[Federal Register Volume 85, Number 135 (Tuesday, July 14, 2020)]
[Rules and Regulations]
[Pages 42582-42628]
[FR Doc No: 2020-10678]

Vol. 85

Tuesday,

No. 135

July 14, 2020

Part III

Department of Labor

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Occupational Safety and Health Administration

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29 CFR Part 1910

Revising the Beryllium Standard for General Industry; Final Rule

Federal Register / Vol. 85, No. 135 / Tuesday, July 14, 2020 / Rules
and Regulations

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2018-0003]
RIN 1218-AD20

Revising the Beryllium Standard for General Industry

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final rule.

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SUMMARY: OSHA is amending its existing general industry standard for
occupational exposure to beryllium and beryllium compounds to clarify
certain provisions and simplify or improve compliance. The revisions in
this final rule are designed to maintain or enhance worker protections
overall by ensuring that the rule is well understood and compliance is
more straightforward.

DATES: This final rule becomes effective on September 14, 2020.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), OSHA designates
Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety
and Health, to receive petitions for review of the final rule. Contact
the Associate Solicitor at the Office of the Solicitor, Room S-4004,
U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC
20210; telephone:<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT:
    Press inquiries: Mr. Frank Meilinger, OSHA Office of
Communications, Occupational Safety and Health Administration;
telephone:<PHONE_NUMBER>; email<EMAIL_ADDRESS>    General information and technical inquiries: Ms. Maureen Ruskin,
Directorate of Standards and Guidance, Occupational Safety and Health
Administration; telephone:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Events Leading to the Final Rule
III. Legal Considerations
IV. Final Economic Analysis and Regulatory Flexibility Act
Certification (FEA)
V. Office of Management and Budget (OMB) Review Under the Paperwork
Reduction Act of 1995
VI. Federalism
VII. State Plans
VIII. Unfunded Mandates Reform Act
IX. Consultation and Coordination With Indian Tribal Governments
X. Environmental Impacts
XI. Summary and Explanation of the Final Rule
List of Subjects for 29 CFR Part 1910
Authority

Citation Method

    In the docket for this rulemaking found at http://www.regulations.gov, every submission was assigned a document
identification (ID) number that consists of the docket number (OSHA-
2018-0003) followed by an additional four-digit number. For example,
the document ID number for the proposed rule is OSHA-2018-0003-0016.
Some document ID numbers include one or more attachments (see, e.g.,
Document ID OSHA-2018-0003-0026).
    When citing exhibits in the OSHA-2018-0003 docket in this preamble,
OSHA includes the term ``Document ID'' followed by the last four digits
of the document number; the attachment number or other attachment
identifier, if necessary for clarity; and page numbers (designated
``p.'' or ``pp.''). In a citation that contains two or more document ID
numbers, the document ID numbers are separated by semi-colons. For
example, a citation referring to National Jewish Health's comments and
the first attachment to Materion Brush, Inc.'s comments would be
indicated as follows: (Document ID 0022, pp. X-X; 0038-A1, p. X).
    Occasionally this preamble refers to documents located in the
rulemaking dockets that were used for previous beryllium rulemaking
activities, including the 2017 final rule. When citing exhibits in
other dockets, OSHA includes the term ``Document ID'' followed by the
full document number. For example, this preamble cites a publication by
Armstrong et al. (2014), titled ``Migration of beryllium via multiple
exposure pathways among work processes in four different facilities,''
designated Document ID OSHA-H005C-2006-0870-0502.
    The exhibits in the docket (and the other beryllium-rulemaking
dockets cited in this preamble), including public comments, supporting
materials, meeting transcripts, and other documents, are listed on
http://www.regulations.gov. All exhibits are listed in the docket index
on http://www.regulations.gov, but some exhibits (e.g., copyrighted
material) are not available to read or download from that website. All
materials in the docket are available for inspection at the OSHA Docket
Office, Room N-3508, U.S. Department of Labor, 200 Constitution Avenue
NW, Washington, DC 20210; telephone<PHONE_NUMBER>.

I. Executive Summary

    On January 9, 2017, OSHA published a final rule on Occupational
Exposure to Beryllium and Beryllium Compounds (82 FR 2470). This rule
created health standards for beryllium exposure in the general industry
(29 CFR 1910.1024), construction (29 CFR 1926.1124), and shipyards (29
CFR 1915.1024) sectors. On December 11, 2018, OSHA published a Notice
of Proposed Rulemaking (NPRM) in which the agency proposed various
amendments to the beryllium standard for general industry (83 FR
63746). With the proposed revisions, OSHA sought to clarify certain
provisions and simplify or improve compliance with the beryllium
standard for general industry. In this final rule, OSHA is finalizing
the majority of the changes proposed in the NPRM, with some revisions
intended to address concerns raised by stakeholders during the comment
period. OSHA believes that these changes to the standard will maintain
safety and health protections for workers and will further enhance
worker protections by ensuring that the standard is well-understood.
    The changes to the final standard for general industry are fully
discussed in Section XI, Summary and Explanation of the Final Rule.
Broadly, OSHA proposed to add one definition and modify five existing
terms in paragraph (b), Definitions; to amend paragraph (f), Methods of
compliance; paragraph (h), Personal protective clothing and equipment;
paragraph (i), Hygiene areas and practices; paragraph (j),
Housekeeping; paragraph (k), Medical surveillance; paragraph (m),
Communication of hazards; and paragraph (n), Recordkeeping; and to
replace the 2017 final standard's Appendix A with a new appendix
designed to supplement the proposed definition of beryllium work area.
    OSHA is finalizing these provisions as proposed, with the following
exceptions. First, OSHA is revising the definition of confirmed
positive to state that the findings of two abnormal, one abnormal and
one borderline, or three borderline results need to occur from
beryllium lymphocyte proliferation tests (BeLPTs) conducted within a
three-year period. This differs from the definition proposed in the
2018 NPRM, which would have required that any combination of test
results specified in the definition must be obtained within the 30-day
follow-up test period required after a first abnormal or borderline
BeLPT test result. Second, OSHA is modifying the proposed paragraph
(j)(3), which requires employers to take certain actions when

transferring materials that contain at least 0.1 percent beryllium by
weight or that are contaminated with beryllium outside a plant for the
purpose of disposal, recycling, or reuse, to clarify that only
transfers outside of a plant, including between facilities owned by the
same employer, are subject to the labeling requirements of paragraph
(m)(3).
    Third, in paragraphs (k)(2)(iii) and (iv), OSHA is modifying the
proposed provisions pertaining to an employer's obligation to offer a
medical examination after an employee is exposed to beryllium in an
emergency. Fourth, OSHA is amending proposed paragraph (k)(7)(i) to
require that an examination at a chronic beryllium disease (CBD)
diagnostic center be scheduled within 30 days of the employer receiving
certain types of documentation, listed in paragraph (k)(7)(i)(A) and
(B), that trigger evaluation for CBD. OSHA is further revising proposed
paragraph (k)(7) by adding a new provision, 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 and
to state that if any tests deemed appropriate by the 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. For a full explanation of comments received and OSHA's
reasoning for these revisions, see Section XI, Summary and Explanation
of the Final Rule.
    OSHA's examination of the technological and economic feasibility of
this final rule is presented in the Final Economic Analysis and
Regulatory Flexibility Analysis (FEA), in Section IV of this preamble.
As explained there, OSHA finds that none of the revisions would impose
any new employer obligations or increase the overall cost of
compliance, while some of the revisions in this final rule will clarify
and simplify compliance in such a way that results in cost savings.
OSHA also finds that none of the revisions would require any new
controls or other technology. OSHA therefore concludes that the final
rule is both economically and technologically feasible.
    Further, this final rule is considered to be an Executive Order
(E.O.) 13771 deregulatory action. Pursuant to the Congressional Review
Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory
Affairs designated this rule not a ``major rule,'' as defined by 5
U.S.C. 804(2).

II. Events Leading to the Final Rule

    On January 9, 2017, OSHA published the final rule Occupational
Exposure to Beryllium and Beryllium Compounds (2017 final rule) in the
Federal Register (82 FR 2470).\1\ Therein, OSHA concluded that
employees exposed to beryllium and beryllium compounds at the preceding
permissible exposure limits (PELs) were at significant risk of material
impairment of health, specifically chronic beryllium disease (CBD) and
lung cancer. The agency further determined that limiting employee
exposure to an 8-hour time-weighted average (TWA) PEL of 0.2 [micro]g/
m\3\ would reduce this significant risk to the maximum extent feasible.
Therefore, the 2017 final rule adopted a TWA PEL of 0.2 [micro]g/m\3\.
In addition to the revised PEL, the 2017 final rule established a new
short-term exposure limit (STEL) of 2.0 [micro]g/m\3\ over a 15-minute
sampling period and an action level of 0.1 [micro]g/m\3\ as an 8-hour
TWA, along with a number of ancillary provisions intended to provide
additional protections to employees. The ancillary provisions included
requirements for exposure assessment, methods for controlling exposure,
respiratory protection, personal protective clothing and equipment,
housekeeping, medical surveillance, hazard communication, and
recordkeeping that are similar to those found in other OSHA health
standards.
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    \1\ In the 2017 final rule, OSHA issued three separate beryllium
standards--general industry, shipyards, and construction. This final
rule amends only the general industry standard. Therefore, neither
this Events Leading to the Final Rule section nor the remainder of
the preamble will include information about the other two standards.
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    The 2017 final rule went into effect on May 20, 2017, and OSHA
began enforcing the PEL and the general industry standard's provisions
for exposure assessment, respiratory protection, medical surveillance,
and medical removal on May 11, 2018. See Updated Interim Enforcement
Guidance for the Beryllium Standards, available at https://www.osha.gov/laws-regs/standardinterpretations/2018-12-11. The majority
of the general industry standard's other provisions became enforceable
on December 12, 2018, with compliance obligations for showers and
change rooms following on March 11, 2019 (83 FR 39351). OSHA began
enforcing the general industry requirements for engineering controls on
March 10, 2020.
    In response to concerns raised by stakeholders following the
publication of the 2017 final rule, OSHA published a direct final rule
(DFR) in the Federal Register on May 7, 2018 (83 FR 19936), amending
the text of the beryllium standard for general industry to clarify
OSHA's intent with respect to certain terms in the standard, including
the definition of beryllium work area (BWA), the definition of
emergency, and the meaning of the terms dermal contact and beryllium
contamination (see 83 FR at 19938). The DFR also clarified OSHA's
intent with respect to provisions for disposal and recycling and with
respect to provisions that the agency intended to apply only where skin
can be exposed to materials containing at least 0.1% beryllium by
weight (83 FR at 19938). Because the agency did not receive any
significant adverse comments, OSHA published a Federal Register notice
confirming the effective date of the DFR as July 6, 2018, and
withdrawing the companion NPRM (83 FR 31045 (July 3, 2018)).
    On December 11, 2018, OSHA published an NPRM in the Federal
Register (83 FR 63746) in which the agency proposed to further amend
the beryllium standard for general industry.\2\ The proposal sought to
clarify certain provisions-with proposed changes designed to facilitate
application of the standard consistent with the intent of the 2017
final rule-and to simplify or improve compliance, preventing costs that
may flow from misinterpretation or misapplication of the standard. OSHA
requested public comment on the proposed changes and provided
stakeholders 60 days to submit comments. OSHA received 22 comments
before the comment period closed on February 11, 2019.
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    \2\ OSHA stated in the NPRM that the agency believed that the
standard as modified by the proposal would provide equivalent
protection to the existing standard; and OSHA would therefore accept
compliance with the standard, as modified by the proposal, as
compliance with the standard while the rulemaking was pending.
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III. Legal Considerations

