[Federal Register Volume 85, Number 169 (Monday, August 31, 2020)]
[Rules and Regulations]
[Pages 53910-53999]
[FR Doc No: 2020-18017]

Vol. 85

Monday,

No. 169

August 31, 2020

Part II

 Department of Labor

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 Occupational Safety and Health Administration

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29 CFR Parts 1915 and 1926

Occupational Exposure to Beryllium and Beryllium Compounds in
Construction and Shipyard Sectors; Final Rule

Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Rules
and Regulations

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1915 and 1926

[Docket No. OSHA-H005C-2006-0870]
RIN 1218-AD29

Occupational Exposure to Beryllium and Beryllium Compounds in
Construction and Shipyard Sectors

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

ACTION: Final rule.

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SUMMARY: OSHA is amending its existing construction and shipyard
standards for occupational exposure to beryllium and beryllium
compounds to clarify certain provisions and simplify or improve
compliance. These changes are designed to accomplish three goals: to
more appropriately tailor the requirements of the construction and
shipyards standards to the particular exposures in these industries in
light of partial overlap between the beryllium standards' requirements
and other OSHA standards; to aid compliance and enforcement across the
beryllium standards by avoiding inconsistency, where appropriate,
between the shipyards and construction standards and recent revisions
to the general industry standard; and to clarify certain requirements
with respect to materials containing only trace amounts of beryllium.
This final rule does not affect the general industry beryllium
standard.

DATES: This rule is effective September 30, 2020.

ADDRESSES: For purposes of 28 U.S.C. 2112(a), OSHA designates Mr.
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>.
    Copies of this Federal Register document and news releases:
Electronic copies of these documents are available at OSHA's web page
at https://www.osha.gov.

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

Table of Contents

I. Background
II. Pertinent Legal Authority
III. Summary and Explanation of the Final Rule
IV. Final Economic Analysis
V. Economic Feasibility Analysis and Regulatory Flexibility
Certification
VI. OMB Review Under the Paperwork Reduction Act of 1995
VII. Federalism
VIII. State Plans
IX. Unfunded Mandates Reform Act
X. Environmental Impacts
XI. Consultation and Coordination With Indian Tribal Governments
Authority and Signature

I. Background

    On January 9, 2017, OSHA published its final rule Occupational
Exposure to Beryllium and Beryllium Compounds in the Federal Register
(82 FR 2470). The final rule established three comprehensive health
standards to protect workers from occupational exposure to beryllium
and beryllium compounds in the general industry (29 CFR 1910.1024),
construction (29 CFR 1926.1124), and shipyards (29 CFR 1915.1024)
sectors. In the final rule, 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. The 2017 final rule went into effect on May 20, 2017, and
OSHA began enforcing the PEL and STEL in the construction and shipyard
sectors 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.
    On June 27, 2017, based on stakeholder feedback and a review of
applicable existing standards, OSHA published a notice of proposed
rulemaking (NPRM) proposing to revoke the ancillary provisions for both
the construction and shipyards standards while retaining the new lower
PEL of 0.2 [micro]g/m\3\ and STEL of 2.0 [mu]g/m\3\ for those sectors
(82 FR 29182).\1\ OSHA stated in the proposal that it was also
considering extending the compliance dates in the January 9, 2017,
final rule by a year for the construction and shipyard standards. OSHA
reasoned that this potential extension would give affected employers
additional time to come into compliance with the final rule's
requirements, which could be warranted by the uncertainty created by
the proposal. OSHA also stated in the proposal that it would not
enforce the construction and shipyard standards without further notice
while the rulemaking was underway.\2\
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    \1\ For a full discussion of the events leading to the proposed
rule, see the preamble to the 2017 NPRM (82 FR at 29185-88).
    \2\ Subsequently, in March 2018, OSHA stated that it would begin
enforcing the PEL and STEL on May 11, 2018 (see Memorandum for
Regional Administrators, Delay of Enforcement of the Beryllium
Standards under 29 CFR 1910.1024, 29 CFR 1915.1024, and 29 CFR
1926.1124, Mar. 2, 2018, available at https://www.osha.gov/laws-regs/standardinterpretations/2018-03-02).
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    On May 7, 2018, OSHA issued a direct final rule (DFR) adopting a
number of clarifying amendments to the general industry beryllium
standard to address the application of that standard to materials
containing trace amounts of beryllium (83 FR 19936). The DFR amended
the text of the general industry standard to clarify OSHA's intent with
respect to certain terms in the standard, including the definition of
beryllium work area, the definition of emergency, and the meaning of
the terms dermal contact and beryllium contamination. 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 percent beryllium by weight. The DFR became effective on July 6,
2018, because OSHA did not receive significant adverse comment in
response to the DFR (see 83 FR 1045).
    On December 11, 2018, OSHA published another NPRM to modify several
of the general industry beryllium standard's definitions, along with
the provisions for methods of compliance, personal protective clothing
and equipment, hygiene areas and practices,

