)(2)),
because the sanitation standards already provide comparable protections
(84 FR at 53915). The sanitation standard for construction (29 CFR
1926.51(i)) requires employers to provide change rooms if a particular
standard requires employees to wear protective clothing because of the
possibility of contamination with toxic materials. The change rooms
must be equipped with storage facilities for street clothes and
separate storage facilities for the protective clothing must be
provided. Similarly, the sanitation standard for shipyards (29 CFR
1915.88(g)) requires change rooms when the employer provides protective
clothing to prevent employee exposure to hazardous or toxic substances.
Furthermore, the employer must provide change rooms that provide
privacy and storage facilities for street clothes, as well as separate
storage facilities for protective clothing. Because the beryllium
standards require PPE where exposures may exceed the TWA PEL or STEL,
employers are required to provide change rooms under the sanitation
standards, just as they would have been required by paragraph (i)(2) of
the beryllium standards.
    OSHA further proposed to remove paragraph (i)(3) from the
construction and shipyards standards, which established requirements
for eating and drinking areas. Paragraph (i)(3)(i) required that
surfaces in eating and drinking areas be kept as free as practicable of
beryllium and paragraph (i)(3)(ii) required that employees remove or
clean contaminated clothing prior to entering these areas. OSHA
proposed to remove these provisions for two reasons. First, provisions
in the sanitation standards for construction (29 CFR 1926.51(g)) and
shipyards (29 CFR 1915.88(h)) already require employers to ensure that
food, beverages, and tobacco products are not consumed or stored in any
area where employees may be exposed to hazardous or toxic materials.
Second, these provisions relate to minimizing dermal contact.\29\ As
explained in the Summary and Explanation for paragraph (h), OSHA

intends that provisions aimed at addressing dermal contact should only
apply to materials containing trace amounts of beryllium where there is
also the potential for significant airborne exposure. OSHA
preliminarily determined that the processes in construction and
shipyards creating exposure to beryllium are either processes that
involve materials containing less than 0.1 percent beryllium by weight
or processes that do not produce surface or skin contamination (84 FR
at 53916).
---------------------------------------------------------------------------

    \29\ In the 2019 construction and shipyards final rule, in which
OSHA declined to revoke all of the ancillary provisions of these
standards, OSHA stated that there was not complete overlap between
the sanitation standards and the eating and drinking area
requirements of paragraph (i)(3) (84 FR at 51395). That rule,
however, did not address whether additional beryllium-specific
requirements were necessary in light of the trace exposures in these
contexts.
---------------------------------------------------------------------------

    OSHA further explained that other parts of the beryllium standard
will reduce the potential for airborne beryllium in eating and drinking
areas (84 FR at 53916). Specifically, when employees are cleaning up
dust resulting from operations that cause, or can reasonably be
expected to cause, airborne exposures over the TWA PEL or STEL, the
employer must ensure the use of methods that minimize the likelihood
and level of airborne exposure (see paragraph (j)). And under proposed
paragraph (h)(2)(ii), employers must ensure that PPE required by the
standard is not removed in a manner that disperses beryllium into the
air. Given that the construction and shipyard operations known to
involve beryllium exposure involve only trace amounts of beryllium (or,
in the case of welding, do not pose a dermal contact risk), and that
other provisions of the beryllium standard such as engineering controls
and housekeeping requirements serve to minimize airborne exposures,
OSHA preliminarily determined that existing standards adequately
protect employees in eating and drinking areas (84 FR at 53916).
    OSHA also proposed to remove the reference in paragraph (i)(3)(iii)
which required that eating and drinking facilities provided by the
employer must be in accordance with the sanitation standards. OSHA does
not believe it is necessary to maintain this reference, as this would
be the only requirement remaining in paragraph (i) and employers are
required to comply with the sanitation standards regardless.
    Finally, OSHA proposed to remove paragraph (i)(4), which required
the employer to ensure that no employees eat, drink, smoke, chew
tobacco or gum, or apply cosmetics in work areas where there is a
reasonable expectation of exposure above the TWA PEL or STEL. The
sanitation standards prohibit consuming food or beverages in areas
exposed to toxic material and therefore provides the appropriate
protections for areas where exposures are above the PEL. OSHA
preliminarily determined that the sanitation standards are
substantially similar to former paragraph (i)(4) and provide
appropriate protections for areas where exposures are above the PEL (84
FR at 53916).
    In the 2019 NPRM, OSHA requested comment on the proposed removal of
paragraph (i), especially comments and data on the use of wash
facilities and change rooms in construction and shipyards for
operations that would be covered by the beryllium standards (84 FR at
53916).
    Several commenters disagreed with OSHA that the hygiene provisions
under paragraph (i) should be rescinded. AFL-CIO commented that
removing paragraph (i) will increase workers' risk of cumulative
beryllium exposure and could lead to migration of beryllium to other
areas, resulting in inhalation exposure to other workers (Document ID
2210, p. 8). They argued that the sanitation standards leave gaps in
coverage, in light of ``the significant risk of impairment to worker
health at low exposure limits and the carcinogenicity of beryllium,''
and that other provisions of the beryllium standard addressing airborne
exposure are insufficient to justify removing the hygiene provisions
(Document ID 2210, p. 8). In post-hearing comments, AFL-CIO reiterated
their position and stated that the 2017 final rule found paragraph (i)
``prevents additional airborne and dermal exposure to beryllium,
accidental ingestion of beryllium, spread of beryllium inside and
outside the workplace and reduces significant risk of beryllium
sensitization and CBD'' (Document ID 2239, p. 2).
    AFL-CIO did not identify which protections in paragraph (i) are
left unaddressed by the sanitation standards. With respect to increases
in cumulative exposure or migration of beryllium resulting in increased
airborne exposure, OSHA has explained that the sanitation standards for
construction and shipyards contain comparable requirements for change
rooms (29 CFR 1926.51(i); 29 CFR 1915.88(g)) and washing facilities (29
CFR 1926.51(f); 29 CFR 1915.88(e)) and prohibit contamination in eating
and drinking areas (29 CFR 1926.51(g); 29 CFR 1915.88(h)). At the same
time, existing provisions of the beryllium standards further reduce the
potential for airborne exposure by ensuring beryllium-containing dust
is cleaned up by methods that minimize the likelihood and level of such
exposure (paragraph (j)) and that PPE is removed and cleaned in a
manner that does not disperse beryllium into the air (paragraphs (h)(2)
and (3)). Regarding the need for provisions to protect against dermal
contact, OSHA has explained that it does not intend such provisions to
apply where, as here, exposure involves materials containing only trace
amounts of beryllium (see the Summary and Explanation for paragraph
(h)). Ultimately, OSHA disagrees with the AFL-CIO's broad and
unelaborated assertion that these protections are inadequate.
    NABTU, resubmitting comments previously entered in the docket,
argued that the hygiene provisions ``provide protections not only for
abrasive blasting workers, but for all construction workers who may be
exposed to beryllium,'' including workers who perform maintenance,
repair, renovation, or demolition of worksites that contain beryllium
(Document ID 2202, 2017 comment, p. 7; see also Document ID 2202, 2015
comment, p. 9). According to NABTU, providing washing and clean-up
facilities to beryllium-exposed workers benefits all workers at the
site, ``especially those who don't perform beryllium-exposing tasks,
who may not be aware of the hazards of beryllium'' (Document ID 2202,
2017 comment, p. 7). At the public hearing, when asked which hygiene
provisions they viewed as important for abrasive blasting operations in
construction, NABTU's representative identified ``handwashing
facilities . . . [and] the ability to change out of clothing that's
contaminated with the dust'' (Document ID 2222, Tr. 105).
    In their post-hearing brief, NABTU again emphasized their position
that OSHA should retain provisions related to dermal contact in
construction and argued that the sanitation standard for construction
lacks ``the level of specificity necessary to ensure construction
workers adequate protection'' (Document ID 2240, p. 8). Specifically,
although paragraph (f) of the sanitation standard requires construction
employers to provide washing facilities, NABTU notes that it does not
specify that workers must use these facilities following dermal contact
with beryllium and before ``eating drinking, smoking, chewing tobacco
or gum, applying cosmetics, or using the toilet'' (Document ID 2240, p.
9). And although paragraph (g) prohibits eating or drinking in ``any
area exposed to a toxic material,'' NABTU asserts that it ``does not
address the range of activities covered by the beryllium standard''
(Document ID 2240, p. 9). Finally, they state that the sanitation
standard does not require employees to remove surface beryllium from
their clothing or PPE before taking the equipment into an eating or
drinking area (Document ID 2240, p. 9).