    The purpose of the Occupational Safety and Health Act of 1970
(``the OSH Act'' or ``the Act''), 29 U.S.C. 651 et seq., is to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources. 29
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary
of Labor (``the Secretary'') to promulgate occupational safety and
health standards pursuant to notice and comment rulemaking. See 29
U.S.C. 655(b). An occupational safety or health standard is a standard
which requires conditions, or the adoption or use of one or more
practices, means, methods, operations, or processes, reasonably
necessary or appropriate to provide safe

or healthful employment and places of employment. 29 U.S.C. 652(8).
    The Act also authorizes the Secretary to ``modify'' or ``revoke''
any occupational safety or health standard, 29 U.S.C. 655(b), and under
the Administrative Procedure Act, regulatory agencies generally may
revise their rules if the changes are supported by a reasoned analysis,
see Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 42 (1983). ``While the removal of a regulation may not entail
the monetary expenditures and other costs of enacting a new standard,
and accordingly, it may be easier for an agency to justify a
deregulatory action, the direction in which an agency chooses to move
does not alter the standard of judicial review established by law.''
Id.
    The Act provides that in promulgating health standards dealing with
toxic materials or harmful physical agents, such as the January 9,
2017, final rule regulating occupational exposure to beryllium, the
Secretary must set the standard that most adequately assures, to the
extent feasible and on the basis of the best available evidence, that
no employee will suffer material impairment of health or functional
capacity even if such employee has regular exposure to the hazard dealt
with by such standard for the period of his working life. 29 U.S.C.
655(b)(5).
    The Supreme Court has held that before the Secretary can promulgate
any permanent health or safety standard, he must make a threshold
finding that significant risk is present and that such risk can be
eliminated or lessened by a change in practices. See Indus. Union
Dep't, AFL-CIO v. Am. Petroleum Inst. (``Benzene''), 448 U.S. 607, 641-
42 (1980) (plurality opinion). OSHA need not make additional findings
on risk for this revised rule because OSHA previously determined that
the beryllium standard addresses a significant risk that can be
eliminated or lessened by a change in practices, see 82 FR 2545-52, and
the changes and clarifications in this final rule do not affect that
determination. See, e.g., Pub. Citizen Health Research Grp. v. Tyson,
796 F.2d 1479, 1502 n.16 (D.C. Cir. 1986) (rejecting the argument that
OSHA must ``find that each and every aspect of its standard eliminates
a significant risk'').
    OSHA standards must also be both technologically and economically
feasible. See United Steelworkers of Am., AFL-CIO-CLC v. Marshall
(``Lead I''), 647 F.2d 1189, 1264 (D.C. Cir. 1980). The Supreme Court
has defined feasibility as ``capable of being done.'' Am. Textile Mfrs.
Inst. v. Donovan (``Cotton Dust''), 452 U.S. 490, 508-09 (1981). The
courts have further clarified that a standard is technologically
feasible if OSHA proves a reasonable possibility, ``within the limits
of the best available evidence . . . that the typical firm will be able
to develop and install engineering and work practice controls that can
meet the [standard] in most of its operations.'' Lead I, 647 F.2d at
1272. With respect to economic feasibility, the courts have held that
``[a] standard is feasible if it does not threaten massive dislocation
to or imperil the existence of the industry.'' Id. at 1265 (internal
quotation marks and citations omitted).
    OSHA exercises significant discretion in carrying out its
responsibilities under the Act. Indeed, ``[a] number of terms of the
statute give OSHA almost unlimited discretion to devise means to
achieve the congressionally mandated goal'' of ensuring worker safety
and health. See Lead I, 647 F.2d at 1230 (citation omitted). Thus,
where OSHA has chosen some measures to address a significant risk over
other measures, parties challenging the OSHA standard must ``identify
evidence that their proposals would be feasible and generate more than
a de minimis benefit to worker health.'' N. Am.'s Bldg. Trades Unions
v. OSHA, 878 F.3d 271, 282 (D.C. Cir. 2017).
    Although OSHA is required to set standards ``on the basis of the
best available evidence,'' 29 U.S.C. 655(b)(5), its determinations are
``conclusive'' if supported by ``substantial evidence in the record
considered as a whole,'' 29 U.S.C. 655(f). Similarly, as the Supreme
Court noted in Benzene, OSHA must look to ``a body of reputable
scientific thought'' in making determinations, but a reviewing court
must ``give OSHA some leeway where its findings must be made on the
frontiers of scientific knowledge.'' Benzene, 448 U.S. at 656. When
there is disputed scientific evidence in the record, OSHA must review
the evidence on both sides and ``reasonably resolve'' the dispute.
Tyson, 796 F.2d at 1500. The ``possibility of drawing two inconsistent
conclusions from the evidence does not prevent the agency's finding
from being supported by substantial evidence.'' N. Am.'s Bldg. Trades
Unions, 878 F.3d at 291 (quoting Cotton Dust, 452 U.S. at 523)
(alterations omitted). As the D.C. Circuit has noted, where ``OSHA has
the expertise we lack and it has exercised that expertise by carefully
reviewing the scientific data,'' a dispute within the scientific
community is not occasion for the reviewing court to take sides about
which view is correct. Tyson, 796 F.2d at 1500.
    Finally, because section 6(b)(5) of the Act explicitly requires
OSHA to set health standards that eliminate risk ``to the extent
feasible,'' OSHA uses feasibility analysis rather than cost-benefit
analysis to make standards-setting decisions dealing with toxic
materials or harmful physical agents. 29 U.S.C. 655(b)(5). An OSHA
standard in this area must be technologically and economically
feasible-and also cost effective, which means that the protective
measures it requires are the least costly of the available alternatives
that achieve the same level of protection-but OSHA cannot choose an
alternative that provides a lower level of protection for workers'
health simply because it is less costly. See Int'l Union, UAW v. OSHA,
37 F.3d 665, 668 (D.C. Cir. 1994); see also Cotton Dust, 452 U.S. at
513 n.32. In Cotton Dust, the Court explained that Congress itself had
defined the appropriate relationship between costs and benefits by
prioritizing the ``benefit'' of worker health above all other
considerations, save those that would make this ``benefit''
unachievable. The Court further stated that any standard based on a
balancing of costs and benefits by the Secretary that strikes a
different balance than that struck by Congress would be inconsistent
with the command set forth in section 6(b)(5). See Cotton Dust, 452
U.S. at 509. Thus, while OSHA estimates the costs and benefits of its
proposed and final rules, in part to ensure compliance with
requirements such as those in Executive Orders 12866 and 13771, these
calculations do not form the basis for the agency's regulatory
decisions.

IV. Final Economic Analysis and Regulatory Flexibility Act
Certification (FEA)

A. Summary of Economic Impact

    This rule amends OSHA's existing general industry standard for
occupational exposure to beryllium and beryllium compounds (29 CFR
1910.1024) to clarify certain provisions and simplify or improve
compliance. OSHA's final economic analysis shows that these changes
will result in unquantifiable cost savings, largely due to the
prevention of misinterpretation and misapplication of the standard.
    In promulgating the 2017 final rule, OSHA determined that the
beryllium rule was both technologically and economically feasible. See
82 FR at 2582-86, 2590-96, Summary of the Final Economic Analysis. The
changes herein are intended to align the rule more clearly with the
intent of the 2017 final rule. Because OSHA has

determined that this final rule will decrease the costs of compliance
by preventing misinterpretation and misapplication of the standard, and
would require no new controls or other technology, OSHA has also
determined that the rule is both technologically and economically
feasible.
    Because this final rule only clarifies the existing beryllium
standard or makes minor revisions that will generally aid in
compliance, the revised beryllium standard will maintain safety and
health protections for workers. And, to the extent this final rule
helps employers avoid misapplication of the beryllium standard's
requirements and hence achieves greater compliance with the standard's
intended meaning, there will be increased protection for workers.

B. Final Economic Analysis and Regulatory Flexibility Act Certification

    Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5
U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C.
1532(a)) require that OSHA estimate the benefits, costs, and net
benefits of regulations, and analyze the impacts of certain rules that
OSHA promulgates. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility.
    This final rule is not a ``significant regulatory action'' under
Executive Order 12866 or the UMRA. Neither the benefits nor the costs
of this final rule would exceed $100 million in any given year. On the
contrary, the possible effects of each provision on costs and benefits
appear to be relatively small, and OSHA has not been able to quantify
them. Nor has OSHA been able to quantify the cost savings it expects
from preventing misinterpretation and misapplication of the standard.
However, OSHA does expect that this final rule will increase
understanding and compliance with the standard and, therefore, the
agency expects the rule to result in some, unquantifiable cost savings.
Moreover, and as discussed above, OSHA expects this final rule will
maintain safety and health protections for workers.
1. Final Determinations Regarding Costs and Cost Savings Attributable
to the Final Rule
    In the Preliminary Economic Analysis and Regulatory Flexibility Act
Certification (PEA) in the 2018 NPRM, OSHA considered whether each of
the proposed changes could affect the costs and, if so, how those costs
might be affected (83 FR at 63760-65). For the purposes of the
preliminary analysis, the agency divided the proposed changes into two
groups: (1) Proposed clarifications and (2) proposed revisions. The
``proposed clarifications'' were those that were solely intended to
clarify provisions and would not alter the requirements and scope of
the rule (83 FR at 63760-61). The items OSHA identified as
clarifications included the addition of a definition of beryllium
sensitization to paragraph (b); minor changes to the definitions of CBD
diagnostic center and chronic beryllium disease in paragraph (b); minor
changes to the written exposure control plan provisions in paragraphs
(f)(1)(i)(D) and (f)(1)(ii)(B); a minor change in the PPE removal
provision of paragraph (h)(2)(i); minor changes to provisions for the
cleaning of PPE in paragraph (h)(3)(iii); minor changes to the cleaning
of PPE upon entry to eating or drinking areas in paragraph (i)(4)(ii);
and minor changes to provisions for employee information and training
in paragraphs (m)(4)(ii)(A) and (m)(4)(ii)(E) (83 FR at 63760-61).
    The ``proposed revisions,'' on the other hand, were those that
would go beyond clarification and alter certain requirements of the
beryllium standard (83 FR at 63761). The proposed provisions that OSHA
identified as revisions included changes to the definitions of
beryllium work area, confirmed positive, and dermal contact with
beryllium in paragraph (b); a change to the requirements for washing
facilities in paragraph (i)(1); a change to the requirements for
provision of change rooms in paragraph (i)(2); changes to the
requirements pertaining to disposal and recycling in paragraph (j)(3);
a change to the requirements for medical surveillance following an
employee's exposure to beryllium in an emergency in paragraph (k)(2);
revision to provisions for evaluation at a CBD diagnostic center in
paragraph (k)(7)(i); a change to the requirements for warning labels in
paragraph (m)(3); and changes to the requirements for recordkeeping in
paragraphs (n)(1)(ii)(F), (n)(3)(ii)(A), and (n)(4)(i).
    After carefully reviewing the proposed clarifications and
revisions, OSHA preliminarily determined that their net total effect
would result in potential cost savings, mainly from improving employer
understanding and facilitating application of the rule (83 FR at 63760-
61). OSHA preliminarily identified a new potential cost, which would
result from the proposed changes as a whole: A de minimis cost for the
time employers would need to become familiar with the revised portions
of this final rule (83 FR at 63761, 63765). Viewing all the proposed
changes as a whole, OSHA explained that it preliminarily anticipated
that the proposed provisions' net effect would result in some cost
savings (83 FR at 63761). OSHA invited comment on all aspects of the
PEA, including these preliminary determinations (83 FR at 63760-62,
63764-65).
    Stakeholders either agreed with or did not comment on OSHA's
analysis of potential costs and costs savings attributable to the vast
majority of the proposed clarifications and revisions (e.g., Document
ID 0026, pp. 1-2; 0038, pp. 21, 26, 32). The only objections the agency
received related to two of the four proposed paragraphs that OSHA is
revising from the proposal in the final rule: (1) The definition of the
term confirmed positive; and (2) the requirement related to
examinations at CBD diagnostic centers (Document ID 0021, p. 4; 0022,
pp. 5-6). Those comments, and OSHA's final determination that each of
the four paragraphs that OSHA is revising from the proposal will result
in small and unquantifiable cost savings, are discussed in detail
below.
    OSHA has also examined the record concerning the proposed
clarifications and revisions that OSHA has finalized without change. As
noted above, stakeholders either agreed with or did not comment on
OSHA's analysis of potential costs and costs savings attributable to
these proposed changes. Therefore, after carefully considering all the
comments received and the remainder of the record, OSHA affirms its
preliminary determination that these clarifications and revisions are
likely to result in cost savings, largely from improving employer
understanding and facilitating application of the rule. OSHA also
affirms its preliminary determination that the only potential new costs
are de minimis costs for the time employers would need to become
familiar with the revised portions of this final rule.
    In summary, OSHA finds that both the four paragraphs that OSHA is
revising from the proposal and the remainder of the proposed
clarifications and revisions that OSHA is finalizing without change in
the final rule will result in potential cost savings mainly
attributable to improving employer understanding and facilitating
application of the rule, as well as preventing costs that would follow
from misunderstanding the standard. OSHA expects that the cost savings
attributable to these changes will offset the de minimis employer
familiarization costs, resulting in a net result of cost savings.
Therefore, OSHA finds that this final rule is likely to result in cost
savings.