housekeeping, medical surveillance, communication of hazards, and
recordkeeping (83 FR 63746). OSHA reasoned in part that the proposed
modifications would provide clarification and simplify or improve
compliance. OSHA recently finalized this proposal in a final rule
published on July 14, 2020 (85 FR 42582).
    On September 30, 2019, OSHA issued a final rule in which the agency
declined to revoke the ancillary provisions of the construction and
shipyards standards as proposed in the June 27, 2017 NPRM (84 FR
51377). Based on comments received and the record as a whole, the
agency determined that there is not complete overlap in protections
between the beryllium standards' ancillary provisions and existing
standards applicable to these sectors. Thus, revoking all of the
ancillary provisions and leaving only the PEL and STEL would be
inconsistent with OSHA's statutory mandate to protect workers from the
demonstrated significant risks of material impairment of health
resulting from exposure to beryllium and beryllium compounds. However,
after careful review, OSHA determined that some revisions to the
construction and shipyards standards were appropriate. To give the
agency time to finalize a new proposal with these more limited changes
to the construction and shipyards standards, the final rule delayed the
compliance dates for all ancillary provisions of these standards until
September 30, 2020. The final rule did not impact the PEL or STEL,
which OSHA has been enforcing since May 11, 2018.
    On October 8, 2019, OSHA published the proposal being finalized
here (84 FR 53902). In the NPRM, the agency proposed several revisions
to the ancillary provisions of the construction and shipyard standards
to more appropriately tailor the standards to these industries, to
align certain provisions with recent changes to the general industry
standard, and to clarify OSHA's intent with respect to materials
containing trace amounts of beryllium. The NPRM proposed revisions to
the paragraphs for definitions, methods of compliance, respiratory
protection, personal protective clothing and equipment, hygiene areas
and practices, housekeeping, medical surveillance, hazard
communication, and recordkeeping. In developing its proposal, OSHA
considered relevant comments received in response to the June 2017
construction and shipyards proposal, as well as general industry
stakeholder input that led to the 2018 general industry DFR. In
addition, OSHA proposed some revisions to align with changes proposed
in the December 12, 2018 general industry NPRM (83 FR 39351).
    OSHA consulted with the Advisory Committee on Construction Safety &
Health (ACCSH) regarding this proposal on September 9, 2019. ACCSH
recommended that OSHA proceed with the proposal to ``revise the
beryllium standard for construction to ensure that the ancillary
provisions are tailored to the construction industry and align with the
general industry standard, where appropriate,'' and unanimously
recommended that OSHA do so as soon as possible (see Document ID OSHA-
2018-0012-0125, Tr. 62-67).
    OSHA requested comments on the proposed changes and provided
stakeholders 30 days to submit comments. In addition, OSHA held a
public hearing on the proposal on December 3, 2019, where the agency
heard testimony from several stakeholders (see Document ID 2222; 2223).
Participants who filed notices of intention to appear at the hearing
were permitted to submit additional evidence and data relevant to the
proceeding for a 44-day period following the hearing. That period ended
on January 16, 2020. The record remained open for an additional 15
days, until January 31, 2020, for the submission of final briefs,
arguments, and summations. OSHA received twenty-five timely comments
during this rulemaking by the close of the last post hearing comment
period of January 31, 2020.
    OSHA estimates that these changes will lead to total annualized
cost savings of $2.5 million at a 3 percent discount rate over 10
years; at a discount rate of 7 percent over 10 years, the annualized
cost savings would be $2.6 million. OSHA has determined that these
changes will maintain safety and health protections for workers, while
facilitating compliance with the standards and yielding some cost
savings.
    This rule is not an Executive Order (E.O.) 13771 regulatory action
because this rule is not significant under E.O. 12866. 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. Pertinent Legal Authority