    OSHA agrees with NABTU that washing and clean-up facilities benefit
all workers at a worksite and that all workers with beryllium exposure
should be protected. However, the agency has determined that a
beryllium-specific requirement is not necessary to provide these
protections in the construction context. OSHA has determined that the
sanitation standard for construction provides the same protections as
the beryllium standard with respect to washing facilities (29 CFR
1926.51(f)) and change rooms (29 CFR 1926.51(i)).
    OSHA disagrees with NABTU that the sanitation standard for
construction lacks sufficient specificity to protect workers in the
construction industry. First, with respect to the previous requirement
in paragraph (i)(1)(ii) that employees with dermal contact wash exposed
skin prior to ``eating, drinking, smoking, chewing tobacco or gum,
applying cosmetics, or using the toilet,'' this requirement was
triggered on and specifically aimed at addressing dermal contact (82 FR
at 2684).\30\ OSHA has addressed commenters' concerns regarding dermal
contact previously in this preamble (see the Summary and Explanation
for paragraph (f)), and simply notes again its determination that this
is not an exposure source of concern in the construction operations
known to involve beryllium exposure.
---------------------------------------------------------------------------

    \30\ In the general industry DFR, the agency revised the
definition of ``dermal contact with beryllium'' to apply only to
skin exposure to beryllium ``in concentrations greater than or equal
to 0.1 percent by weight'' (83 FR at 19940). OSHA notes that under
this revised definition of dermal contact, the requirement in
paragraph (i)(1)(ii) would never be triggered in the context of
abrasive blasting operations in construction and shipyards.
---------------------------------------------------------------------------

    The same rationale applies to NABTU's concerns regarding the list
of prohibited activities as they appear in paragraph (i)(4). OSHA
initially included these provisions due to the risk of ``beryllium
contaminating the food, drink, tobacco, gum, or cosmetics'' (82 FR at
2688). Having received no comments related to this provision when OSHA
original proposed it for the general industry standard, OSHA extended
``substantively identical'' requirements to the construction and
shipyards standards in the 2017 final rule (82 FR at 2688). In light of
OSHA's determination in this final rule that exposures in the
construction and shipyards sectors are limited to trace amounts of
beryllium, the agency finds that this is no longer a concern in these
sectors. Next, after considering NABTU's assertion that the sanitation
standard does not require employees to remove surface beryllium from
their clothing or PPE before taking the equipment into an eating or
drinking area, OSHA has reviewed the existing requirements of 29 CFR
1926.51 and determined that this is not the case. If an area contains
PPE covered with surface beryllium, such that employees may be exposed
through re-entrainment of the beryllium-containing dust, 29 CFR
1926.51(g) by its terms prohibits employees from consuming or storing
food, beverages, or tobacco products in that area.
    NJH commented that, although there is ``likely some overlap''
between the beryllium and sanitation standards, it is important to
ensure that ``special protections'' are in place to protect workers
from beryllium exposures (Document ID 2211, p. 10). NJH specifically
noted that contaminated change rooms may potentially exposure workers
not otherwise working with or exposed to beryllium (Document ID 2211,
p. 10). OSHA notes that paragraph (i)(2) in each of the beryllium
standards required employers to provide change rooms in accordance with
the beryllium standard and the relevant sanitation standard, when an
employee is required to change from street clothes to don PPE (29 CFR
1926.1124(i)(2); 29 CFR 1915.1024(i)(2)). Paragraph (h)(2)(iii) of the
beryllium standards, in turn, required employers to ensure that
beryllium-contaminated PPE is kept separate from street clothes and
that storage facilities prevent cross-contamination (29 CFR
1926.1124(h)(2)(iii); 29 CFR 1915.1024(h)(2)(iii)). However, the
sanitation standards each also require that change rooms contain
separate storage facilities for street clothes and PPE to prevent
cross-contamination (29 CFR 1926.51(i); 29 CFR 1915.88(g)). OSHA finds
that, combined with the requirements in paragraph (h)(2) and (3) of the
beryllium standards regarding the safe removal and cleaning of PPE, the
sanitation standards for construction and shipyards protect against
contamination of required change rooms to the same extent as paragraph
(i).
    Finally, one commenter argued that paragraph (i) must be included
for ``implementation and consistency with other comprehensive health
standards'' (Document ID 2197). However, the commenter did not identify
how relying on the sanitation standards would result in implementation
issues. With respect to consistency, although it is true that some
health standards contain substance-specific hygiene requirements, the
breadth and content of the requirements differ by standard. For
example, the hygiene requirements of the methylene chloride standard
(29 CFR 1926.1152) address only the provision of washing facilities,
while the requirements in other standards, such as the cadmium standard
(29 CFR 1926.1127), contain numerous, more detailed requirements. Other
health standards, such as the standards for vinyl chloride (29 CFR
1926.1117), benzene (29 CFR 1926.1128), and respirable crystalline
silica (29 CFR 1926.1153), contain no substance-specific hygiene
requirements at all and rely solely on the general sanitation standard.
Thus, relying on the sanitation standards rather than beryllium-
specific hygiene requirements will not create inconsistency among
OSHA's comprehensive health standards.
    OSHA has reviewed these comments and the record as a whole and has
decided to follow through with the proposed removal of paragraph (i).
In light of existing OSHA sanitation standards which provide
protections comparable to those in paragraph (i) of the beryllium
standards for construction and shipyards and the trace quantities of
beryllium present in these industries (or, in the case of welding
operations, the lack of skin or surface contamination), OSHA has
determined that additional, beryllium-specific hygiene requirements
will not materially increase protections for workers in these
industries. Accordingly, the agency is removing former paragraph (i)
from the construction and shipyard standards. By doing so, OSHA intends
to tailor the beryllium standards for construction and shipyards to
ensure they are no more complicated or onerous than necessary to
appropriately protect workers, thereby improving compliance.

Paragraph (j) Housekeeping

    In this final rule, paragraph (j) of the construction and shipyards
standards mandates several housekeeping requirements aimed at reducing
workers' airborne exposure to beryllium. Paragraph (j)(1) requires
employers to use cleaning methods that minimize the likelihood and
level of airborne exposure to beryllium when cleaning up dust resulting
from operations that cause, or can reasonably be expected to cause,
airborne exposure above the TWA PEL or STEL. Paragraph (j)(2) prohibits
dry sweeping or brushing for cleaning up dust from operations that
cause, or can reasonably be expected to cause, airborne exposure above
the TWA PEL or STEL unless other methods that minimize the likelihood
and level of airborne exposure are not safe or effective. Paragraph
(j)(3) prohibits the use of compressed air for cleaning if its use

causes, or can reasonably be expected to cause, airborne exposure above
the TWA PEL or STEL. Paragraph (j)(4) requires respirator use and
personal protective clothing and equipment where employees use dry
sweeping, brushing, or compressed air to clean. Finally, paragraph
(j)(5) requires cleaning equipment to be handled and maintained in a
manner that minimizes the likelihood and level of airborne exposure and
re-entrainment of airborne beryllium in the workplace.
    This final rule includes several changes from paragraph (j) as
promulgated in the 2017 final rule. As OSHA explained in the proposal,
the agency acknowledged in the 2017 final rule that different
approaches may be warranted for the housekeeping provisions for
construction and shipyards than for general industry due to the nature
of the materials and identified work processes with beryllium exposure
in construction and shipyards (82 FR at 2690). OSHA recognized that
beryllium exposure in these industries is limited primarily to abrasive
blasting in construction and shipyards and a small number of welding
operations in shipyards (Document ID 2042, FEA Chapter III, pp. 103-11
and Table III-8e). While the extremely high airborne dust exposures
during abrasive blasting operations can expose workers to beryllium in
excess of the PEL, slag-based abrasive media contains only trace
amounts of beryllium (Document ID 2042, FEA Chapter IV, p. 612).
Moreover, the record before the agency contains evidence of beryllium
exposure during only limited welding operations in shipyards (Document
ID 2042, FEA Chapter III, Table III-8e). Nonetheless, in the 2017 final
rule, OSHA applied most of the same requirements to these industries as
to general industry,\31\ where the operations with beryllium exposure
are significantly more varied and employees are exposed to materials
with significantly higher beryllium content.
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    \31\ Due to the transient nature of the work processes in
construction and shipyards and the fact that most of the work occurs
outside, OSHA decided not to require employers in these industries
to maintain all surfaces as free as practicable of beryllium, as it
had done in general industry. Rather, the agency required employers
in these industries to follow their written exposure control plan
when cleaning beryllium-contaminated areas (82 FR at 2690).
---------------------------------------------------------------------------