2. Analysis of Costs and Costs Savings Attributable to Provisions in
the Final Rule That Differ From Those in the Proposal
    In this section the agency discusses the four changes in the final
rule that differ from the proposal: The definition of confirmed
positive in paragraph (b), Definitions; a clarification to inter-plant
transfers in paragraph (j), Housekeeping; and two changes to paragraph
(k), Medical Surveillance: Requirements related to CBD diagnostic
centers and requirements for medical examination at termination of
employment. In all cases, as stated above, the agency has determined
these will have de minimis cost or cost savings implications.
    Definition of Confirmed Positive.
    The 2017 final rule did not specify a time limit within which the
BeLPT tests that contribute toward a finding of ``confirmed positive''
must occur. In the 2018 NPRM, OSHA proposed to modify the definition of
confirmed positive to require that the qualifying test results be
obtained within one testing cycle (including the 30-day follow-up test
period required after a first abnormal or borderline BeLPT test
result), rather than arguably over an unlimited time period that might
have led to false positives that could needlessly concern workers and
their families, could lead workers to undergo unnecessary testing, and
would not enhance worker protections. In the PEA, OSHA explained that
the exact effect of the proposed change was uncertain as it is unknown
how many employees would have a series of BeLPT results associated with
a confirmed positive finding (two abnormal results, one abnormal and
one borderline result, or three borderline results) over an unlimited
period of time, but would not have any such combination of results
within a single testing cycle (83 FR at 63761-62). OSHA preliminarily
concluded that the proposed change would not increase compliance costs
and would incidentally yield some cost savings by lessening the
likelihood of false positives (83 FR at 63762). The agency invited
comment on its preliminary conclusion (83 FR at 63762).
    As discussed in Section XI, Summary and Explanation for paragraph
(b), a number of stakeholders commented that requiring results within a
30-day testing cycle could create logistical challenges, for example
due to repeat testing requirements or for businesses in remote areas
with limited healthcare facilities (Document ID 0022, p. 4; 0021, p. 4;
0024, p. 1; 0033, p. 5; 0027, p. 3). National Jewish Health (NJH) also
commented that removing the time frame of 30 days for confirming
abnormal results would allow for employee workplace protection and
clinical evaluation referral at a lower cost and with less logistical
burden (Document ID 0022, p. 5).
    Stakeholders' logistical concerns and NJH's comment about costs
reflect a misunderstanding of the proposed change. As explained in more
detail in the Summary and Explanation for paragraph (b), OSHA did not
intend that the initial and any follow-up tests had to be completed and
interpreted within 30 days. Rather, the agency intended that the test
results be obtained during one cycle of testing, that is, an initial or
periodic examination followed by follow-up testing conducted within 30
days of an abnormal or borderline result. For example, if an employee
received a borderline BeLPT result at his or her periodic examination,
paragraph (k)(3)(ii)(E) would require the employer to offer a follow-up
BeLPT within 30 days of the test results. If the follow-up BeLPT result
was also borderline, paragraph (k)(3)(ii)(E) would again require the
employer to offer a follow-up BeLPT within 30 days of the first follow-
up test's results. If that second follow-up was borderline or abnormal,
the employee would have been confirmed positive under the proposal
because all of the tests that ``confirmed'' the results were triggered
by the initial test. In other words, OSHA did not intend to suggest
that the proposal would have required employers to conduct all of the
tests or obtain the confirming results within a single 30-day period.
    In this final rule, OSHA has revised the definition of confirmed
positive to specify that the findings of two abnormal, one abnormal and
one borderline, or three borderline results must be obtained from
BeLPTs conducted within a three-year period. OSHA determined that this
revision strikes the appropriate balance between the shorter time
period for confirmation in the proposal and the unspecified, arguably
indefinite, time period of the original definition. As explained in the
Summary and Explanation section, the final three-year period will
capture the identification of sensitized workers enrolled in medical
surveillance. OSHA finds that the addition of a specific time period to
the text of the final rule will decrease the possibility of a
misinterpretation of the provision's time frame that could lead to
false positive results.
    As with the proposed revisions to this definition, OSHA finds that
the exact effect of this change is uncertain because it is unknown how
many employees would have a series of BeLPT results associated with a
confirmed positive finding (two abnormal results, one abnormal and one
borderline result, or three borderline results) over an unlimited
period of time, but would not have any such combination of results
within a three-year testing cycle, though it is likely to be small. As
discussed in Section XI, Summary and Explanation of the Final Rule, NJH
reported that in a group of 194 CBD patients in their care, the length
of time between abnormal results ranged from 14 days to 5.8 years, with
a 95th percentile of 2.9 years. This suggests that the vast majority of
individuals who will have two abnormal BeLPT tests in the course of
medical surveillance are likely to be confirmed positive within the
three-year window of time OSHA is establishing in the definition of
confirmed positive. The Summary and Explanation section notes further
that a three-year testing cycle is consistent with practices and
recommendations of the medical community, pointing to the increasing
likelihood that a confirmed positive finding over longer periods of
time will be a false-positive and lead to costly further medical exams
with no benefit. Thus, OSHA concludes that this change will not
increase compliance costs and will incidentally yield some cost savings
by lessening the likelihood of false positives.
    Disposal, Recycling, and Reuse.
    Paragraph (j)(3) of the previous standard (29 CFR 1910.1024(j)(3))
addresses disposal and recycling of materials that contain beryllium in
concentrations of 0.1 percent by weight or more or that are
contaminated with beryllium. In the 2018 NPRM, OSHA proposed to modify
this paragraph in a number of ways--all of which the agency
preliminarily found would not increase the costs of complying with the
standard and may also result in unquantifiable savings to employers by
preventing misinterpretation or misapplication of the rule (83 FR at
63762-63). Stakeholders did not offer any comments objecting to this
preliminary determination. With the exception of one minor
clarification to the regulatory text, discussed below, OSHA is adopting
all of the proposed revisions to paragraph (j)(3) in this final rule.
After reviewing the record as a whole and having received no evidence
or comment to the contrary, the agency reaffirms its preliminary
determination that the proposed revisions to paragraph (j)(3) that are
being adopted in this final rule will result in some cost savings from
increased employer understanding.

    OSHA has made one change to the proposed provisions in paragraph
(j)(3) in this final rule. When employers transfer certain materials to
another party for disposal, recycling, or reuse, proposed paragraph
(j)(3)(i) would have required employers to label the materials in
accordance with paragraph (m)(3) of the standard. As explained in the
Summary and Explanation for paragraph (j)(3), a comment alerted the
agency to a potential ambiguity in this proposed text. Specifically,
OSHA realized that the phrase ``to another party'' could be read to
suggest that transfers between two facilities owned by the same
employer are exempted from the labeling requirements in paragraph
(j)(3)(i). That was not the agency's intent in the proposal. To
eliminate any ambiguity on this point, OSHA revised paragraph (j)(3)(i)
in the final rule to strike the phrase ``to another party'' and add the
``except for intra-plant transfers'' language that is found in
paragraphs (j)(3)(ii) and (iii).
    As with the proposed changes to paragraphs (j)(3)(ii) and (iii),
which clarified that those paragraphs' requirements did not apply to
intra-plant transfers, OSHA finds that this proposed change is not a
substantive change to the standard. It is simply clarifying OSHA's
original intent that all transfers outside of a plant, including
between facilities owned by the same employer, are subject to the
labeling requirements of paragraph (m)(3). Since this change does not
alter the requirements of the standard, it will not affect the costs of
compliance with the standard. Therefore, OSHA finds that none of the
changes this final rule makes to paragraph (j)(3) will increase the
costs of complying with the standard.
    Medical Surveillance.
    In the 2018 NPRM, OSHA proposed two sets of changes to paragraph
(k). The first set of changes proposed is in paragraph (k)(2), which
specifies when and how frequently medical examinations are to be
offered to those employees covered by the medical surveillance program.
Paragraph (k)(2)(i)(B) of the previous standard required the employer
to provide a medical examination within 30 days after determining that
the employee shows signs or symptoms of CBD or other beryllium-related
health effects or that the employee has been exposed to beryllium in an
emergency.
    Based on stakeholder feedback and other evidence indicating that
the 30-day period in the previous standard may be insufficient to
detect beryllium sensitization in individuals exposed one time in an
emergency, OSHA proposed removing the requirement for a medical
examination within 30 days of exposure to beryllium during an
emergency, under paragraph (k)(2)(i)(B), and adding paragraph
(k)(2)(iv), which would require the employer to offer a medical
examination at least one year after but no more than two years after
the employee is exposed to beryllium during an emergency (83 FR at
63757).
    In the PEA, OSHA preliminarily determined that the net cost impact
of these proposed changes would be slight, with some possible cost
savings. Specifically, OSHA explained that, in the FEA for the 2017
final rule, the agency estimated that emergencies would affect a very
small number of employees in a given year, likely less than 0.1 percent
of the affected population, representing a small addition to the costs
of medical surveillance for the standard (Document ID OSHA-H005C-2006-
0870-2042, p. V-196). Under the 2017 final rule, some employees might
have required two examinations to be confirmed positive: A first test
cycle within the initial 30-day period and a second BeLPT at least two
years later. Under the 2018 NPRM, OSHA expected that more of the
employees who became sensitized from exposure in an emergency would be
confirmed positive through a single testing cycle because that test
would have been administrated one to two years following the emergency.
The agency anticipated that the proposed change would result in the
elimination of one premature testing, which would ensure better
detection for more employees and incidentally trigger some cost savings
(83 FR at 63764).\3\
---------------------------------------------------------------------------

    \3\ Assuming that this initial analysis does not result in a
confirmed positive diagnosis, that employee would not be confirmed
positive until a second test two years later under the current rule.
---------------------------------------------------------------------------

    To the extent that lengthening the time period in which the test
must be offered from within 30 days to between one and two years leads
to earlier confirmed positive results (within two years, as opposed to
within two years plus 30 days), OSHA preliminarily found that the
proposed change could slightly accelerate costs to the employer for
earlier CBD diagnostic center referral and medical removal protection.
OSHA estimated that the proposed change would affect a very small
percentage of an already very small population. The agency
preliminarily determined that the proposed revision would only
potentially change the timing of the already-required BeLPT, CBD
diagnostic center referral, and medical removal protection (83 FR at
63764, 63764 n.5).
    In summary, OSHA preliminarily found that the end result of the
proposed changes to paragraph (k)(2) from a cost perspective would be
that the cost savings from the potential avoidance of a premature BeLPT
within 30 days following an emergency would likely be largely canceled
out by the acceleration of the cost of the CBD diagnostic center
evaluation and medical removal protection. Therefore, OSHA
preliminarily determined that the net cost impact of the proposed
changes would be slight, with some possible cost savings (83 FR at
63764). Stakeholders did not submit any comments related to OSHA's
preliminary determinations regarding potential costs of the proposed
revisions to paragraph (k)(2).
    In sum, after considering the record as a whole, OSHA finds that
its preliminary estimates were correct: A small change in costs, with
possible cost savings. Nevertheless, as discussed in more detail in the
Summary and Explanation for paragraph (k), Medical Surveillance, some
stakeholders expressed concerns about possible delays in medical
consultations and examinations and lack of employee knowledge of
potential health effects, and one stakeholder argued that employees who
terminate employment before receiving the post-emergency examination
might not receive an examination at all after being exposed in an
emergency (Document ID 0023, pp. 2-3; 0024, p. 2; 0027, p. 4).
    OSHA is revising paragraphs (k)(2) in the final rule in two ways to
address these concerns. First, OSHA has added two sub-provisions under
paragraph (k)(2)(iv) to provide for post-emergency examination timing
for two separate groups of employees. Final paragraph (k)(2)(iv)(A)
focuses on the very small group of employees who are exposed in an
emergency but have not received a medical examination under paragraph
(k)(1)(i) within the previous two years. The requirement for these
employees is similar to the requirement contained in the previous
standard; i.e., under the final standard, the employer must provide
these employees with a medical examination within 30 days of the date
of the emergency. Because the final standard treats these employees
similarly to the manner in which the previous standard treated all
employees exposed in an emergency, OSHA does not expect that there will
be any change in cost attributable to this change. In other words, for
those employees who have not had a medical examination within the past
two years there is no change in protocol and, thus, no change in costs.