    The purpose of the Occupational Safety and Health Act of 1970
(``the OSH Act'' or ``the Act''), 29 U.S.C. 651 et seq., is to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources. 29
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary
of Labor to promulgate 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, 5 U.S.C. 551 et seq., 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. at 43.
    The Act provides that in promulgating health standards dealing with
toxic materials or harmful physical agents, such as the beryllium
standards, the Secretary must set the standard which most adequately
assures, to the extent feasible, on the basis of the best available
evidence, that no employee will suffer material impairment of health or
functional capacity even if such employee has regular exposure to the
hazard dealt with by such standard for the period of his working life.
29 U.S.C. 665(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 Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-
42 (1980) (plurality opinion) (``Benzene''). OSHA need not make
additional findings on risk for this proposal because OSHA previously
determined that the beryllium standards address a significant risk, see
82 FR 2545-52, and reaffirmed that finding in the rule finalizing the
2017 shipyards and construction proposal, the final rule published
September 30, 2019. See 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 v. Marshall, 647 F.2d 1189, 1248
(D.C. Cir. 1980) (``Lead I''). The Supreme Court has defined
feasibility as ``capable of being done.'' Am. Textile Mfrs. Inst. v.
Donovan, 452 U.S. 490, 509-10 (1981) (``Cotton Dust''). The courts have
further clarified that a standard is technologically feasible if OSHA
proves a reasonable possibility, ``within the limits of the best
available evidence, . . . that the typical firm will be able to develop
and install engineering and work practice controls that can meet the
[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 wide discretion to devise means to achieve the
Congressionally-mandated goal of ensuring worker safety and health. See
Lead I, 647 F.2d at 1230. Thus, where OSHA has chosen some measures to
address a significant risk over other measures, those 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
514 n.32. In Cotton Dust, the Court explained that Congress itself
defined the basic relationship between costs and benefits, by placing
the ``benefit'' of worker health above all other considerations save
those making attainment of this ``benefit'' unachievable. 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). Cotton Dust, 452 U.S. at 509. Thus, while OSHA
estimates the costs and benefits of its proposed and final rules,
partly in accordance with Executive Orders 12866 and 13771, these
calculations do not form the basis for the agency's regulatory
decisions.

III. Summary and Explanation of the Final Rule

    The following discussion summarizes and explains the changes OSHA
proposed to the beryllium standards for construction and shipyards,
discusses the comments received on the proposal, and explains OSHA's
determination with respect to each proposed change.
    The 2017 final rule promulgated three standards designed to protect
workers from the serious health effects caused by occupational exposure
to beryllium and beryllium compounds (see 82 FR 2470 (Jan. 9, 2017)).
Each of the three standards, which cover general industry (29 CFR
1910.1024), construction (29 CFR 1926.1124), and shipyards (29 CFR
1915.1024), contains a comprehensive set of protections, consisting of
the exposure limits in paragraph (c) and a number of ancillary
provisions, typical of OSHA health standards, in paragraphs (d) through
(n) (see 82 FR at 2476). The ancillary provisions encompass
requirements for exposure assessment, competent person (construction)
or regulated areas (shipyards), methods of compliance, respiratory
protection, personal protective clothing and equipment, hygiene,
housekeeping, medical surveillance and medical removal, communication
of hazards, and recordkeeping (29 CFR 1915.1024(d)-(n); 29 CFR
1926.1124(d)-(n)).
    Since the publication of the 2017 final rule, OSHA has sought to
revise the beryllium standards in a number of separate rulemakings.
Those bearing on this proposal include (1) the June 27, 2017,
construction and shipyards proposal (82 FR at 29182); (2) the May 7,
2018, general industry direct final rule (DFR) (83 FR at 19936); (3)
the December 11, 2018, general industry proposal (83 FR at 63746), (4)
the October 8, 2019, construction and shipyards proposal (84 FR at
53902); and (5) the (July 14, 2020) general industry final rule (85 FR
42582) (see Section I, Background, above for more details). In light of
the comments OSHA received on these rulemakings and the evidence in the
record, OSHA is revising several paragraphs of the beryllium standards
for construction and shipyards.
    OSHA has determined that, taken together, the limited exposures in
the construction and shipyards industries and the partial overlap
between the beryllium standards and other OSHA standards make revisions
to both the construction and shipyards beryllium standards appropriate.
The rationales for these revisions fall into three categories. First,
OSHA is removing or modifying some provisions which--although
appropriate in the general industry context--may be unnecessary or
require revision to appropriately protect employees in the construction
and shipyards industries. As will be explained further, operations with
beryllium exposure in the construction and shipyards industries are
significantly less varied and employees are exposed to materials with
significantly lower content beryllium than in the general industry
sector. In addition, employees in these industries receive the
protections of several other OSHA standards, as the agency explained in
the June 27, 2017, construction and shipyards proposal, in the final
rule published on September