    Since publication of the 2017 final rule, OSHA has undertaken
several additional rulemaking efforts affecting the beryllium standards
for construction and shipyards. OSHA clarified in the beryllium general
industry DFR that the agency only intended to regulate contact with
trace beryllium to the extent that it caused airborne exposures of
concern. OSHA explained that the agency never intended for provisions
aimed primarily at protecting workers from the effects of dermal
contact to apply in the case of materials containing only trace amounts
of beryllium (83 FR at 19938).
    OSHA also published its 2017 proposal to revoke the ancillary
provisions of the construction and shipyards beryllium standards in
light of overlap with existing OSHA standards applicable to these
sectors (82 FR 29182). With respect to the housekeeping provisions of
paragraph (j), OSHA identified existing standards that at least
partially duplicated the requirements of the beryllium standards.
Specifically, OSHA cited the construction ventilation standard, which
requires that dust not be allowed to accumulate outside abrasive
blasting enclosures and that spills be cleaned up promptly (29 CFR
1926.57(f)(7)). OSHA also identified certain provisions of OSHA's
general ventilation standard for abrasive blasting (29 CFR 1910.94(a)),
which apply to abrasive blasters in shipyards, and require that dust
must not be permitted to accumulate on the floor or on ledges outside
of an abrasive-blasting enclosure, and dust spills must be cleaned up
promptly. (29 CFR 1910.94(a)(7)). Although OSHA ultimately determined
that existing standards did not duplicate all of the requirements of
paragraph (j), the agency acknowledged that certain revisions may be
appropriate to account for partial overlap in these standards (84 FR at
51378).
    In the 2019 NPRM, OSHA announced that it was reconsidering its
approach to the housekeeping provisions in the construction and
shipyards standards based primarily on two rationales. First, OSHA
preliminarily determined that skin or surface contamination in the
absence of significant airborne exposures is not an exposure source of
concern in the operations with known beryllium exposure in the
construction and shipyards sectors; that is, abrasive blasting with
material containing trace quantities of beryllium and limited welding
operations in shipyards. Second, OSHA preliminary determined that
partial overlap between paragraph (j) and existing OSHA standards made
certain revisions to these requirements appropriate (84 FR at 53916-
17). Accordingly, OSHA proposed a number of changes to paragraph (j) in
both standards.
    First, OSHA proposed to remove paragraph (j)(1), which required
employers to follow the written exposure control plan in paragraph (f)
when cleaning beryllium-contaminated areas and to ensure that spills
and emergency releases of beryllium are cleaned up promptly and in
accordance with the written exposure control plan (84 FR at 53917).
OSHA explained that routine general housekeeping and housekeeping
related to spills are adequately covered by the existing ventilation
standard for construction (29 CFR 1926.57(f)(7)) and OSHA's general
ventilation standard (29 CFR 1910.94(a)) applicable to shipyards (84 FR
at 53917). OSHA also explained that because the housekeeping provisions
are triggered by only one operation (abrasive blasting) using materials
with trace amounts of beryllium and the main objective of these
provisions is to minimize airborne exposure, a unique written plan for
how to clean is unnecessary in this context. OSHA noted that this is in
contrast to general industry, where there is the concern for protecting
workers from both airborne exposures and dermal contact over a variety
of beryllium-containing materials and processes and where employers may
need to have more complicated or unique cleaning procedures to
adequately protect workers. Finally, with respect to emergency releases
of beryllium, OSHA elsewhere in the proposal preliminarily determined
that the operations with beryllium exposure in the construction and
shipyards sectors do not have emergencies in which exposures differ
from the normal conditions of works (see 84 FR at 53909), rendering
housekeeping procedures specific to emergency releases unnecessary.
    OSHA also proposed revising paragraph (j)(2), which addressed the
use of cleaning methods that minimize the likelihood and level of
airborne exposure, the use of dry sweeping, brushing and compressed air
for cleaning, the use of respiratory protection and personal protective
equipment when employing certain types of cleaning methods, and
handling and maintaining cleaning equipment (84 FR at 53917). The first
proposed revision relates to paragraph (j)(2)(i), renumbered as (j)(1),
which required the use of HEPA-filtered vacuuming or other methods that
minimize the likelihood and level of airborne exposure when cleaning in
beryllium-contaminated areas. The second proposed revision relates to
paragraph (j)(2)(ii), renumbered as (j)(2), which prohibited dry
sweeping or brushing for cleaning in beryllium-contaminated areas
unless HEPA-filtered vacuuming or other methods that minimize the

likelihood and level of airborne exposure are not safe or effective.
    In both paragraphs, OSHA proposed replacing the phrase ``cleaning
in beryllium-contaminated area'' with ``cleaning up dust resulting from
operations that cause, or can reasonably be expected to cause, airborne
exposure above the TWA PEL or STEL'' (84 FR at 53917). In the 2018 DFR,
OSHA clarified the general industry beryllium standard by defining
``contaminated with beryllium'' and ``beryllium-contaminated'' as
contaminated with dust, fumes, mists, or solutions containing beryllium
in concentrations greater than or equal to 0.1 percent by weight; a
condition not applicable to abrasive blasting operations in
construction and shipyards (84 FR at 53917; 83 FR at 19939-40). Because
the agency preliminarily determined that there are no operations
covered by the construction or shipyard beryllium standards that would
create such a beryllium-contaminated surface, the agency proposed to
revise these portions of renumbered paragraphs (j)(1) and (2). OSHA
explained that the agency intends these provisions to apply where
workers are either working in regulated areas in shipyards or in areas
with exposures above the TWA PEL or STEL in construction. As such, OSHA
preliminarily determined that the presence of dust produced by
operations that cause, or can reasonably be expected to cause, airborne
exposure above the TWA PEL or STEL is a more appropriate trigger for
these requirements (84 FR at 53917).
    OSHA also proposed to remove the references to ``HEPA-filtered
vacuuming'' in renumbered paragraphs (j)(1) and (2) and instead to
refer simply to methods that minimize the likelihood and level of
airborne exposure. OSHA explained that in abrasive blasting operations,
where large amounts of dust are generated, the use of such vacuums may
be problematic due to filter overload and clogging which may cause
additional exposures (84 FR at 53917). Because the use of HEPA-filtered
vacuums may not be appropriate in abrasive blasting operations, OSHA
proposed to revise paragraph (j) of both standards to remove the
references to such vacuums.
    OSHA next proposed to revise paragraph (j)(2)(iii), renumbered as
paragraph (j)(3), which prohibited the use of compressed air for
cleaning in beryllium-contaminated areas unless the compressed air is
used in conjunction with a ventilation system designed to capture the
particulates made airborne by the use of compressed air (84 FR at
53917). OSHA again proposed to remove the reference to ``beryllium-
contaminated areas'' for reasons already discussed. OSHA also proposed
to prohibit the use of compressed air for cleaning where its use
causes, or can reasonably be expected to cause, airborne exposure above
the TWA PEL or STEL, without reference to the use of ventilation. OSHA
explained that in the 2017 final rule, the agency determined that the
use of compressed air might occasionally be necessary in general
industry (84 FR at 53918; see 82 FR at 2693). Similarly, for
construction and shipyards, OSHA intended at the time to prohibit the
use of compressed air during cleaning of beryllium contaminated areas
or materials designated for recycling or disposal unless used in
conjunction with a ventilation system (84 FR at 53918). In the
proposal, OSHA stated that the agency was now reconsidering the
practicality of using ventilation with compressed air when cleaning
areas with copious amounts of dust produced during abrasive blasting at
construction and shipyard sites. Instead, OSHA proposed to limit the
use of compressed air to circumstances in which there is a limited
quantity of dust, which, if re-entrained, would not result in exposures
above the TWA PEL or STEL (84 FR at 53918).
    OSHA next proposed revising paragraph (j)(2)(iv), renumbered as
paragraph (j)(4), which addressed respirator use and personal
protective clothing and equipment where employees use dry sweeping,
brushing, or compressed air to clean in beryllium-contaminated areas.
OSHA again proposed to remove the reference to ``beryllium-contaminated
areas'' for reasons already discussed and to instead simply require the
use of respiratory protection and PPE ``in accordance with paragraphs
(g) and (h)'' when dry sweeping, brushing, or compressed air is used
(84 FR at 53918).
    Finally, OSHA proposed removing the disposal provision in paragraph
(j)(3), which required that, when transferring beryllium-containing
materials to another party for use or disposal, employers must provide
the recipient a copy of the warning label required by paragraph (m) (84
FR at 53918). Separately in the proposal, OSHA proposed removing the
labeling requirement in paragraph (m) altogether. OSHA explained that
all beryllium-containing materials in the shipyard and construction
industries contain or produce only trace amounts of beryllium.
Accordingly, OSHA explained, this revision is consistent with OSHA's
intention, explained in the 2018 DFR, that provisions aimed at
protecting workers from the effects of dermal contact should not apply
to materials containing only trace amounts of beryllium, such as
abrasive blasting media, unless those workers are also exposed to
airborne beryllium at or above the action level (84 FR at 53918; see 83
FR at 19940). OSHA further explained that the revision aligns with the
housekeeping requirements of the general industry beryllium standard
(as modified by the DFR), which does not require labeling for materials
that contain only trace quantities of beryllium and are designated for
disposal, recycling, or reuse (84 FR at 53918). OSHA emphasized that
these materials must still be labeled according to the Hazard
Communication standard (29 CFR 1910.1200) and, if appropriate, the
hazards of beryllium must be addressed on the label and Safety Data
Sheet (SDS) (84 FR at 53918).\32\ For additional discussion on labeling
requirements, see the Summary and Explanation for paragraph (m).
---------------------------------------------------------------------------