    Final paragraph (k)(2)(iv)(B) focuses on employees who are exposed
during an emergency, but have recently received an examination. Under
this new provision, if an employee has received a medical examination
under paragraph (k)(1)(i) within the previous two years, then the
employer would be required to offer that employee a medical examination
that meets the requirements of the standard at least one year but no
more than two years after the employee was exposed to beryllium in an
emergency. Because this provision treats employees who have recently
received an examination similarly to the manner in which the proposal
would have treated all employees exposed in an emergency, OSHA expects
that this change will result in a fraction of the small cost savings
preliminarily estimated in the proposal.
    Second, to address concerns that delaying the medical examination
to at least one year and no more than two years following the emergency
may result in employees not receiving a post-emergency examination if
their employment ends soon after exposure during an emergency, OSHA is
revising paragraph (k)(2)(iii) to require that each employee who is
exposed in an emergency and has not received an examination since the
emergency exposure is provided an examination at the time employment is
terminated. Because paragraph (k)(2)(iii) already requires an
examination at termination if there has not been one within the last
six months due to any of the standard medical exam triggers, including
emergency exposure, OSHA expects that this change will affect an
extremely small group of employees. This revision, however, will ensure
that all employees with emergency exposure are offered a medical exam,
even under this very narrow set of circumstances. The baseline of costs
and cost savings of this analysis is the previous rule, which already
required a medical exam within 30 days of emergency exposure. Thus,
OSHA does not expect that this change will have any cost implications.
    In summary, OSHA finds that this final rule's revisions to
paragraph (k)(2) will result in slight cost savings. No costs or costs
savings are attributable to new paragraph (k)(2)(iv)(A), which treats
employees exposed in an emergency who have not received a medical
examination within the previous two years pursuant to paragraph
(k)(1)(i) similarly to how all employees exposed in an emergency were
treated under the previous standard. The end result of final paragraph
(k)(2)(iv)(B), however, will be cost savings from the potential
avoidance of a premature BeLPT that are largely offset by the
acceleration of the cost of the CBD diagnostic center evaluation and
medical removal protection. OSHA does not attribute any costs or cost
savings to result from the revisions to paragraph (k)(2)(iii).
Therefore, the agency expects the new result of final paragraph (k)(2)
to be a slight cost savings.
    The second set of changes proposed to the standard's medical
surveillance requirements is in paragraph (k)(7), which contains the
requirements for evaluation at a CBD diagnostic center. Paragraph
(k)(7)(i) of the previous rule required employers to provide an
evaluation at no cost to the employee at a CBD diagnostic center that
is mutually agreed upon by the employee and employer within 30 days of
the employer receiving a written medical opinion that recommends
referral to a CBD diagnostic center, or a written medical report
indicating that the employee has been confirmed positive or diagnosed
with CBD. To address stakeholder concerns that scheduling the
appropriate tests with an examining physician at the CBD diagnostic
center may take longer than 30 days, OSHA proposed that the employer
provide an initial consultation with the CBD diagnostic center, 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).
The agency noted that the consultation could occur via telephone or
virtual conferencing methods and would demonstrate that the employer
made an effort to begin the process for a medical examination (83 FR at
63758). Evaluation and any testing would then occur within a reasonable
time after the consultation.
    In the PEA, OSHA noted that while the addition of the consultation
would not result in any additional costs or cost savings (since the
2017 FEA had already accounted for a 15-minute discussion between the
employee and a physician (Document ID OSHA-H005C-2006-0870-2042, p. V-
206)), allowing more flexibility in scheduling the tests at the CBD
diagnostic center would enable employers to find more economical travel
and accommodation options. To the extent that it takes longer than 30
days to schedule the tests at the CBD diagnostic center, the agency
preliminarily found that employers may realize a cost savings due to
retaining funds during the delay. OSHA could not quantify the effect of
this flexibility, however, concluding only that it expected that the
changes would produce minor, if any, cost savings. The agency invited
comment on its preliminary assessment of these potential effects (83 FR
at 63764).
    Stakeholders did not offer any comments on the agency's preliminary
estimates regarding the cost savings attributable to these proposed
changes. Several commenters objected to adding the consultation
requirement, however, arguing that it was an unnecessary step that
would add logistical complications and costs (see, e.g., Document ID
0021, p. 3; 022, p. 6). This is discussed in more detail in the Summary
and Explanation for paragraph (k), Medical Surveillance. After
considering these comments and the record as a whole, OSHA decided to
modify paragraph (k)(7)(i) to require that the employer within 30 days
of receiving one of the types of documentation listed in paragraph
(k)(7)(i)(A) or (B) schedule an evaluation at a CBD diagnostic center.
In addition, OSHA is adding a requirement that the evaluation itself
must occur within a reasonable time.
    OSHA finds that these changes may slightly delay the incidence of
costs of an evaluation under paragraph (k)(7)(i), in that it may occur
at a later date in some cases than under the existing provision. This
would slightly decrease the costs of compliance with the standard. The
agency also finds that allowing the evaluation to occur within a
reasonable time, rather than within 30 days, may allow for more cost-
effective travel and accommodation options. Thus, as with the proposal,
OSHA concludes that these changes may produce minor cost savings.
    To account for a proposed change to the definition of CBD
diagnostic center, the proposed rule would also have amended paragraph
(k)(7)(i) to clarify that the employer must provide, at no cost to the
employee and within a reasonable time after consultation with the CBD
diagnostic center, any of the following tests that a CBD diagnostic
center must be capable of performing, if deemed appropriate by the
examining physician at the CBD diagnostic center: A pulmonary function
test as outlined by American Thoracic Society criteria testing,
bronchoalveolar lavage (BAL), and transbronchial biopsy. In the PEA,
OSHA explained that this proposed change would not alter the
requirements of the standard and therefore would not change the costs
of compliance with the standard (83 FR at 63764).
    Stakeholders did not offer any comments on OSHA's determination
that these proposed changes would not affect costs. Some stakeholders
argued, however, that the proposed provision could be misinterpreted to
mean that the employer does not have to make available other tests that
the examining

physician deems appropriate for reasons such as diagnosing or
determining the severity of CBD (Document ID 0021, p. 3; 0022, p. 3;
0028, p. 2). This is discussed in more detail in the Summary and
Explanation for paragraph (k), Medical Surveillance. To address these
concerns, OSHA is adding a new provision, 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 American Thoracic
Society criteria testing, bronchoalveolar lavage (BAL), and
transbronchial biopsy.\4\ If any of these tests deemed appropriate by
the examining physician are not available at the CBD diagnostic center,
the final rule allows them to be performed at another location that is
mutually agreed upon by the employer and the employee.
---------------------------------------------------------------------------

    \4\ As discussed in Section XI, Summary and Explanation of the
Final Rule, OSHA also redesignated previous paragraphs (k)(7)(ii),
(iii), (iv), and (v) as paragraphs (k)(7)(iii), (iv), (v), and (vi),
respectively. This redesignation in paragraph (k) also affects a
reference in paragraph (l)(1)(ii). These changes are merely
administrative and do not have any substantive or monetary effect.
---------------------------------------------------------------------------

    OSHA does not believe that requiring employers to provide any tests
deemed appropriate by the examining physician would change the costs of
compliance with the standard because the agency accounted for such
costs in the 2017 final rule.\5\ Specifically, when calculating the
unit cost for going to a CBD diagnostic center in the 2017 FEA, the
agency used a typical suite of tests that would be performed (Document
ID OSHA-H005C-2006-0870-2042, p. V-205). Consequently, OSHA's unit cost
in the 2017 final rule for an evaluation at a CBD diagnostic center was
an average for standard tests that are required. The agency finds that
this average set of tests by definition is constructed to give the
average cost for the tests deemed appropriate by the examining
physician and, thus, concludes that there are no costs or cost savings
attributable to this change.
---------------------------------------------------------------------------

    \5\ As discussed in the Summary and Explanation for paragraph
(k), Medical Surveillance, OSHA never intended to limit the required
tests to the three tests listed in the previous definition of the
term CBD diagnostic center.
---------------------------------------------------------------------------

    Paragraph (k)(7)(ii) requires that if any test deemed appropriate
by the examining physician is not available at the CBD diagnostic
center, the test must be performed at another location that is mutually
agreed to by the employer and employee. OSHA believes that such
circumstances would be very rare. CBD diagnostic centers with the
ability to perform pulmonary function testing (as outlined by the
American Thoracic Society criteria), bronchoalveolar lavage (BAL), and
transbronchial biopsy are most likely to also provide other medical
tests related to CBD.\6\ As a result, the CBD diagnostic center in the
vast majority of cases will be able to offer the additional testing
deemed necessary by the examining physician. Moreover, because the
three tests noted above are the tests that are commonly needed to
diagnose CBD, OSHA expects that these are the tests that would most
commonly be performed (see Section XI, Summary and Explanation of the
Final Rule). Given that this standard requires CBD diagnostic centers
to be able to perform the three tests that are most commonly performed
to diagnose CBD and CBD diagnostic centers typically would be able to
offer any additional tests deemed necessary, OSHA expects that
employees would rarely, if ever, need to travel to a second
location.\7\ In those rare cases, the added flexibility of having the
tests performed outside of a CBD diagnostic center gives more options
for the employer and employee and should lead to cost savings. Because
this situation should be quite uncommon, OSHA expects that the cost
savings of allowing employees to have additional tests outside of a CBD
diagnostic center are likely to be de minimis.
---------------------------------------------------------------------------

    \6\ Document ID OSHA-H005C-2006-0870-0637 provides some
information from the NJH website, which provides an overview of the
types of tests performed.
    \7\ OSHA also notes that it has always intended for employers to
make available any additional tests deemed appropriate by the
examining physician (see the discussion of paragraph (k), Medical
Surveillance, in Section XI, Summary and Explanation of the Final
Rule, of this preamble). The economic analysis of the 2017 final
rule did not explicitly account for these rare cases where a test
recommended by the examining physician of the CBD diagnostic center
was not available at the same center. Hence, there would be a de
minimis cost adjustment increase of the total cost of the 2017 final
rule due to this consideration. This is not a change in people's
behavior, simply a methodological change. The current final rule
could affect people's behavior and be a true change (decrease) in
costs. This change merely provides employers with a more flexible,
potentially less expensive, manner to provide those tests in the
rare situation where they are not available at the original CBD
diagnostic center.
---------------------------------------------------------------------------

    This change to paragraph (k)(7) clarifies OSHA's intent that the
employer provide any tests deemed appropriate by the examining
physician at the CBD diagnostic center, or at another location if not
available at the CBD diagnostic center, but does not substantively
change the requirements of the beryllium standard. OSHA expects that
the changes described here would maintain safety and health protections
for workers.
3. Economic and Technological Feasibility
    In the FEA in support of OSHA's 2017 Beryllium Final Rule, OSHA
concluded that the general industry beryllium standard was economically
and technologically feasible (see 82 FR at 2471). In the 2018 NPRM,
OSHA explained that it anticipated that none of the proposed changes
would impose any new employer obligations or increase the overall cost
of compliance, while some of the changes would clarify and simplify
compliance in such a way that results in cost savings. In addition,
OSHA preliminarily anticipated that the de minimis cost of any time
spent reviewing the proposed changes would be more than offset by the
cost savings described in the PEA. OSHA further found that none of the
proposed revisions would require any new controls or other technology.
OSHA therefore preliminarily determined that the proposed rule was both
economically and technologically feasible. OSHA did not receive any
comments objecting to or otherwise questioning this preliminary
determination.\8\ Therefore, after considering the record as a whole,
OSHA finds that the proposed provisions that are being adopted in this
final rule are economically and technologically feasible.
---------------------------------------------------------------------------

    \8\ Although the agency did not receive any comments questioning
the economic or technological feasibility of the proposed changes,
at least one stakeholder argued that the previous standard was not
economically or technologically feasible and that the proposed
provisions remedied some of that stakeholder's concerns with
feasibility (Document ID 0038, pp. 13, 21-22, 43). Because the
feasibility of the January 2017 final rule as a whole is not at
issue in this rulemaking, OSHA considers these comments indicating
that these changes provide both economic and technological
feasibility relief as support for the economic and technological
feasibility of the proposed revisions.
---------------------------------------------------------------------------

    OSHA also finds that the few new changes between the proposal and
the final rule would not require any new controls or other technology
and will result in cost savings. Therefore, OSHA finds that these final
provisions, and the final rule as a whole, are economically and
technologically feasible.
4. Effects on Benefits
    In the 2017 FEA, OSHA attributed approximately 67 percent of the
beryllium sensitization cases and the CBD cases avoided, and none of
the lung cancer cases avoided, solely to the ancillary provisions of
the standard (Document ID OSHA-H005C-2006-0870-2042, pp. VII-4 to VII-
5, VII-24). This estimate was based on the ancillary provisions as a
whole, rather than each provision separately.