30, 2019, and in the subsequent construction and shipyards proposal
published on October 8, 2019.
    Second, OSHA is revising some provisions of the construction and
shipyard standards to avoid inconsistencies with the clarifying changes
the agency has made in the (July 14, 2020) general industry final rule.
OSHA is aligning these standards to the extent possible because the
agency believes that, where there is no substantive difference among
industries with respect to a particular provision, applying similar
requirements across industries aids both compliance and enforcement.
Conversely, applying different requirements to identical situations may
lead to confusion. While most of the changes in the July 14, 2020,
final rule were designed specifically for general industry, OSHA is
aligning changes to paragraph (b), medical definitions; paragraph (k),
medical surveillance; and paragraph (n), recordkeeping, because the
rationale underlying these changes applies equally in the construction
and shipyards contexts.
    Third, OSHA is revising certain paragraphs of the construction and
shipyard standards to address the application of provisions related to
dermal contact to materials containing beryllium in trace quantities.
In the general industry DFR, OSHA clarified that provisions triggered
by dermal contact with beryllium or beryllium contamination would apply
only for dust, fumes, mists, or solutions containing beryllium in
concentrations greater than or equal to 0.1 percent by weight (83 FR at
19939). OSHA's rationale regarding this final set of proposed changes
dates back to the agency's August 7, 2015, beryllium NPRM (which led to
the 2017 final rule) (80 FR at 47565). There, OSHA proposed to exempt
materials containing less than 0.1 percent beryllium by weight on the
premise that workers exposed only to beryllium as a trace contaminant
are not exposed at levels of concern (80 FR at 47775). However, the
agency noted evidence of high airborne exposures in construction and
shipyard sectors, in particular during blasting operations and cleanup
of spent media (80 FR at 47733). Therefore, OSHA proposed for comment
several regulatory alternatives, including an alternative that would
expand the scope of the proposed standard to include all operations in
general industry where beryllium exists only as a trace contaminant (80
FR at 47730) and an alternative that would expand the scope to include
employers in the shipyard and maritime sectors (80 FR at 47777).
    In the 2017 final rule, after considering stakeholders' comments,
OSHA decided to apply the exemption for materials containing less than
0.1 percent beryllium by weight only where the employer has objective
data demonstrating that employee exposure to airborne beryllium will
remain below the action level of 0.1 [micro]g/m \3\, measured as an 8-
hour TWA, under any foreseeable conditions (82 FR at 2643). OSHA noted
that the action level exception ensured that workers with airborne
exposures of concern were covered by the standard. OSHA agreed with the
many commenters and public hearing testimony expressing concern that
hazardous exposures to beryllium can occur with materials containing
trace amounts of beryllium. While the agency acknowledged concerns
expressed by the Abrasive Blasting Manufacturing Alliance (ABMA) and
the Edison Electric Institute that processing materials with trace
amounts of beryllium may not necessarily produce significant exposures
to beryllium, evidence in the record showed significant exposures in
some operations using materials with trace amounts of beryllium. OSHA
explicitly identified abrasive blasting as one such operation. The
agency determined that preventing airborne exposures at or above the
action level, even to trace amounts of beryllium, reduces the risk of
beryllium-related health effects to workers (82 FR at 2643; see also 82
FR at 2552).
    While adopting this limited exemption for trace materials, OSHA
also adopted the regulatory alternative expanding the scope of the rule
to include both construction and shipyards, but recognized that these
sectors had limited operations that generated airborne beryllium
exposures of concern and issued separate standards for these sectors.
Nonetheless, OSHA applied similar ancillary requirements across the
general industry, construction, and shipyards beryllium standards. At
the same time, the agency acknowledged that different approaches may be
warranted for some provisions in construction and shipyards than for
general industry due to the nature of the materials and work processes
typically used in those industries (82 FR at 2690). Specifically,
exposures to beryllium in construction and shipyards are limited to
only a few operations, primarily abrasive blasting in construction and
shipyards and some welding operations in shipyards (see Document ID
2042, FEA Chapter III, pp. 103-11 and Table III-8e). While the high
airborne exposures during the blasting operation can expose workers to
beryllium in excess of the PEL, the blasting materials contain only
trace amounts of beryllium (materials such as coal slag normally
contain approximately 11 [micro]g/g or 0.0001 percent) (Document ID
2042, Chapter IV, Technological Feasibility, Table IV.69). Furthermore,
the rulemaking record contains evidence of beryllium exposure only
during limited welding operations in shipyards (only 4 of 127 sample
results showed detectable levels of airborne beryllium) (Document ID
2042, Chapter IV, Technological Feasibility, p. IV-580).