    \32\ OSHA also proposed some minor, non-substantive changes to
paragraph (j), including renumbering existing paragraph (j)(2)(v) as
paragraph (j)(5) and removing the heading for ``Cleaning Methods''
to refer to these requirements only as ``Housekeeping'' (84 FR at
53918, FN 8). OSHA received no comments on these changes and is
finalizing them as proposed.
---------------------------------------------------------------------------

    Some commenters disagreed with the proposed changes to paragraph
(j) in both comments submitted to the record and in testimony at the
public hearing. Many reiterated in their comments that they believe
that workers in the construction and shipyard industries are exposed
during activities other than abrasive blasting and welding, some of
which may involve beryllium in greater-than-trace amounts. These
commenters included AFL-CIO (Document ID 2210, p. 9), NJH (Document ID
2211, p. 11), NABTU (Document ID 2240, p. 9), ACOEM (Document ID 2213,
p. 3), and certain members of Congress (Document ID 2208, p. 6). As in
other areas of their comments, these commenters identified additional
operations that they believe involve beryllium exposure, primarily the
dressing of non-sparking tools and construction, maintenance,
decommissioning, and demolition work at beryllium-processing
facilities. With respect to the requirements of paragraph (j), some of
these commenters argued that the potential for additional exposures in
these operations counsel against removing any housekeeping
requirements--but particularly those aimed at addressing dermal contact
with beryllium--to tailor these standards to abrasive blasting and
welding operations.

    OSHA has addressed commenters' concerns regarding additional
sources of exposure previously in this preamble in the Summary and
Explanation for paragraph (f) and refers readers to that discussion. To
summarize, although OSHA acknowledges the potential for exposures
beyond abrasive blasting and welding operations, the record continues
to lack sufficient data for the agency to characterize the nature,
locations, or extent of beryllium exposure in application groups other
than abrasive blasting and certain welding operations. Further, the
agency has reason to believe that any additional exposures that may
occur do not present a dermal contact risk in these sectors. As a
result, OSHA finds that it is appropriate to further tailor certain
provisions of the beryllium standards for construction and shipyards--
including the housekeeping requirements--to those operations for which
the agency has data; that is, abrasive blasting operations with
material containing trace amounts of beryllium and limited welding
operations where dermal contact is not an exposure source of concern.
    NABTU specifically urged OSHA to retain paragraph (j)(1), which
requires employers to follow their written exposure control plans when
cleaning beryllium-contaminated areas and dealing with spills and
emergency releases. According to NABTU, OSHA's determination that the
only sources of contamination with which employers need be concerned
come from abrasive blasting is incorrect and therefore the ventilation
standard for construction (29 CFR 1926.57(f)(7)) does not provide
adequate coverage (Document ID 2240, p. 9). Similarly, AFL-CIO
disagreed with the proposed removal of this paragraph stating that the
existing ventilation standards for construction and shipyards are not
effective at addressing the toxicity of beryllium (Document ID 2210,
pp. 8-9; 2222, Tr. 116-17).
    OSHA has determined that in the context of the known exposures in
construction and shipyards sectors, the previous requirements of
paragraph (j)(1) do not meaningfully increase protections for workers
beyond those provided by existing OSHA standards. As stated above, the
ventilation standards for construction (29 CFR 1926.57(f)(7)) and
general industry (29 CFR 1910.94(a)(7)), applicable to shipyards, both
require that spills must be cleaned up promptly, just as required by
paragraph (j)(1) of the beryllium standards. Further, beyond the
requirements of paragraph (j)(1), these standards specifically require
that the employer not permit dust to accumulate outside of the abrasive
blasting enclosure. These standards, in conjunction with the other
provisions in paragraph (j) that serve to further reduce the potential
for exposures above the PEL or STEL, provide the appropriate level of
protection for workers in these sectors. Further, in light of the
limited operations with beryllium exposure in these sectors, OSHA has
determined that paragraph (j) provides sufficient guidance for
employers on the limited circumstances in which they are allowed to use
cleaning methods such as dry sweeping and compressed air, making a
unique written plan for how to clean unnecessary in this context.
Accordingly, the agency is removing from paragraph (j) the requirement
for employers to follow the written exposure control plan in paragraph
(f) when cleaning beryllium-contaminated areas and to ensure that
spills and emergency releases of beryllium are cleaned up promptly and
in accordance with the written exposure control plan.
    AFL-CIO disagreed with what it framed as OSHA's decision to trigger
the use of cleaning methods on exposures above the PEL or STEL instead
of ``a more conservative trigger of beryllium-contamination,'' claiming
the agency is ignoring the risk of health effects at exposures below
the PEL (Document ID 2210, p. 9). First, OSHA notes that AFL-CIO
misstates the revised trigger for paragraph (j)'s cleaning
requirements. OSHA intentionally drafted the requirement to use
cleaning methods that minimize the likelihood and level of airborne
exposure (renumbered paragraph (j)(1)) and the prohibition on dry
sweeping or brushing (renumbered paragraph (j)(2)) to apply whenever an
employer ``cleans up dust resulting from'' operations that cause, or
can reasonably be expected to cause, airborne exposure above the TWA
PEL or STEL. As explained above, OSHA intends these provisions to apply
where workers are either working in regulated areas in shipyards or in
areas with exposures above the TWA PEL or STEL in construction.
However, the requirements apply to cleaning up dust in these areas
regardless of whether the operation that produced the dust is being
performed at the time of the cleaning. In other words, cleaning methods
are tied to the location of operations and are not triggered on active
exposure above the TWA PEL or STEL, as AFL-CIO suggests. And although
revised paragraph (j)(3) prohibits the use of compressed for cleaning
when its use can reasonably be expected to cause airborne exposure
above the PEL or STEL, compressed air would not satisfy paragraph
(j)(1)'s requirement for the use of cleaning methods that minimize
airborne exposure unless other more effective methods were infeasible.
    Further, in the general industry DFR, OSHA revised the definitions
of ``contaminated with beryllium'' and ``beryllium-contaminated'' to
clarify that these terms refer to contamination with dust, fumes,
mists, or solutions containing beryllium in concentrations greater than
or equal to 0.1 percent by weight (83 FR at 19939-40). OSHA reiterates
the agency's determination that beryllium contamination, as the agency
defines it, does not occur from the trace quantities of beryllium used
in abrasive blasting. OSHA has likewise determined that welding
operations in shipyards do not produce this sort of skin or surface
contamination. If OSHA maintained the term ``beryllium-contaminated''
in paragraph (j), the requirements for when and how employers can use
dry sweeping, brushing, or compressed air, or when they must employ
cleaning methods that minimize airborne exposure, would likely never be
triggered and workers already exposed would not receive the benefit of
these protections. For this reason, OSHA has determined that it is more
appropriate to trigger these requirements on the presence of dust
produced by an operation that causes, or can reasonably be expected to
cause, airborne exposure above the TWA PEL or STEL.
    AFL-CIO also indicated that they opposed OSHA's proposal ``to
remove the requirement for `HEPA filtered vacuuming' '' in renumbered
paragraphs (j)(1) and (2) and questioned the agency's preliminary
determination that such methods may be problematic due to overloading
and clogging of the filters (Document ID 2210, p. 8). AFL-CIO contended
that HEPA-filtered vacuuming is commonly used and required in other
OSHA dust standards and that the record shows this method is the most
effecting and safe way to clean toxic dusts and therefore should be
used (Document ID 2210, pp. 8-9). OSHA disagrees with AFL-CIO's
interpretation that OSHA is removing a requirement to use HEPA-filtered
vacuuming. Paragraph (j) has never required the use of HEPA-filtered
vacuuming, but instead required the use of HEPA-filtered vacuuming ``or
other methods that minimize the likelihood and level of airborne
exposure.'' The proposed change removed the specific reference to HEPA-
filtered vacuuming while maintaining the requirement that employers
utilize cleaning methods that