    In the PEA, OSHA considered the potential effect of each proposed
change to ancillary provisions on employee protections. Because the
proposed revisions to the standard would not remove or change the
general nature of any ancillary provisions, and because the agency
expected the proposed revisions to maintain safety and health
protections for workers and facilitate employer understanding and
compliance, OSHA preliminarily determined that the proposed changes
would increase the standard's benefits as a whole by enhancing worker
protections overall and by preventing costs that follow from
misunderstanding the standard.
    OSHA did not receive any comments related to its preliminary
assessment of the proposed provisions' effects on benefits. Having
considered the record as a whole, including all the comments received,
OSHA finds that the changes in this final rule will maintain safety and
health protections for workers while aligning the standard with the
intent behind the 2017 final rule and otherwise preventing costs that
could follow from misinterpretation or misapplication of the standard.
And the agency reaffirms its determination that facilitating employer
understanding and compliance has the benefit of enhancing worker
protections overall. Therefore, OSHA finds that the changes in this
final rule will increase the benefits of the standard as a whole.
5. Regulatory Flexibility Act Certification
    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq. (as amended), OSHA has examined the regulatory requirements of
this final rule to revise the general industry beryllium standard to
determine whether they would have a significant economic impact on a
substantial number of small entities. The final rule modifies the
general industry standard to clarify certain provisions and simplify or
improve compliance. It does not impose any new duties or increase the
overall cost of compliance, and OSHA expects it will provide some cost
savings. OSHA therefore expects that this final rule will not have a
significant economic impact on any small entities. Accordingly, OSHA
certifies that this final rule will not have a significant economic
impact on a substantial number of small entities.

V. Office of Management and Budget (OMB) Review Under the Paperwork
Reduction Act of 1995

A. Overview

    This final rule revises information collection (paperwork)
requirements in the occupational exposure to beryllium in general
industry (29 CFR 1910.1024) standard that are subject to Office of
Management and Budget (OMB) approval under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501 et seq.) and its implementing regulations
(5 CFR part 1320). OSHA is revising the previously approved paperwork
package under OMB control number 1218-0267, as it pertains to general
industry only. The collection of information items contained in the
Information Collection Request (ICR) pertaining to occupational
exposure to beryllium in the construction and shipyard sectors remain
in the ICR without change.
    The PRA generally requires that agencies consider the impact of
paperwork and other information collection burdens imposed on the
public, obtain public input, and obtain approval from OMB before
conducting any collection of information (44 U.S.C. 3507). The PRA
defines a collection of information as ``the obtaining, causing to be
obtained, soliciting, or requiring the disclosure to third parties or
the public, of facts or opinions by or for an agency, regardless of
form or format'' (44 U.S.C. 3502(3)(A)). Federal agencies generally
cannot conduct or sponsor a collection of information, and the public
is generally not required to respond to an information collection,
unless it is approved by OMB under the PRA and displays a valid OMB
control number (44 U.S.C. 3507). Also, notwithstanding any other
provision of law, no person shall be subject to penalty for failing to
comply with a collection of information if the collection of
information does not display a valid OMB control number (44 U.S.C.
3512).

B. Solicitation of Comments

    On January 9, 2017, OSHA published a final rule establishing new
permissible exposure limits and other provisions to protect employees
from beryllium exposure, such as requirements for exposure assessment,
respiratory protection, personal protective clothing and equipment,
housekeeping, medical surveillance, hazard communication, and
recordkeeping for the general industry, construction, and shipyard
sectors. OMB approved the collections of information contained in the
final rule under OMB Control Number 1218-0267.
    On December 11, 2018, OSHA published a Notice of Proposed
Rulemaking (NPRM) to modify the general industry beryllium standard by
clarifying certain provisions to improve and simplify compliance (83 FR
63746). The 2018 NPRM proposed to revise the collections of information
contained in the general industry standard by modifying provisions for
the written exposure control plan; the cleaning and replacement of
personal protection equipment; the disposal, recycling, and reuse of
contaminated materials; certain aspects of medical surveillance; and
the collection of social security numbers in recordkeeping. OSHA
prepared and submitted to OMB an ICR for the 2018 proposed rule for
review in accordance with 44 U.S.C. 3507(d). A copy of the proposed ICR
is available to the public at http://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1218-0267.
    In accordance with the PRA (44 U.S.C. 3506(c)(2)), OSHA solicited
public comments on the collection of information contained in the 2018
proposed rule. OSHA encouraged commenters to submit their comments on
the information collection requirements contained in the proposed rule
under docket number OSHA-2018-0003, along with their comments on other
parts of the proposed rule. In addition to generally soliciting
comments on the collection of information requirements, the proposed
rule indicated that OSHA and OMB were particularly interested in the
following items:
     Whether the proposed collection of information is
necessary for the proper performance of the agency's functions,
including whether the information is useful;
     The accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used;
     The quality, utility, and clarity of the information to be
collected; and
     Ways to minimize the compliance burden on employers, for
example, through the use of automated or other technological techniques
for collecting and transmitting information (83 FR 63766).
    On March 29, 2019, OMB issued a Notice of Action (NOA) stating,
``Terms of the previous clearance remain in effect. OMB is withholding
approval at this time. Prior to publication of the final rule, the
agency should provide a summary of any comments related to the
information collection and their response, including any changes made
to the ICR as a result of comments. In

addition, the agency must enter the correct burden estimates'' (see OMB
Conclusion Action on ICR Reference No.<PHONE_NUMBER>-001, dated March 29,
2019, available at: https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1218-0267).
    The agency did not receive any public comments in response to the
proposed ICR submitted to OMB for review. Public comments submitted in
response to the NPRM, however, substantively addressed provisions
containing collection of information. OSHA considered these comments
when it developed the revised ICR for this final rule. Summaries of
comments received on the NPRM and OSHA's responses are found in
Sections XI, Summary and Explanation of the Final Rule, and IV, Final
Economic Analysis and Regulatory Flexibility Act Certification.
    The Department of Labor submitted the final ICR concurrent with the
publication of this final rule, containing the full analysis and
description of the burden hours and costs associated with the final
rule, to OMB for approval. A copy of this ICR will be available to the
public at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202006-1218-006 (this link will become active on the day following publication
of this notice). At the conclusion of OMB's review, OSHA will publish a
separate notice in the Federal Register to announce the results.

C. Summary of Information Collection Requirements

    As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the
following paragraphs provide information about the ICR.
    1. Title: Beryllium Standard for General Industry (29 CFR
1910.1024), Construction (29 CFR 1926.1124), and Maritime (29 CFR
1915.1024).
    2. Type of Review: Revision.
    3. OMB Control Number: 1218-0267.
    4. Affected Public: Business or Other For-Profit. This final rule
applies to employers in general industry who have employees that may
have occupational exposures to any form of beryllium, including
compounds and mixtures, except those articles and materials exempted by
paragraphs (a)(2) and (a)(3).
    5. Occupational Exposure to Beryllium in General Industry only:
    a. Number of Respondents: 4,538.
    b. Frequency of Responses: On occasion, quarterly, semi-annually,
annually, biannually.
    c. Number of Responses: 134,570.
    d. Estimated Total Burden Hours: 82,822.
    e. Estimated Cost: $18,741,540.
    6. Occupational Exposure to Beryllium in Construction and Shipyard
Sectors (previously-approved costs not affected by this rulemaking):
    a. Number of Respondents: 2,796.
    b. Frequency of responses: On occasion, quarterly, semi-annually,
annually, biannually.
    c. Number of responses: 39,420.
    d. Estimated Total Burden Hours: 25,269.
    e. Estimated Cost: $8,774,874.
    7. Total Estimated Burden Hours and Cost for All Three Industries:
    a. Estimated Total Number of responses: 173,990.
    b. Estimated Total Burden Hours: 108,091.
    c. Estimated Cost: $27,516,414.

D. Summary of Changes in the Collection of Information Requirements

    This final standard for occupational exposure to beryllium and
beryllium compounds in general industry revises the collection of
information requirements contained in the existing ICR for general
industry, approved under OMB control number 1218-0267. OSHA is updating
the new ICR to reflect those changes, which include changes to the
written exposure control plan; the cleaning and replacement of personal
protection equipment; the disposal, recycling, and reuse of
contaminated materials; certain aspects of medical surveillance; and
the collection of Social Security numbers in recordkeeping (see Table
V.1 below). The majority of these changes were adopted by the agency as
proposed. However, in response to comments on the proposed rule, OSHA
has revised a few of the provisions of the final rule that affect the
collection of information. Those changes are also noted in Table V.1
below.

   Table V.1--Changes to Collection of Information Requirements in the
                     Final Rule for General Industry
------------------------------------------------------------------------
                                               Explanation of this final
 Information collection requirements in this     rule's changes to the
                  final rule                     information collection
                                                      requirements
------------------------------------------------------------------------
Sec.   1910.1024(f)(1)(i), (ii), & (iii)--     This final rule removed
 Methods of Compliance--Written Exposure        the word ``preventing''
 Control Plan.                                  from (f)(i)(D), which
(i) The employer must establish, implement,     previously contained the
 and maintain a written exposure control        phrase ``including
 plan, which must contain:.                     preventing the transfer
(A) A list of operations and job titles         of beryllium.'' In
 reasonably expected to involve airborne        addition, the final rule
 exposure to or dermal contact with             revised (f)(1)(ii)(B) by
 beryllium;.                                    replacing the phrase
(B) A list of operations and job titles         ``airborne exposure to
 reasonably expected to involve airborne        or dermal contact with
 exposure at or above the action level;.        beryllium'' with
(C) A list of operations and job titles         ``exposure to
 reasonably expected to involve airborne        beryllium.'' Both of
 exposure above the TWA PEL or STEL;.           these changes were
                                                adopted as proposed.
    (D) Procedures for minimizing cross-
     contamination, including the transfer of
     beryllium between surfaces, equipment,
     clothing, materials, and articles within
     beryllium work areas;
    (E) Procedures for keeping surfaces as
     free as practicable of beryllium;
    (F) Procedures for minimizing the
     migration of beryllium from beryllium
     work areas to other locations within or
     outside the workplace;
    (G) A list of engineering controls, work
     practices, and respiratory protection
     required by paragraph (f)(2) of this
     standard;
    (H) A list of personal protective
     clothing and equipment required by
     paragraph (h) of this standard; and
    (I) Procedures for removing, laundering,
     storing, cleaning, repairing, and
     disposing of beryllium-contaminated
     personal protective clothing and
     equipment, including respirators.
(ii) The employer must review and evaluate
 the effectiveness of each written exposure
 control plan at least annually and update
 it, as necessary, when:
    (A) Any change in production processes,
     materials, equipment, personnel, work
     practices, or control methods results,
     or can reasonably be expected to result,
     in new or additional airborne exposure
     to beryllium;