    As the regulatory history suggests, OSHA intended to protect
employees working with trace beryllium when those employees experience
significant airborne exposures. OSHA did not intend for provisions
aimed at protecting workers from the effects of dermal contact to apply
in the case of materials containing only trace amounts of beryllium in
the absence of significant airborne beryllium exposure. For this
reason, OSHA clarified in the general industry DFR that provisions
triggered by dermal contact with beryllium or beryllium contamination
would apply only for dust, fumes, mists, or solutions containing
beryllium in concentrations greater than or equal to 0.1 percent by
weight (83 FR at 19939). In construction and shipyards, where beryllium
exposure occurs almost exclusively from materials that contain
beryllium in concentrations less than or equal to 0.1 percent by
weight, OSHA proposed to remove provisions triggered by dermal contact
or beryllium contamination entirely, except for certain provisions the
agency deemed important to limit airborne exposure (through re-
entrainment of beryllium-containing dust from PPE or other surfaces) to
those workers who have significant airborne exposures (see, e.g., 84 FR
at 53913). Additionally, although limited welding operations in
shipyards may include base materials or fume containing more than 0.1
percent beryllium by weight, OSHA has reason to believe that skin or
surface contamination is not an exposure source of concern in these
operations (84 FR at 53906).
    Based on the foregoing, OSHA proposed and is now finalizing
revisions to the following paragraphs of the beryllium standards for
construction and shipyards: Paragraph (b), definitions; paragraph (f),
methods of compliance; paragraph (g), respiratory protection; 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. OSHA is finalizing the standards as proposed,
except for minor modifications to the following paragraphs: (1)
Paragraph (b), specifically, by amending the definition of CBD
diagnostic center and removing the definition of high efficiency
particulate air (HEPA) filter; (2) paragraph (f)(1), the written
exposure control plan; (3) paragraph (h), personal protective clothing
and equipment; and (4) paragraph (k), medical surveillance.
    OSHA notes that in response to the October 8, 2019 NPRM, several
industry commenters responded that OSHA's proposed changes to simplify
and better tailor the construction and shipyards standards would not go
far enough, and that none of the beryllium standards' ancillary
provisions are necessary (see, e.g., Document ID 2203, p. 1-2, 11;
2199, p. 3; 2205, p. 2; 2206, pp. 10-13; 2209, pp. 1-2; 2241, pp. 3-4).
For example, the Abrasive Blasting Manufacturing Alliance (ABMA)
claimed that ``[t]here is no evidence that the pre-existing standards
governing abrasive blasting are insufficient to protect employees, and
there is no evidence that exposure to the trace amounts of naturally
occurring beryllium in abrasive blasting (or welding) has resulted in
any material impairment of health to employees in all of the many years
this work has been performed'' (Document ID 2206, p. 11).
    Comments suggesting that OSHA entirely eliminate the ancillary
provisions of the construction and shipyards standards are beyond the
scope of this rulemaking and were already addressed in the September
30, 2019, final rule (84 FR 51377). OSHA did not propose in this
rulemaking to remove the standards' ancillary provisions in their
entirety, and in fact, explained in the NPRM that the September 2019
final rule established that removing the ancillary provisions in their
entirety would not sufficiently protect workers in these industries
from airborne exposure to beryllium (84 FR at 51390-97).
    After reviewing the comments and evidence in the record, OSHA
determined that beryllium construction and shipyards standards
consisting only of the TWA PEL and STEL would not be sufficiently
protective (84 FR at 51390-91). Other OSHA standards do contain some
requirements that overlap with, or duplicate, the requirements of the
beryllium standards for construction and shipyards. In particular, as
explained below in the Summary and Explanation for the removal of
paragraph (i), OSHA has determined that other OSHA standards overlap
with the previous hygiene requirements of the construction and
shipyards standards. However, for most ancillary provisions, there is
only partial overlap, and for the remainder, there is no overlap at
all. Thus, in the September 30, 2019 final rule, OSHA determined not to
adopt its proposal to remove all ancillary provisions from the
construction and beryllium standards (84 FR at 51390-91). In that final
rule, OSHA also reaffirmed its finding that beryllium exposure presents
a significant risk of material health impairment to workers in the
construction and shipyards sectors (84 FR at 51388-90). Commenters to
the October 8, 2019, proposal have provided no new information
indicating that protections are unnecessary in these sectors, and OSHA
finds that the ancillary provisions that it is retaining in this final
rule are necessary and appropriate to protect workers in the
construction and shipyards industries.
    The remainder of this summary and explanation provides detail on
the changes OSHA is finalizing to the beryllium standards for
construction and shipyards, including the agency's review of the
evidence in the record and the reasoning for its determinations.