minimize the likelihood and level of airborne exposure. OSHA has always
intended this requirement to be performance-oriented (see 82 FR at
2691). Further, in the 2017 final rule, OSHA acknowledged that
``methods that minimize the likelihood and level of airborne exposure
other than HEPA vacuuming may be appropriate for use in construction
and shipyards'' (82 FR at 2693). Alternative methods that are effective
in minimizing the likelihood and level of airborne exposure can include
the use of dust suppressants and wet methods such as wet sweeping or
wet shoveling (see 82 FR at 2693).
    Moreover, revised paragraphs (j)(1) and (2) do not preclude the use
of HEPA-filtered vacuuming for cleaning. Removing this reference simply
eliminates any misunderstanding that HEPA-filtered vacuuming is
required (as AFL-CIO misinterpreted), particularly where HEPA-filtered
vacuuming proves problematic for the particular situation involving the
cleanup. Specifically, as OSHA noted in the proposal, abrasive blasting
operations produce large amounts of spent abrasive and particulate and
the use of HEPA vacuums to clean up these materials may result in
continual filter overload and clogging. Constant cleaning of these
filters could in fact cause additional exposures. OSHA has determined
that removing the specific reference to HEPA-filtered vacuuming while
continuing to allow its use is the appropriate approach for the
construction and shipyards sectors.
    The CISC expressed concern about OSHA's inclusion of restrictions
on the use of dry sweeping and brushing for cleaning materials that
contain beryllium (Document ID 2203, pp. 16-17). CISC asserted that
employers will need to ``assess the extent of naturally occurring
beryllium in numerous construction materials to determine whether and
how the restriction would apply'' (Document ID 2203, p. 17). OSHA
disagrees with this perceived consequence of prohibiting the use of dry
sweeping and brushing. These restrictions apply only when cleaning up
dust from operations that cause, or can reasonably be expected to
cause, airborne exposure above the TWA PEL or STEL (29 CFR
1926.1124(j)(2)). As explained elsewhere in this preamble, there is no
evidence in the record demonstrating that naturally occurring beryllium
in common construction materials at the typical construction site
create exposures of concern, as CISC suggest. OSHA addresses similar
assertions by CISC regarding trace amounts of naturally occurring
beryllium in the Summary and Explanation for paragraph (f).
    After reviewing these comments and considering the record as a
whole, OSHA has determined the proposed changes addressing the use of
cleaning methods and prohibiting dry sweeping or brushing will protect
workers from exposure to beryllium during cleaning operations and bring
clarity to the requirements of these provisions. Therefore, OSHA is
adopting the changes to renumbered paragraphs (j)(1) and (2) as
proposed.
    AFL-CIO also raised concerns that revised paragraph (j)(3) only
prohibits the use of compressed air for cleaning when the use causes,
or can reasonably be expected to cause, exposures above the PEL or STEL
(Document ID 2210, p. 9). AFL-CIO stated that it is a significant
deviation from the current provision, which prohibits compressed air
unless combined with a ventilation system. In response to OSHA's
preliminary determination that ventilation may be impractical in very
dusty environments like those created by abrasive blasting operations,
AFL-CIO argued that the agency has not demonstrated that the use of
ventilation is infeasible or that the requirement for engineering
controls should be removed, ``relying only on the use of respirators .
. . , ignoring the hierarchy of controls'' (Document ID 2210, p. 9).
Finally, AFL-CIO states that OSHA previously determined that
prohibiting compressed air unless combined with ventilation was a
practical and feasible approach in dusty environments, and that this
provision is included in other dust standards (Document ID 2210, p. 9).
    First, OSHA believes that ALF-CIO has misunderstood the hierarchy
of the housekeeping provisions. The housekeeping requirements in
paragraph (j) are triggered when workers clean up dust resulting from
operations that cause, or are reasonably expected to cause, airborne
exposure above the TWA PEL or STEL. Under paragraph (j)(1), when
cleaning in these areas employers must ensure the use of methods that
minimize the likelihood and level of airborne exposures. As explained
above, the use of compressed air does not satisfy this requirement
unless other more effective measures are infeasible. Following the
hierarchy of controls, only after other methods that minimize exposures
are shown to be ineffective or unsafe can the employer use methods such
as dry sweeping, brushing, or compressed air, and then must provide and
ensure the use of respiratory protection and PPE during these
activities under paragraph (j)(4). Even so, under revised paragraph
(j)(3), compressed air is entirely prohibited when its use causes, or
can reasonably be expected to cause, airborne exposure above the TWA
PEL or STEL.
    OSHA further notes that the evidence in the record demonstrates
that abrasive blasting helpers, those responsible for cleaning up spent
abrasive, largely have minimal exposure to beryllium. As explained in
the Technological Feasibility chapter of the 2017 final rule Final
Economic Analysis (FEA), of the 30 abrasive blasting cleanup workers in
the exposure profile of the FEA, two had exposures over the new PEL of
0.2 mg/m\3\. One cleanup worker had an 8-hour TWA sample result of 1.1
mg/m\3\, but blasting took place in the area during this worker's
cleanup task and it is likely that the nearby abrasive blasting
contributed to the sample result. The other cleanup worker had a sample
result of 7.4 mg/m\3\, but that worker's exposure appears to be
associated with the use of compressed air for cleaning in conjunction
with nearby abrasive blasting (82 FR at 29197). This supports OSHA's
determination that the use of compressed air can cause exposure over
the PEL or STEL and, in this case, this activity would have been
prohibited under revised paragraph (j)(3).
    After reviewing these comments and considering the record as a
whole, OSHA finds the proposed change prohibiting the use of compressed
air for cleaning where its use causes, or can reasonably be expected to
cause, airborne exposure above the TWA PEL or STEL will limit the use
of compressed air, such as when other methods are not feasible or
effective. Also, by requiring respirator use and personal protective
clothing and equipment where employees use dry sweeping, brushing, or
compressed air to clean will protect workers from exposure to beryllium
in circumstances when there is no feasible, alternative methods for
cleaning. Therefore, OSHA is adopting the changes to paragraphs (j)(3)
and (4) as proposed.
    AFL-CIO also disagreed with OSHA's proposal to eliminate former
paragraph (j)(3), which required the employer to provide a copy of the
warning described in paragraph (m)(2) whenever it transferred materials
containing beryllium to another party for use or disposal. AFL-CIO
asserted that removing this provision would result in beryllium
exposure to downstream employers and workers (Document ID 2210, p. 9).
AFL-CIO indicated their belief that OSHA's general hazard
communications standard (HCS) is not sufficient to protect downstream
recipients of waste materials.