    (B) The employer is notified that an
     employee is eligible for medical removal
     in accordance with paragraph (l)(1) of
     this standard for evaluation at a CBD
     diagnostic center, or shows signs or
     symptoms associated with exposure to
     beryllium; or
    (C) The employer has any reason to
     believe that new or additional airborne
     exposure is occurring or will occur.
(iii) The employer must make a copy of the
 written exposure control plan accessible to
 each employee who is, or can reasonably be
 expected to be, exposed to airborne
 beryllium in accordance with OSHA's Access
 to Employee Exposure and Medical Records
 (Records Access) standard (29 CFR
 1910.1020(e)).
Sec.   1910.1024(h)(3)(iii)--Personal          This final rule revised
 Protective Clothing and Equipment--Cleaning    (h)(3)(iii) by replacing
 and Replacement.                               the phrase ``airborne
(3)(iii) The employer must inform in writing    exposure to and dermal
 the persons or the business entities who       contact with beryllium''
 launder, clean, or repair the personal         with ``exposure to
 protective clothing or equipment required by   beryllium.'' This change
 this standard of the potentially harmful       was adopted as proposed.
 effects of exposure to beryllium and that
 the personal protective clothing and
 equipment must be handled in accordance with
 this standard..
Sec.   1910.1024(j)(3)(i), (ii), & (iii)--     This final rule revised
 Housekeeping--Disposal, recycling, and reuse.  (j)(3) by explicitly
(3)(i) Except for intra-plant transfers, when   addressing transferring
 the employer transfers materials that          materials for reuse;
 contain at least 0.1% beryllium by weight or   reorganizing the
 are contaminated with beryllium for            previous two provisions
 disposal, recycling, or reuse, the employer    into three to allow the
 must label the materials in accordance with    agency to incorporate
 paragraph (m)(3) of this standard;.            the new reuse
(ii) Except for intra-plant transfers,          requirements, while also
 materials designated for disposal that         setting out each
 contain at least 0.1% beryllium by weight or   distinct obligation
 are contaminated with beryllium must be        clearly; replacing the
 cleaned to be as free as practicable of        phrase materials ``that
 beryllium or placed in enclosures that         contain beryllium in
 prevent the release of beryllium-containing    concentrations of 0.1
 particulate or solutions under normal          percent by weight or
 conditions of use, storage, or transport,      more'' with a shorter,
 such as bags or containers; and.               easier to understand
(iii) Except for intra-plant transfers,         phrase: Materials ``that
 materials designated for recycling or reuse    contain at least 0.1
 that contain at least 0.1% beryllium by        percent beryllium by
 weight or are contaminated with beryllium      weight;'' clarifying
 must be cleaned to be as free as practicable   that the rule's
 of beryllium or placed in enclosures that      requirements for
 prevent the release of beryllium-containing    disposal, recycling, and
 particulate or solutions under normal          reuse do not apply to
 conditions of use, storage, or transport,      intra-plant transfers;
 such as bags or containers..                   clarifying the enclosure
                                                requirements by
                                                providing more detail on
                                                what constitutes an
                                                appropriate enclosure;
                                                allowing for the
                                                cleaning of materials
                                                bound for disposal; and
                                                removing the undefined
                                                phrase ``surface
                                                beryllium
                                                contamination.''
                                               In addition to the above
                                                actions, which were all
                                                adopted as proposed, in
                                                this final rule, OSHA
                                                revised paragraph
                                                (j)(3)(i) to explicitly
                                                incorporate the
                                                clarification that the
                                                rule's requirements for
                                                disposal, recycling, and
                                                reuse do not apply to
                                                intra-plant transfers.

Sec.   1910.1024(k)(2)--Medical Surveillance.  Paragraph (k)(2)(i)(B) of
 (2) Frequency.                                 the 2017 standard
The employer must provide a medical             previously required the
 examination:.                                  employer to provide a
(i) Within 30 days after determining that:...   medical examination
(A) An employee meets the criteria of           within 30 days after
 paragraph (k)(1)(i)(A), unless the employee    determining that the
 has received a medical examination, provided   employee shows signs or
 in accordance with this standard, within the   symptoms of CBD or other
 last two years; or.                            beryllium-related health
(B) An employee meets the criteria of           effects or that the
 paragraph (k)(1)(i)(B) of this standard..      employee has been
(ii) At least every two years thereafter for    exposed to beryllium in
 each employee who continues to meet the        an emergency. The 2018
 criteria of paragraph (k)(1)(i)(A), (B), or    NPRM would have added
 (D) of this standard..                         paragraph (k)(2)(iv) to
(iii) At the termination of employment for      require employers to
 each employee who meets any of the criteria    offer an examination to
 of paragraph (k)(1)(i) of this standard at     employees exposed to
 the time the employee's employment             beryllium in an
 terminates, unless an examination has been     emergency at least one
 provided in accordance with this standard      year after but no more
 during the six months prior to the date of     than two years after the
 termination. Each employee who meets the       employee is exposed to
 criteria of paragraph (k)(1)(i)(C) of this     beryllium in an
 standard and who has not received an           emergency. It also would
 examination since exposure to beryllium        have amended paragraph
 during the emergency must be provided an       (k)(2)(i)(B) to focus
 examination at the time the employee's         only on the frequency of
 employment terminates..                        examinations for
(iv) For an employee who meets the criteria     employees who show signs
 of paragraph (k)(1)(i)(C) of this standard:.   or symptoms of CBD or
(A) If that employee has not received a         other beryllium-related
 medical examination within the previous two    health effects.
 years pursuant to paragraph (k)(1)(i) of      This final rule's
 this standard, then within 30 days after the   provisions differ from
 employee meets the criteria of paragraph       those in the proposal.
 (k)(1)(i)(C) of this standard; or.             Specifically, in this
(B) If that employee has received a medical     final rule, OSHA removed
 examination within the previous two years      the requirement for a
 pursuant to paragraph (k)(1)(i) of this        medical examination
 standard, then at least one year but no more   within 30 days of
 than two years after the employee meets the    exposure in an emergency
 criteria of paragraph (k)(1)(i)(C) of this     and added paragraph
 standard..                                     (k)(2)(iv). Final
                                                paragraph (k)(2)(iv)(A)
                                                requires the employer to
                                                offer a medical
                                                examination to an
                                                employee within 30 days
                                                after the employee was
                                                exposed to beryllium in
                                                an emergency, if the
                                                employee has not had an
                                                examination under
                                                paragraph (k)(1)(i)
                                                within the last two
                                                years, while final
                                                paragraph (k)(2)(iv)(B)
                                                requires the employer to
                                                offer a medical
                                                examination to an
                                                employee within one to
                                                two years after the
                                                employee was exposed to
                                                beryllium in an
                                                emergency, if the
                                                employee had an
                                                examination under
                                                paragraph (k)(1)(i) of
                                                the beryllium standard
                                                within the last two
                                                years. In addition, this
                                                final rule revised
                                                paragraph (k)(2)(iii) to
                                                require that each
                                                employee who is exposed
                                                in an emergency and has
                                                not received an
                                                examination since the
                                                emergency exposure must
                                                be provided an
                                                examination at the time
                                                employment is
                                                terminated.
                                               As proposed in the 2018
                                                NPRM, this final rule
                                                also amended paragraph
                                                (k)(2)(i)(B) to focus
                                                only on the frequency of
                                                examinations for
                                                employees who show signs
                                                or symptoms of CBD or
                                                other beryllium-related
                                                health effects.

Sec.   1910.1024(k)(7)--Medical Surveillance-- The 2018 NPRM would have
 Referral to the CBD Diagnostic Center.         amended paragraph (k)(7)
(7) CBD diagnostic center. (i) The employer     of the 2017 standard to
 must provide an evaluation at no cost to the   require employers to
 employee at a CBD diagnostic center that is    provide, at no cost to
 mutually agreed upon by the employer and the   the employee and within
 employee. The evaluation at the CBD            a reasonable time after
 diagnostic center must be scheduled within     the initial consultation
 30 days, and must occur within a reasonable    with the CBD diagnostic
 time, of:.                                     center, any of the
(A) The employer's receipt of a physician's     following tests if
 written medical opinion to the employer that   deemed appropriate by
 recommends referral to a CBD diagnostic        the examining physician
 center; or.                                    at the CBD diagnostic
(B) The employee presenting to the employer a   center: Pulmonary
 physician's written medical report             function testing (as
 indicating that the employee has been          outlined by the American
 confirmed positive or diagnosed with CBD, or   Thoracic Society
 recommending referral to a CBD diagnostic      criteria),
 center..                                       bronchoalveolar lavage
(ii) The employer must ensure that, as part     (BAL), and
 of the evaluation, the employee is offered     transbronchial biopsy.
 any tests deemed appropriate by the            The proposal also
 examining physician at the CBD diagnostic      specified the timing of
 center, such as pulmonary function testing     the initial
 (as outlined by the American Thoracic          consultation.
 Society criteria), bronchoalveolar lavage     This final rule's
 (BAL), and transbronchial biopsy. If any of    provisions differ from
 the tests deemed appropriate by the            those in the proposal.
 examining physician are not available at the   Specifically, OSHA
 CBD diagnostic center, they may be performed   revised paragraph
 at another location that is mutually agreed    (k)(7)(i) to require
 upon by the employer and the employee..        that the evaluation must
(iii) The employer must ensure that the         be scheduled within 30
 employee receives a written medical report     days, and must occur
 from the CBD diagnostic center that contains   within a reasonable
 all the information required in paragraph      time, of the employer
 (k)(5)(i), (ii), (iv), and (v) of this         receiving one of the
 standard and that the PLHCP explains the       types of documentation
 results of the examination to the employee     listed in paragraph
 within 30 days of the examination..            (k)(7)(i)(A) or (B).
(iv) The employer must obtain a written         Previously, the general
 medical opinion from the CBD diagnostic        industry standard
 center within 30 days of the medical           required employers to
 examination. The written medical opinion       provide the examination
 must contain only the information in           within 30 days of the
 paragraph (k)(6)(i), as applicable, unless     employer receiving one
 the employee provides written authorization    of the types of
 to release additional information. If the      documentation listed in
 employee provides written authorization, the   paragraph (k)(7)(i)(A)
 written opinion must also contain the          or (B).
 information from paragraphs (k)(6)(ii),       This final rule also
 (iv), and (v), if applicable..                 added a provision, in
(v) The employer must ensure that each          paragraph (k)(7)(ii),
 employee receives a copy of the written        which specifies that the
 medical opinion from the CBD diagnostic        employer must ensure
 center described in paragraph (k)(7) of this   that, as part of the
 standard within 30 days of any medical         evaluation, the employee
 examination performed for that employee..      is offered any tests
(vi) After an employee has received the         deemed appropriate by
 initial clinical evaluation at a CBD           the examining physician
 diagnostic center described in paragraphs      at the CBD diagnostic
 (k)(7)(i) and (ii) of this standard, the       center, such as
 employee may choose to have any subsequent     pulmonary function
 medical examinations for which the employee    testing (as outlined by
 is eligible under paragraph (k) of this        the American Thoracic
 standard performed at a CBD diagnostic         Society criteria),
 center mutually agreed upon by the employer    bronchoalveolar lavage
 and the employee, and the employer must        (BAL), and
 provide such examinations at no cost to the    transbronchial biopsy.
 employee..                                     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.
Sec.   1910.1024(n)(1)(i), (ii), & (iii)--     This final rule removed
 Recordkeeping--Air Monitoring Data.            the requirement for
(i) The employer must make and maintain a       collection and recording
 record of all exposure measurements taken to   of Social Security
 assess airborne exposure as prescribed in      numbers from this
 paragraph (d) of this standard..               provision. This change
(ii) This record must include at least the      was adopted as proposed.
 following information:.
    (A) The date of measurement for each
     sample taken;
    (B) The task that is being monitored;
    (C) The sampling and analytical methods
     used and evidence of their accuracy;
    (D) The number, duration, and results of
     samples taken;
    (E) The type of personal protective
     clothing and equipment, including
     respirators, worn by monitored employees
     at the time of monitoring; and
    (F) The name and job classification of
     each employee represented by the
     monitoring, indicating which employees
     were actually monitored.
(iii) The employer must ensure that exposure
 records are maintained and made available in
 accordance with the Records Access standard
 (29 CFR 1910.1020).
Sec.   1910.1024(n)(3)(i), (ii), & (iii)--     This final rule removed
 Recordkeeping--Medical Surveillance.           the requirement for
(i) The employer must make and maintain a       collection and recording
 record for each employee covered by medical    of Social Security
 surveillance under paragraph (k) of this       numbers from this
 standard..                                     provision. This change
(ii) The record must include the following      was adopted as proposed.
 information about the employee:.
    (A) Name and job classification;
    (B) A copy of all licensed physicians'
     written medical opinions for each
     employee; and
    (C) A copy of the information provided to
     the PLHCP as required by paragraph
     (k)(4) of this standard.
(iii) The employer must ensure that medical
 records are maintained and made available in
 accordance with the Records Access standard
 (29 CFR 1910.1020).