    As explained in the Summary Explanation for paragraph (m), OSHA
proposed to remove the labeling requirements in paragraph (m), such as
the label referenced in paragraph (j)(3), to account for the trace
amounts of beryllium encountered in the construction and shipyards
sectors and to align these standards with the general industry
beryllium standard, which does not require the labeling of material
containing less than 0.1 percent beryllium by weight. OSHA reiterates
its finding that the known exposures in these sectors are limited to
materials containing beryllium in trace quantities and do not present a
risk from dermal contact. Further, there is no evidence in the record
that downstream recipients of these materials are at risk of airborne
exposure above the PEL or STEL from the trace amounts of beryllium in
these materials.
    Moreover, OSHA explained in the NPRM that abrasive blasting media
is often contaminated with several toxic chemicals such as hexavalent
chromium or lead from the blasted substrate or coating on the substrate
(84 FR at 53918; see OSHA Fact Sheet, Protecting Workers from the
Hazards of Abrasive Blasting Materials, available at https://www.osha.gov/Publications/OSHA3697.pdf). AFL-CIO itself identified
lead, cadmium, and arsenic as hazards associated with abrasive blasting
operations (Document ID 2244, p. 11). OSHA remains concerned that
providing warnings specific to beryllium for materials that contain
trace beryllium and where airborne exposures are not anticipated to be
significant may overshadow or dilute hazard warnings for other
substances that do present a risk in this context. Neither AFL-CIO nor
any other commenter contradicted this concern. OSHA finds that the
general HCS requirements provide the appropriate information for spent
abrasive blasting media containing only trace amounts of beryllium,
where the material may be contaminated with several other toxic
substances. Accordingly, OSHA is finalizing its proposal to remove
former paragraph (j)(3) from the construction and shipyards standards.
    In conclusion, based on the record as a whole OSHA is finalizing
paragraph (j) as proposed.

Paragraph (k) Medical Surveillance

    Paragraph (k) of the beryllium standard for construction and
shipyards addresses medical surveillance requirements. The paragraph
specifies which employees must be offered medical surveillance, as well
as the frequency and content of medical examinations. It also sets
forth the information that must be provided to the employee and
employer. The purposes of medical surveillance for beryllium are (1) to
identify beryllium-related adverse health effects so that appropriate
intervention measures can be taken; (2) to determine if an employee has
any condition that might make him or her more sensitive to beryllium
exposure; and (3) to determine the employee's fitness to use personal
protective equipment, such as respirators. The inclusion of medical
surveillance in the beryllium standards for the construction and
shipyard industries is consistent with Section 6(b)(7) of the OSH Act
(29 U.S.C. 655(b)(7)), which requires that, where appropriate, medical
surveillance programs be included in OSHA health standards to aid in
determining whether the health of employees is adversely affected by
exposure to the hazards addressed by the standard.
    In the 2019 NPRM, OSHA proposed several revisions to paragraph (k).
First, OSHA proposed removing paragraph (k)(1)(i)(C), which requires
medical surveillance after exposure to beryllium during an emergency,
to coincide with the removal of the term ``emergency'' from the
standards (84 FR at 53918-19). Second, OSHA proposed minor revisions to
paragraphs (k)(3)(ii)(A) and (k)(4)(i) to replace the phrase ``airborne
exposure to and dermal contact with beryllium'' in these provisions
with the simpler phrase ``exposure to beryllium'' (84 FR at 53919).
Finally, OSHA proposed two revisions to paragraph (k)(7)(i) to make it
consistent with recent changes to the beryllium general industry
standard \33\ (84 FR at 53919).
---------------------------------------------------------------------------

    \33\ OSHA also proposed a number of minor, non-substantive edits
to paragraph numbering and references to account for the addition of
a new paragraph (k)(7)(ii).
---------------------------------------------------------------------------

    With respect to OSHA's proposal to remove paragraph (k)(1)(i)(C),
as discussed previously in the Summary and Explanation for paragraph
(b), OSHA proposed to remove references to emergencies in the shipyards
and construction standards because OSHA expects that any emergency in
these industries (such as a release resulting from a failure of the
blasting control equipment, a spill of the abrasive blasting media, or
the failure of a ventilation system during welding operations in
shipyards) would occur only during the performance of routine tasks
already associated with the airborne release of beryllium; i.e., during
the abrasive blasting or welding process. Therefore, employees would
already be protected from exposure in such circumstances. Accordingly,
OSHA preliminarily determined that no requirements should be triggered
for emergencies in construction and shipyards and proposed to remove
references to emergencies in provisions related to respiratory
protection, paragraph (g); medical surveillance, paragraph (k); and
hazard communication, paragraph (m). The agency also preliminarily
determined that without these provisions it would be unnecessary to
define the term emergency in paragraph (b) (84 FR at 53909).\34\
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    \34\ Due to the removal of paragraph (k)(1)(i)(C), OSHA is also
adding the word ``or'' at the end of paragraph (k)(1)(i)(B)
(following the semi-colon); removing a reference to paragraph
(k)(1)(i)(C) from paragraph (k)(2)(i)(B); and redesignating
paragraph (k)(1)(i)(D) as paragraph (k)(1)(i)(C). Consistent with
that redesignation, OSHA is replacing the reference to paragraph
(k)(1)(i)(D) in paragraph (k)(2)(ii) with a reference to paragraph
(k)(1)(i)(C).
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    Some commenters objected to the proposed removal of provisions
relating to emergencies. Specifically, these commenters took issue with
OSHA's preliminary determination that an uncontrolled release of
beryllium in the construction and shipyards industries would not create
exposures that differ from normal operations. For a full discussion of
these comments and the agency's response, see the Summary and
Explanation for paragraph (g). In short, the agency is not persuaded
that the types of uncontrolled releases that necessitated emergency
provisions in the general industry standard are present in the
construction and shipyards industries. Accordingly, OSHA is finalizing
its proposal to remove all references to ``emergency'' or
``emergencies'' throughout the construction and shipyards standards.
Because those terms no longer appear in the standards' requirements,
OSHA is also finalizing its proposal to remove the definition of the
term ``emergency'' from paragraph (b).
    AFL-CIO, NABTU, and NJH specifically commented on the proposed
removal of the emergency exposure trigger for a medical examination in
paragraph (k). AFL-CIO opposed the removal of the emergency provisions
and argued that medical surveillance should be required following an
emergency (Document ID 2210, p. 9). NABTU commented that a failure of a
containment used for abrasive blasting would be considered an emergency
(Document ID 2222, Tr. 85-86, 91-92). NABTU also noted situations where
construction workers could experience emergency exposures to beryllium
in manufacturing and processing facilities, and it urged OSHA to retain
the