Sec.   1910.1024(n)(4)(i) & (ii)--             This final rule removed
 Recordkeeping--Training.                       the requirement for
(4) Training. (i) At the completion of any      collection and recording
 training required by this standard, the        of Social Security
 employer must prepare a record that            numbers from this
 indicates the name and job classification of   provision. This change
 each employee trained, the date the training   was adopted as proposed.
 was completed, and the topic of the
 training..
(ii) This record must be maintained for three
 years after the completion of training.
------------------------------------------------------------------------

VI. Federalism

    OSHA reviewed this rule in accordance with the Executive Order on
Federalism (Executive Order 13132, 64 FR 43255, August 10, 1999), which
requires that federal agencies, to the extent possible, refrain from
limiting state policy options, consult with states prior to taking any
actions that would restrict state policy options, and take such actions
only when clear constitutional and statutory authority exists and the
problem is national in scope. Executive Order 13132 provides for
preemption of state law only with the expressed consent of Congress.
Any such preemption is to be limited to the extent possible.
    Under Section 18 of the OSH Act, Congress expressly provides that
states and U.S. territories may adopt, with federal approval, a plan
for the development and enforcement of occupational safety and health
standards. OSHA refers to such states and territories as ``State
Plans'' (29 U.S.C. 667). Occupational safety and health standards
developed by State Plans must be at least as effective in providing
safe and healthful employment and places of employment as the federal
standards. Subject to these requirements, State Plans are free to
develop and enforce under state law their own requirements for safety
and health standards.
    OSHA previously concluded from its analysis for the 2017 final rule
that promulgation of the beryllium standard complies with E.O. 13132
(82 FR at 2633). The amendments in this final rule do not change that
conclusion. In states without OSHA-approved State Plans, Congress
expressly provides for OSHA standards to preempt state occupational
safety and health standards in areas addressed by the federal
standards. In these states, this rule limits state policy options in
the same manner as every standard promulgated by OSHA. In states with
OSHA-approved State Plans, this rulemaking does not significantly limit
state policy options.

VII. State Plans

    When federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, the states and U.S. Territories with
their own OSHA-approved occupational safety and health plans (State
Plans) must promulgate a state standard adopting such new federal
standard, or more stringent amendment to an existing federal standard,
or an at least as effective equivalent thereof, within six months of
promulgation of the new federal standard or more stringent amendment.
The state may demonstrate that a standard change is not necessary
because the state standard is already the same or at least as effective
as the federal standard change. Because a state may include standards
and standard provisions that are equally or more stringent than federal
standards, it would generally be unnecessary for a state to revoke a
standard when the comparable federal standard is revoked or made less
stringent. To avoid delays in worker protection, the effective date of
the state standard and any of its delayed provisions must be the date
of state promulgation or the federal effective date, whichever is
later. The Assistant Secretary may permit a longer time period if the
state makes a timely demonstration that good cause exists for extending
the time limitation (29 CFR 1953.5(a)).
    Of the 28 states and territories with OSHA-approved State Plans, 22
cover public and private-sector employees: Alaska, Arizona, California,
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada,
New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina,
Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The
remaining six states and territories cover only state and local
government employees: Connecticut, Illinois, Maine, New Jersey, New
York, and the Virgin Islands.
    As discussed in detail below in Section XI, Summary and Explanation
of the Final Rule, the majority of the changes made by this final rule
will clarify certain provisions and simplify or improve employer
compliance. After considering all of the changes made by this final
rule and the record as a whole, OSHA believes that this final rule
enhances employee safety, in part by revising provisions that may be
misinterpreted. Therefore, OSHA has determined that, within six months
of the rule's promulgation date, State Plans must review their state
standards and adopt amendments to those standards that are at least as
effective as the amendments to the beryllium general industry standard
finalized herein, as required by 29 CFR 1953.5(a), unless the State
Plans demonstrate that such amendments are not necessary because their
existing standards are already at least as effective at protecting
workers as this final rule. This decision is also informed by a comment
from Materion Brush, Inc. (Materion), in which Materion argued that
OSHA should require states to adopt the proposed changes (Document ID
0038-A5, p. 2).\9\ No other stakeholders opined on this issue.
---------------------------------------------------------------------------

    \9\ OSHA notes that Materion also argued that the State Plans
that have already adopted the original OSHA standard should be
required to adopt the changes OSHA previously adopted in the 2018
direct final rule, as well as the changes that result from the
current rulemaking (Document ID 0038-A5, p. 1). Whether OSHA should
require State Plans to adopt the changes made in the 2018 direct
final rule is out of the scope of this rulemaking and, thus, will
not be considered here.
---------------------------------------------------------------------------

VIII. Unfunded Mandates Reform Act

    OSHA reviewed this final rule according to the Unfunded Mandates
Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and Executive Order
13132 (64 FR 43255). As discussed above in Section IV, Final Economic
Analysis and Regulatory Flexibility Act Certification (FEA), of this
preamble, the agency determined that this final rule will not impose
significant additional costs on any private- or public-sector entity.
Further, OSHA previously concluded that the rule will not impose a
federal mandate on the private sector in excess of $100 million
(adjusted annually for inflation) in expenditures in any one year (82
FR at 2634). Accordingly, this final rule will not require significant
additional

expenditures by either public or private employers.
    As noted above under Section VII, State Plans, the agency's
standards do not apply to state and local governments except in states
that have elected voluntarily to adopt a State Plan approved by the
agency. Consequently, this final rule does not meet the definition of a
``federal intergovernmental mandate'' (see Section 421(5) of the UMRA
(2 U.S.C. 658(5))). Therefore, for the purposes of the UMRA, the agency
certifies that this final rule will not mandate that state, local, or
tribal governments adopt new, unfunded regulatory obligations of, or
increase expenditures by the private sector by, more than $100 million
in any year.

IX. Consultation and Coordination With Indian Tribal Governments

    OSHA has reviewed this final rule in accordance with Executive
Order 13175 (65 FR 67249) and determined that it does not have ``tribal
implications'' as defined in that order. This final rule does not have
substantial direct effects on one or more Indian tribes, on the
relationship between the federal government and Indian tribes, or on
the distribution of power and responsibilities between the federal
government and Indian tribes.

X. Environmental Impacts

    OSHA has reviewed this final rule in accordance with the
requirements of the National Environmental Policy Act of 1969 (NEPA)
(42 U.S.C. 4321 et seq.), the Council on Environmental Quality NEPA
regulations (40 CFR part 1500-1508), and the Department of Labor's NEPA
procedures (29 CFR part 11). As a result of this review, OSHA has
determined that this final rule will not have a significant impact on
air, water, or soil quality; plant or animal life; the use of land; or
aspects of the external environment.

XI. Summary and Explanation of the Final Rule

    On December 11, 2018, OSHA published a Notice of Proposed
Rulemaking (83 FR 63746) (2018 NPRM) proposing changes to a number of
provisions in the general industry beryllium standard. Following
publication of the 2018 NPRM, a variety of stakeholders, including
representatives of industry, labor, medical groups, public health
organizations, federal and state government agencies, academia, trade
associations, and private citizens, submitted comments on OSHA's
proposed changes. After reviewing and carefully considering these
comments and the remainder of the record, OSHA has decided to adopt the
majority of the changes proposed, as well as additional changes that
were prompted by the comments received. These changes clarify certain
provisions and simplify or improve compliance for the other provisions
of the standard. OSHA believes that these changes will maintain safety
and health protections for workers and will further enhance worker
protections by ensuring that the standard is well understood and
implemented according to the agency's intent.
    The following discussion summarizes the comments received on the
proposed changes to the general industry standard, lays out OSHA's
responses to and final determinations regarding the issues in the
comments, and explains each new or revised provision in this final rule
including details on any modification made from the proposal. As
discussed in detail below, the changes include the addition of one
definition and modifications to five existing definitions in paragraph
(b) and revisions to seven of the standard's other paragraphs,
including paragraph (f), Methods of compliance; paragraph (h), Personal
protective clothing and equipment; paragraph (i), Hygiene areas and
practices; paragraph (j), Housekeeping; paragraph (k), Medical
surveillance; paragraph (m), Communication of hazards; and paragraph
(n), Recordkeeping. The final rule also replaces the 2017 standard's
Appendix A with a new appendix designed to supplement the final
standard's definition of beryllium work area.
    Definitions.
    Paragraph (b) of the beryllium standard for general industry
provides definitions of key terms used in the standard. In this final
rule, OSHA is changing or adding six terms in the definitions paragraph
of the standard. The terms that OSHA is changing or adding are
beryllium sensitization, beryllium work area, CBD diagnostic center,
chronic beryllium disease, confirmed positive, and dermal contact with
beryllium.
    Beryllium sensitization.
    OSHA is adding the following definition for beryllium
sensitization: ``a response in the immune system of a specific
individual who has been exposed to beryllium. There are no associated
physical or clinical symptoms and no illness or disability with
beryllium sensitization alone, but the response that occurs through
beryllium sensitization can enable the immune system to recognize and
react to beryllium. While not every beryllium-sensitized person will
develop chronic beryllium disease (CBD), beryllium sensitization is
essential for development of CBD.'' The agency is adding this
definition to clarify other provisions in the standard, such as the
definitions of chronic beryllium disease (CBD) and confirmed positive,
as well as the provisions for medical surveillance in paragraph (k) and
hazard communication in paragraph (m).
    This definition of beryllium sensitization is identical to the
definition proposed in the 2018 NPRM and is consistent with information
provided in the 2017 final beryllium rule (82 FR 2470). In the preamble
to the 2017 final rule, OSHA found that individuals sensitized through
either the dermal or inhalation exposure pathways respond to beryllium
through the formation of a beryllium-protein complex, which then binds
to T-cells stimulating a beryllium-specific immune response (82 FR at
2494). The formation of the T-cell-beryllium-protein complex that
results in beryllium sensitization rarely manifests in any outward
symptoms (such as coughing or wheezing); most who are sensitized show
no symptoms at all (see 82 FR at 2492, 2527). Once an individual has
been sensitized, any subsequent beryllium exposures via inhalation can
progress to serious lung disease through the formation of granulomas
and fibrosis (see 82 FR at 2491-98). Since the pathogenesis of CBD
involves a beryllium-specific, cell-mediated immune response, CBD
cannot occur in the absence of sensitization (82 FR at 2492; see also
NAS, 2008 (Document ID OSHA-H005C-2006-0870-1355)). Therefore, this
definition's explanation that beryllium sensitization is essential for
development of CBD is consistent with the agency's findings in the 2017
final rule.
    Several commenters expressed support for OSHA's inclusion of a
definition of beryllium sensitization in the beryllium general industry
standard, including NJH (Document ID 0022, p. 2), the United
Steelworkers (USW) (Document ID 0033, p. 1), Materion (Document ID
0038, p. 8), the U.S. Department of Defense (DOD) (Document ID 0029, p.
1), and Edison Electric Institute (EEI) (Document ID 0031, p. 2).
According to the USW, the proposed definition is clear and accurate,
and is necessary because the beryllium standard includes many
provisions related to the recognition of and appropriate response to
beryllium sensitization among beryllium-exposed workers (Document ID
0033, p. 1).