definition for emergency and other related protections, such as the
trigger for an emergency examination. (Document ID 2240, p. 7). NABTU
also commented that questions about emergency exposures should ``be
included in the medical and work histories, to ensure that pertinent
information about potential exposures is not overlooked.'' (Document ID
2240, p. 8). In contrast, NJH agreed with OSHA that emergencies might
not occur, but recommended that if the trigger for emergency exposure
is removed, any exposure above the PEL should trigger medical
surveillance (Document ID 2211, p. 11). Specifically, NJH commented:
``Jobs and tasks that would generate beryllium exposure (demolition,
repair, clean up, abrasive blasting, welding, cleaning and grinding of
beryllium containing tools, etc.) may only be done periodically and
meeting the ``30 days over the action level'' in order to qualify for
medical surveillance may not be easy to quantify or may require
extensive recordkeeping as workers move from job to job or contract to
contract. Therefore, any exposures above the PEL should trigger the
medical surveillance and hazard communication provisions.'' (Document
ID 2211, p. 11). Lisa Barker from NJH further testified that persons
who are genetically susceptible can become sensitized from limited
exposures (Document ID 2222, Tr. 56-57).
    As explained in the Summary and Explanation for paragraph (g), OSHA
is not reinstating a definition for emergency, and readers should refer
to that section for a complete explanation. In response to NABTU's
comment that emergency exposures should be included in medical and work
histories, OSHA does not specify the individual questions to include in
a medical and work history. Instead, OSHA simply requires that medical
and work histories include ``past and present exposure to beryllium.''
An unexpected exposure, such as would occur with a containment failure,
would therefore be included in the medical and work history for an
employee who undergoes medical surveillance under the beryllium
standard. In addition, paragraph (k)(4)(i) requires the employer to
inform the PLHCP about former and current levels of airborne exposure.
OSHA would expect the employer to inform the PLHCP if the employee
experienced an incident where he or she was exposed to levels of
beryllium that exceeded the employee's typical exposure levels.
    In response to NJH's suggestion that, if the emergency provision is
removed, OSHA should require medical surveillance for any exposure
above the PEL, OSHA notes that NJH's position is not limited to
exposures in an emergency but to any exposures any exposures above the
PEL that occur for fewer than 30 days. In other words, NJH asks OSHA to
reconsider the appropriateness of the 30-day exposure-duration trigger
generally. OSHA evaluated the appropriateness of the 30-day trigger in
the 2017 final rule. At that time, NJH and other stakeholders opposed
the 30-day exposure-duration trigger for medical surveillance. After
careful consideration of comments and other evidence in the record,
OSHA decided to maintain the 30-day exposure-duration trigger because
it is consistent with the agency's risk assessment showing increasing
risk of health effects from exposure at increasing cumulative
exposures, which considers both exposure level and duration (82 FR at
2528-40, 2698). OSHA found a 30-day trigger to be a reasonable
benchmark for capturing increasing risk from cumulative effects caused
by repeated exposures. Between that rulemaking and the present, OSHA
has not received any additional evidence demonstrating that this
benchmark is inappropriate. Finally, OSHA notes that the 30-day
exposure-duration trigger is consistent with the general industry
beryllium standard and other OSHA health standards, such as the
standards for chromium (VI) (29 CFR 1910.1026), cadmium (29 CFR
1910.1027), lead (29 CFR 1910.1025), asbestos (29 CFR 1910.1001), and
respirable crystalline silica (29 CFR 1910.1053) (82 FR at 2698).
    With respect to NJH's related concern regarding the tracking of
exposures in the construction industry--where tasks may be performed
intermittently at different locations--similar concerns were raised
during the respirable crystalline silica rulemaking. In that
rulemaking, OSHA acknowledged that tracking exposures in construction
can be challenging. However, it pointed to evidence in the record
showing that some construction employers were able to determine which
employees were exposed above the PEL based on employee schedules and
task-based hazard assessments. (81 FR 16285, 16815-16 (March 25,
2016)). Indeed, an employer can determine eligibility for medical
surveillance based on information from exposure assessments for the
various tasks and knowledge about how often the task is performed.
Compliance officers can also determine if employees who were exposed at
or above the action level for 30 or more days a year were not offered
medical surveillance by questioning employees about how often they
perform certain tasks. As such, OSHA finds it is possible to quantify
exposure for employees that are only periodically exposed to beryllium
without extensive recordkeeping. Accordingly, OSHA believes it is
appropriate to maintain the 30-day trigger and that this will not
create undue burdens with respect to recordkeeping.
    Moreover, employees experiencing signs or symptoms or other
beryllium-related health effects after intermittent or unexpected
exposures to beryllium can ask for an examination under paragraph
(k)(1)(i)(B). Paragraph (m)(2)(i)(A) requires the employer to provide
information and training in accordance with the Hazard Communication
Standard (HCS), 29 CFR 1910.1200(h), for each employee who has, or can
reasonably be expected to have, airborne exposure to beryllium.
Paragraph (m)(2)(ii) also requires employers to ensure that these
employees can demonstrate knowledge and understanding of a number of
specified topics, including the signs and symptoms of CBD. Thus,
employees who are intermittently exposed should possess the knowledge
necessary to determine whether they should request an examination. In
summary, OSHA has determined that the evidence presented does not
support reinstating triggers for an emergency exposure or reconsidering
the 30-day exposure-duration as a trigger for medical surveillance.
    The second set of changes that OSHA proposed were minor revisions
to paragraphs (k)(3)(ii)(A) and (k)(4)(i). Paragraph (k)(3)(ii)(A)
previously required the employer to ensure that the employee is offered
a medical examination that includes a medical and work history, with an
emphasis on, among other things, past and present airborne exposure to
or dermal contact with beryllium. Paragraph (k)(4)(i) previously
required the employer to ensure that the examining PLHCP (and the
agreed upon CBD diagnostic center, if an evaluation is required under
paragraph (k)(7) of this standard) had certain information, including a
description of the employee's former and current duties that relate to
the employee's airborne exposure to and dermal contact with beryllium,
if known. In the 2019 NPRM, OSHA proposed to clarify these provisions
by replacing the phrase ``airborne exposure to and dermal contact with
beryllium'' with the simpler phrase ``exposure to beryllium'' (84 FR at
53919). OSHA reasoned that employees with beryllium exposure of any
kind should have access to records of their exposure, and this
information should also be made

available to an examining PLHCP and CBD diagnostic center, if
applicable. OSHA intended for this proposed change to alleviate any
unnecessary confusion created by the use of the term ``dermal
contact,'' which is defined in the general industry standard but not in
the construction and shipyards standards.
    AFL-CIO and NABTU commented on OSHA's proposed changes to
paragraphs (k)(3) and (4). AFL-CIO opposed OSHA's proposed revision to
paragraph (k)(4)(i), arguing that it is important for the physician to
be informed about both airborne and dermal exposures and that removing
that clarification would increase confusion by putting the burden on
the employer and physician to understand OSHA's intent (Document ID
2210, p. 9). In further support of retaining provisions that provide
protection from dermal exposure, AFL-CIO referenced a previous comment
from NABTU stating that the skin should be examined because beryllium
exposure can result in ``skin irritation, skin bumps, and sores that
won't heal.'' (Document ID 2244, pp. 8-9; 1679, Attachment A, p. 1).
NABTU commented that OSHA should retain the ``protections against
airborne exposures'' in paragraph (k)(3) (Document ID 2240, p. 6).
    OSHA clarifies that it does not intend to change the requirements
for the type of information provided to the physician, and if the
employee does have the potential for dermal exposure, the employer is
to provide that information to the physician. OSHA proposed this change
not to limit the type of information provided to physicians, but
instead, to make clear that employers and employees should inform
physicians about any type of beryllium exposure. OSHA continues to
believe that the change will reduce confusion by removing terminology--
the reference to dermal contact--that is not used in the construction
and shipyards standard. In addition, the requirement for the PLHCP to
examine the skin for rashes is retained in paragraph (k)(3)(ii)(C).
Consistent with the 2017 final rule, OSHA continues to believe that it
is important to examine the skin for rashes because it could be a sign
that dermal sensitization or exposures that put the employee at risk of
sensitization have occurred (82 FR at 2471). OSHA disagrees with AFL-
CIO that simplifying the language of these provisions will result in
confusion, because the revised text clearly encompasses all exposure to
beryllium. Accordingly, OSHA has decided to finalize the changes to
paragraph (k)(3)(ii)(A) and (k)(4)(i) as proposed.
    The final set of changes that OSHA proposed to the construction and
shipyard standards' medical surveillance requirements is in paragraph
(k)(7), which contains the requirements for an evaluation at a CBD
diagnostic center. In this final rule, OSHA is amending paragraph
(k)(7) in three ways. First, OSHA is revising paragraph (k)(7)(i) to
require that the evaluation be scheduled within 30 days, and occur
within a reasonable time, of the employer receiving one of the types of
documentation listed in paragraph (k)(7)(i)(A) or (B). Second, OSHA is
adding a provision in paragraph (k)(7)(ii), which clarifies that, as
part of the evaluation at the CBD diagnostic center, the employer must
ensure that the employee is offered any tests deemed appropriate by the
examining physician at the CBD diagnostic center, such as pulmonary
function testing (as outlined by the American Thoracic Society
criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. The
new provision also states that if any of the tests deemed appropriate
by the examining physician are not available at the CBD diagnostic
center, they may be performed at another location that is mutually
agreed upon by the employer and the employee. Third, OSHA is making a
number of minor, non-substantive revisions to the numbering and cross-
references in paragraph (k)(7) to account for the addition of new
paragraph (k)(7)(ii). Specifically, OSHA is renumbering current
paragraphs (k)(7)(ii), (iii), (iv), and (v) as (k)(7)(iii), (iv), (v),
and (vi), respectively, and is adding a reference to new paragraph
(k)(7)(ii) to the newly renumbered paragraph (k)(7)(vi). These proposed
changes are consistent with changes the agency proposed to paragraph
(k)(7)(i) of the beryllium standard for general industry in December
2018.
    Each of these final revisions differ in some way from the proposed
amendments based on stakeholder feedback. With regard to the first
change concerning the timing of the exam, the previous standard
required employers to provide the examination within 30 days of the
employer receiving one of the types of documentation listed in
paragraph (k)(7)(i)(A) or (B). The purpose of the 30-day requirement
was to ensure that employees receive the examination in a timely
manner. However, since the publication of the 2017 final rule,
stakeholders have raised concerns that it is not always possible to
schedule and complete the examination and any required tests within 30
days (84 FR at 53919).
    To address this concern, OSHA proposed that the employer provide an
initial consultation with the CBD diagnostic center, which could occur
via telephone or virtual conferencing methods, rather than the full
evaluation, within 30 days of the employer receiving one of the types
of documentation listed in paragraph (k)(7)(i)(A) or (B). OSHA
explained that providing a consultation before the full examination at
the CBD diagnostic center would demonstrate that the employer made an
effort to begin the process for a medical examination. OSHA also noted
that the proposed change would also (1) allow the employee to consult
with a physician to discuss concerns and ask questions while waiting
for a medical examination, and (2) allow the physician to explain the
types of tests that are recommended based on medical findings about the
employee and explain the risks and benefits of undergoing such testing.
In both the 2019 NPRM for construction and shipyards (84 FR at 53919)
and the 2018 NPRM for general industry (83 FR at 63758), OSHA requested
comments on the appropriateness of providing the initial consultation
within 30 days and on the sufficiency of a consultation via telephone
or virtual conference.
    OSHA received several comments on the proposed changes from NJH,
AFL-CIO, and Materion. NJH commented that an examination at the CBD
diagnostic center should not be required to occur within 30 days of the
referral because openings at clinics may not be available within a 30-
day period (Document ID 2211, p. 12). NJH further noted that ``[i]t is
common practice in most diagnostic centers to schedule specialty exams
within a 3-month window due to the need to coordinate worker time away
from work and home, physician visits, pulmonary function testing, chest
imaging, bronchoscopy and other testing for one clinical evaluation
visit'' (Document ID 2211, p. 12). At the public hearing, NJH testified
that an evaluation can take up to three days when an employee undergoes
procedures such as bronchoscopy because the employee has to be cleared
for testing, undergo testing on the following day, and then spend the
night locally to ensure there are no adverse effects before discharge
(Document ID 2222, Tr. 54).\35\ NJH also

opposed the proposed requirement for a consultation that can be
performed via telephone or virtual conferencing within 30 days of the
employer receiving documentation recommending a referral. NJH
commented: ``A video or phone consultation adds cost and logistics to
scheduling and is not necessary as the PLHCP who sees the employee for
screening provides information on the clinical evaluation. HIPAA
privacy issues of a phone or video conference also exist. A full
clinical evaluation including review of both the available medical and
exposure data and hands-on medical assessment are essential to
providing the best, most efficient care--from a time and financial
perspective.'' (Document ID 2211, pp. 12-13.)
---------------------------------------------------------------------------

    \35\ In response to the 2018 NPRM for general industry, OSHA
received similar comments on the proposed timeline for the
evaluation at the CBD Diagnostic Center from ATS, NJH, and Materion
(Document ID OSHA-2018-0003-0021, p. 3; OSHA-2018-0003-0022, pp. 5-
6; OSHA-2018-0003-0038, p. 34). DOD recommended that the evaluation
at the CBD Diagnostic center be scheduled within seven days
(Document ID OSHA-2018-0003-0029, p. 2), but OSHA found that this
would not give employees enough time to consider obligations and
have discussions with family members. The agency also found the 30-
day trigger to be administratively convenient because it is
consistent with other triggers in the beryllium standard (85 FR
42621).
---------------------------------------------------------------------------

    Lisa Barker from NJH further testified that workers who are
sensitized but feel well may decide to forgo additional testing
following a video consultation (Document ID 2222, Tr. 54-55). These
workers would miss the opportunity to determine if they have the
disease, and if so, receive treatments to slow progression upon initial
confirmation of sensitization (Document ID 2222, Tr. 54-55). NJH also
expressed concerns related to the expertise and availability of a PLHCP
who might perform the consultation and about workers who may not have a
health care provider to facilitate a phone or video consultation
(Document ID 2243, p. 6).
    NJH recommended that the employer be required to schedule the
appointment within 30 days, but that the actual evaluation can take
place beyond 30 days of the confirmed abnormal result (Document ID
2211, p. 13). AFL-CIO agreed with NJH on the proposed timeline for an
evaluation at a CBD diagnostic center (Document ID 2210, p. 9).
Materion agreed with NJH that an evaluation at the CBD diagnostic
center should be scheduled within 30 days after sensitization is
confirmed and documented; however, it noted that employees can withhold
test results from employers (Document ID 2237, p. 5).\36\
---------------------------------------------------------------------------

    \36\ In response to the NPRM for general industry, Materion
found OSHA's proposed change for a consultation with a CBD
diagnostic center more workable than an evaluation at a CBD
Diagnostic Center within 30 days, but similar to the comments
provided for this construction and shipyards NPRM, ATS and NJH
disagreed with the requirement for a consultation (Document ID OSHA-
2018-0003-0038, p. 34; OSHA-2018-0003-0021, p. 3; OSHA-2018-0003-
0022, pp. 5-6).
---------------------------------------------------------------------------

    After considering these comments, OSHA is convinced that scheduling
a phone or virtual consultation with the CDB diagnostic center is an
unnecessary step that adds logistical complications and costs. OSHA
finds that the scheduling approach suggested by NJH addresses both the
logistical difficulties and the timing concerns with respect to the
requirements in the current standard. Moreover, OSHA finds that
employees will have enough information (through trainings under
paragraph (m) and discussions with the PLHCP) to allow them to decide
whether to choose to be evaluated at the CBD diagnostic center without
the need for an additional consultation.\37\ OSHA is therefore amending
paragraph (k)(7)(i) to require that the employer schedule an
examination at a CBD diagnostic center within 30 days of receiving one
of the types of documentation listed in paragraph (k)(7)(i)(A) or (B).
In response to Materion's concern that an employee can choose to
withhold the recommendation for an evaluation at a CBD diagnostic
center from the employer, the paragraph makes clear that the
appointment must be scheduled within 30 days of the ``employer's
receipt'' of the appropriate documentation. That means that the
employer's obligations do not commence until the employer receives the
documentation for an evaluation at a CBD diagnostic center following
the employee's authorization.
---------------------------------------------------------------------------

    \37\ Under paragraph (k)(6)(i)(D), the employer is to ensure
that the PLHCP explains the results of the medical examination to
the employee, including results of tests conducted and medical
conditions related to airborne beryllium exposure that require
further evaluation or treatment.
---------------------------------------------------------------------------

    To achieve the intent of the 2017 final rule and the 2019 NPRM that
evaluation at a CBD diagnostic center occurs in a timely manner, OSHA
is adding that the evaluation must occur within a reasonable time.
Requiring that the evaluation occur within a reasonable time ensures
that the evaluation be done as soon as practicable based upon
availability of openings at the CBD diagnostic center and the
employee's preferences. This revision better addresses OSHA's original
intent that the employee be examined within a timely period, while
providing employees and employers with maximum flexibility and
convenience.
    The second change that OSHA proposed to paragraph (k)(7)(i) relates
to the contents of the examination at the CBD diagnostic center. As
discussed in more detail above, the former definition of CBD diagnostic
center--which stated that the evaluation at the diagnostic center
``must include'' a pulmonary function test as outlined by American
Thoracic Society criteria, bronchoalveolar lavage (BAL), and
transbronchial biopsy--could have been misinterpreted to mean that the
examining physician was required to perform each of these tests during
every clinical evaluation at a CBD diagnostic center. That was not
OSHA's intent. Rather, the agency merely intended to ensure that any
CBD diagnostic center has the capacity to perform any of these tests,
which are commonly needed to diagnose CBD. Therefore, OSHA proposed
revising the definition to clarify that the CBD diagnostic center must
simply have the ability to perform each of these tests when deemed
appropriate.
    To account for that proposed change to the definition of CBD
diagnostic center and to ensure that the employer provides those tests
if deemed appropriate by the examining physician at the CBD diagnostic
center, OSHA proposed expanding paragraph (k)(7)(i) to require that the
employer provide, at no cost to the employee and within a reasonable
time after consultation with the CBD diagnostic center, any of the
three tests mentioned above, if deemed appropriate by the examining
physician at the CBD diagnostic center (84 FR at 53919). OSHA explained
that the revision would also clarify the agency's original intent that,
instead of requiring all three tests to be conducted after referral to
a CBD diagnostic center, the standard would allow the examining
physician at the CBD diagnostic center the discretion to select one or
more of those tests as appropriate (84 FR at 53919).
    OSHA received comments addressing the types of tests that should be
conducted for the evaluation of CBD. NJH commented that at a minimum, a
clinical evaluation for CBD should include ``full pulmonary function
testing (including lung volumes, spirometry and diffusion capacity for