Materion similarly commented that inclusion of the proposed definition
in the standard would improve workers' and employers' understanding of
this term (Document ID 0038, p. 4).
    While OSHA received no objections to including a definition of
beryllium sensitization in the beryllium standard, several commenters
suggested changes to the proposed definition. The National Supplemental
Screening Program (NSSP) and NJH recommended that the definition of
beryllium sensitization should include the following text, based on the
ATS Statement on Beryllium: ``Beryllium sensitization is a response in
the immune system of an individual who has been exposed to beryllium. A
diagnosis of [beryllium sensitization] can be based on two abnormal
blood BeLPTs, one abnormal and one borderline blood BeLPT, three
borderline BeLPTs, or one abnormal bronchoalveolar lavage (BAL) BeLPT.
Beryllium sensitization is essential for development of CBD'' (Document
ID 0027 p. 1; 0022, p. 2; see also Document ID OSHA-H005C-2006-0870-
0364, pp. 1, 44). Neither organization, however, explained why this
definition of beryllium sensitization should be used instead of the
definition OSHA proposed.
    OSHA disagrees with this recommendation. The agency is providing a
definition of beryllium sensitization to give stakeholders a general
understanding of what beryllium sensitization is and its relationship
to CBD. Information pertinent to medical identification of
sensitization is provided in the definition of confirmed positive,
which appears later in this section. OSHA has determined that the
agency's definitions of beryllium sensitization and confirmed positive
together provide the information suggested by NJH and the NSSP. The
definition of confirmed positive explains how the results of BeLPT
testing should be interpreted in the context of the standard's
provisions that refer to that term, such as evaluation at a CBD
diagnostic center and medical removal protection. The confirmed
positive definition establishes that these benefits should be extended
to workers who have a pattern of BeLPT results, obtained in a three-
year period, consistent with the NJH and the NSSP's recommended
definition of beryllium sensitization. The remainder of the information
suggested by NJH and the NSSP, which pertains to the relationship of
beryllium sensitization to beryllium exposure, the immune system, and
the development of CBD, is included in the definition of beryllium
sensitization that OSHA proposed and is including in this final
standard. For these reasons, OSHA has decided not to adopt the language
suggested by NJH and the NSSP.
    The NSSP objected to the statement that no physical or clinical
symptoms, illness, or disability are associated with beryllium
sensitization alone, but did not explain the reason for their concern
with this statement (Document ID 0027, p. 1). Materion supported the
agency's inclusion of this information in the definition, stating that
``employees deserve to understand that beryllium sensitization does not
involve symptoms . . .'' (Document ID 0038, p. 5). The USW also
specifically supported the accuracy of this section of OSHA's proposed
definition of beryllium sensitization (Document ID 0033, p. 1).
    The agency has decided to retain this statement in the definition
of beryllium sensitization because it is important that employers and
employees understand the asymptomatic nature of beryllium sensitization
and the need for specialized testing such as the BeLPT. The statement
is consistent with OSHA's discussion of beryllium sensitization in the
2017 final rule (82 FR at 2492-99). As OSHA discussed in the 2017 final
rule, sensitization through dermal contact has sometimes been
associated with skin granulomas, contact dermatitis, and skin
irritation, but these reactions are rare and those sensitized through
dermal exposure to beryllium typically do not exhibit any outward signs
or symptoms (see 82 FR at 2488, 2491-92, 2527). OSHA determined that
while beryllium sensitization rarely leads to any outward signs or
symptoms, beryllium sensitization is an adverse health effect because
it is a change to the immune system that leads to risk of developing
CBD (82 FR at 2498-99). The agency believes that the asymptomatic
nature of beryllium sensitization, especially in the lung, should be
conveyed to employers and employees to emphasize why specialized
testing such as the BeLPT should be provided to workers who may have no
symptoms of illness associated with beryllium exposure. For these
reasons, OSHA is retaining the statement ``[t]here are no associated
physical or clinical symptoms and no illness or disability with
beryllium sensitization alone'' in the definition of beryllium
sensitization.
    The State of Washington Department of Labor and Industries,
Division of Occupational Safety and Health (DOSH), commented that
OSHA's proposed definition of beryllium sensitization places
unnecessary emphasis on the role that beryllium sensitization plays in
the development of CBD. According to DOSH, ``[t]his language may cause
confusion with proper diagnosis of CBD and application of the rule
requirements for workers who have developed CBD without a confirmed
beryllium sensitization'' (Document ID 0023, p. 1). Other commenters,
however, including NJH, the NSSP, and the USW, supported including the
statement that beryllium sensitization is necessary for the development
of CBD in OSHA's definition of beryllium sensitization (Document ID
0022, p. 2; 0027, p. 1; 0033, p. 1).
    Following consideration of DOSH's comment, OSHA has determined that
this information should remain in the definition of beryllium
sensitization (as well as the definition of chronic beryllium disease,
discussed later). OSHA believes that an understanding of the
relationship between beryllium sensitization and CBD is key to workers'
and employers' understanding of the beryllium standard. By including
the role that sensitization plays in the development of CBD in the
definition of beryllium sensitization, OSHA intends to make a number of
things clear to workers and employers: That beryllium sensitization,
although not itself a disease, is nevertheless an adverse health effect
that presents a risk for developing CBD and thus should be prevented;
the need to identify beryllium sensitization through regular medical
screening; and why workers who are confirmed positive should be offered
specialized medical evaluation and medical removal protection. OSHA
notes that DOSH does not dispute the factual accuracy of OSHA's
statement regarding the role beryllium sensitization plays in the
development of CBD, which the agency established in the Health Effects
section of the 2017 final rule (82 FR at 2495-96).
    Nevertheless, OSHA agrees with DOSH that it is not always necessary
to identify a worker as beryllium sensitized by the BeLPT as part of a
diagnosis of CBD, and the agency acknowledges that some sensitized
individuals may not be confirmed positive for beryllium sensitization
by BeLPT testing. OSHA established in the Health Effects section of the
preamble to the 2017 final rule that while BeLPT testing is helpful to
identify workers at risk for CBD and to differentiate CBD from
respiratory diseases with similar clinical presentation, CBD can be
diagnosed in the absence of a confirmed positive BeLPT (see 82 FR at
2499-5002) (discussing a number of studies conducted prior to the
development of the BeLPT). At least one study in the rulemaking record
found that some

beryllium workers who would not have been confirmed positive by their
BeLPT results were found to be sensitized via the BAL BeLPT and went on
to develop CBD (Newman et al., 2001, Document ID OSHA-H005C-2006-0870-
1354, p. 234). Other studies indicate that the BeLPT has a false-
negative rate of approximately 25-28 percent (that is, approximately
25-28 percent of individuals who have a single normal BeLPT result are
in fact sensitized) (Middleton et al., 2011, Document ID OSHA-H005C-
2006-0870-0399, p. 2 (25 percent); Stange et al., 2004, Document ID
OSHA-H005C-2006-0870-1402, p. 457 (27.7 percent)). Because the BeLPT
itself may have a false-negative result and because other means exist
to diagnose CBD apart from the BeLPT, examining physicians should have
the latitude to diagnose CBD in the absence of a ``confirmed positive''
pattern of BeLPT results. Moreover, as discussed below, the
determination that an employee is ``confirmed positive'' under the
beryllium standard acts only as a trigger for medical monitoring and
surveillance and OSHA does not intend the phrase ``confirmed positive''
to be interchangeable with ``beryllium sensitized.''
    The standard provides a mechanism for an employee to be referred to
a CBD diagnostic center and diagnosed with CBD, even in the absence of
a confirmed positive blood BeLPT result. Under paragraph (k)(5)(iii),
the licensed physician can recommend referral to a CBD diagnostic
center if he or she deems it appropriate. As OSHA explained in the
preamble to the 2017 final rule, the licensed physician could recommend
an evaluation at a CBD diagnostic center based on questionable BeLPT
findings (82 FR at 2714). For example, in a scenario where an employee
has repeating borderline or abnormal results but does not meet the
definition for confirmed positive, referral to a CBD diagnostic center
may be appropriate.
    Furthermore, the standard does not specify how CBD is diagnosed and
gives the licensed physician at the CBD diagnostic center discretion
for making that diagnosis, including by means other than blood BeLPT
results. The diagnostic criteria for CBD include (1) history of
beryllium exposure; (2) histopathological evidence of non-caseating
granulomas or mononuclear cell infiltrates in the absence of infection;
and (3) positive blood or BAL BeLPT (82 FR at 2500; see also Newman et
al., 1989 (Document ID OSHA-H005C-2006-0870-0196, p. 1480)). The
availability of transbronchial lung biopsy facilitates the evaluation
of the second criterion, by making histopathological confirmation
possible in almost all cases (82 FR at 2500). The ATS has noted that
the BAL BeLPT can be useful in diagnosing CBD in individuals who have
normal blood BeLPT results and considers one positive BAL BeLPT
sufficient for the diagnosis of beryllium sensitization (Document ID
OSHA-H005C-2006-0870-0364, pp. 44-45). OSHA expects that the licensed
physician might apply such criteria in the diagnosis of CBD, without
relying on a confirmed positive finding based on blood BeLPT results.
    In summary, OSHA believes that emphasizing the role that beryllium
sensitization plays in the development of CBD provides employers and
employees with important context for understanding the beryllium
standard. At the same time, the agency acknowledges that employees may
be diagnosed with CBD in the absence of a confirmed positive BeLPT, and
the beryllium standard allows for such a diagnosis. Thus, following
consideration of the record of comments on OSHA's proposed definition
of beryllium sensitization, the agency is finalizing the definition as
proposed in the 2018 NPRM. The addition of this definition for
beryllium sensitization does not change employer obligations under
paragraphs (k) and (m) and, therefore, OSHA expects that the new
definition will maintain safety and health protections for workers.
    Beryllium work area.
    Paragraph (b) of the final rule defines beryllium work area as any
work area where materials that contain at least 0.1 percent beryllium
by weight are processed either: (1) During any of the operations listed
in Appendix A of the standard; or (2) where employees are, or can
reasonably be expected to be, exposed to airborne beryllium at or above
the action level. The presence of a beryllium work area triggers a
number of requirements in the standard. These include the requirements
under paragraphs (e)(1)(i) and (2)(i) to establish, maintain, and
demarcate the boundaries of each beryllium work area, as well as
requirements under paragraphs (f)(1)(i)(D) and (F), written exposure
control plan requirements; paragraph (f)(2)(ii), required exposure
controls; paragraphs (i)(1) and (2), general hygiene practices and
change rooms requirements; paragraphs (j)(1)(i) and (2), housekeeping
requirements; and paragraph (m)(4)(ii)(B), employee training. The
establishment of beryllium work areas serves to ensure that employees
and other persons are aware of the potential presence of airborne
beryllium; to control access to these areas; and in conjunction with
other provisions such as the written control plan, hygiene, and
housekeeping requirements, to minimize the transfer of beryllium to
other areas of the facility and reduce the potential for exposure to
other employees.
    The term beryllium work area (as revised in the 2018 direct final
rule) was defined as any work area (1) containing a process or
operation that can release beryllium and that involves material that
contains at least 0.1 percent beryllium by weight; and, (2) where
employees are, or can reasonably be expected to be, exposed to airborne
beryllium at any level or where there is the potential for dermal
contact with beryllium. That definition was developed in response to
stakeholder comments on the 2015 NPRM, which had proposed to define a
beryllium work area as any work area where there is potential for
exposure to airborne beryllium at any level, and which did not include
dermal contact as a trigger for establishment of a beryllium work area.
Some stakeholders argued that the definition proposed in the 2015 NPRM
was overly broad and could be interpreted as applying to most or all
areas of a worksite, regardless of the work processes or operations
occurring in those areas. Commenters also expressed concern that the
definition was vague and should be triggered on a measurable threshold
of exposure. NIOSH commented that the proposed definition's focus on
airborne beryllium did not account for the potential contribution of
dermal exposures to total exposure (82 FR at 2659).
    In response to these comments, OSHA modified the definition in the
2017 final rule to require the presence of a beryllium-releasing
process. The agency explained in the preamble that triggering the
requirement of creating a beryllium work area on a specific threshold
level of exposure would be insufficiently protective of workers, but
also explained that the agency did not intend for a beryllium work area
to be established in areas where work processes or operations that
release beryllium do not occur, such as where employees handle articles
containing beryllium (82 FR at 2659-60). Rather, the purpose of
establishing beryllium work areas is to identify and demarcate areas
within a facility where processes or operations release beryllium so
that necessary control measures can be implemented, such as those
designed to prevent the migration of beryllium to other areas where
beryllium is not processed or released. OSHA clarified this intent by
defining a beryllium work

area as an area that contains processes or operations that release
beryllium to which workers could be exposed. Additionally, OSHA
accounted for NIOSH's concern by including the potential for dermal
contact with beryllium in the definition (see 82 FR at 2658-60).
    In the preamble to the 2017 final rule, however, OSHA disagreed
with commenters who claimed that the proposed definition of beryllium
work area was impermissibly vague. The agency explained that, by
limiting the trigger for beryllium work areas to exposures generated
from a beryllium-releasing process or operation within the area, the
definition made clear that the requirements were not triggered solely
on the fact that an employee may be handling solid material containing
beryllium. Additionally, any employer who had doubts about whether a
process was releasing beryllium or created the potential for dermal
contact with beryllium could use air sampling or wipe sampling to
determine where the boundary of a beryllium work area should be
established. OSHA reasoned that, rather than rendering the provision
vague, defining a beryllium work area in a performance-based manner
left employers flexibility in complying with the standard (82 FR at
2659).
    Nevertheless, following publication of the 2017 standard, OSHA
continued to hear from stakeholders that the definition of beryllium
work area remained a source of substantial uncertainty and confusion.