Paragraph (b) Definitions

    Paragraph (b) of the beryllium standards for construction and
shipyards specifies the definitions of terms used in the beryllium
regulatory text. This final rule modifies several definitions of the
2017 standards: CBD diagnostic center, chronic beryllium disease (CBD),
and confirmed positive; adds a definition of beryllium sensitization;
and eliminates the definitions of emergency and high-efficiency
particulate air (HEPA) filter. The revised definitions include several
changes from previous paragraph (b) that OSHA proposed in the October
2019 NPRM, and all of the changes apply to both the construction and
shipyards standards. A discussion of each definition affected by OSHA's
proposed changes to paragraph (b), comments and testimony received on
the proposal, and the final version of each revised definition follows.
    OSHA proposed to modify the definitions of CBD diagnostic center,
chronic beryllium disease (CBD), and confirmed positive and add a
definition of beryllium sensitization to align these definitions in the
construction and shipyards standards with changes the agency had
already proposed to the beryllium standard for general industry. OSHA
proposed these modifications for the general industry standard in
December 2018 to clarify the meaning of the terms used in that standard
(83 FR at 63747). OSHA provided a sixty-day comment period for the
general industry proposal, which closed on February 11, 2019. OSHA's
rationale for including these definitions applies equally in the
construction and shipyards contexts. Therefore, as discussed in the
NPRM, in addition to the comments received during this rulemaking OSHA
has considered the comments that were submitted in response to the
proposed changes to definitions in the general industry standard along
with comments received during this rulemaking on the proposed
definitions in determining whether to finalize the proposed definitions
in the construction and shipyards standards. The comments to the
general industry proposal can be found in Docket OSHA-2018-0003 at
http://regulations.gov. In addition, OSHA proposed to remove references
to the term emergency throughout the construction and shipyards
standards, including the definition in paragraph (b).

Beryllium Sensitization

    This final rule defines the term beryllium sensitization as a
response in the immune system of a specific individual who has been
exposed to beryllium. The definition also states that there are no
associated physical or clinical symptoms and no illnesses 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. It further states that while not
every beryllium-sensitized person will develop 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).
    As also explained in the 2020 beryllium final rule for general
industry (85 FR 42582), this definition of beryllium sensitization is
identical to the definition proposed in the 2018 NPRM for general
industry and the 2019 NPRM for construction and shipyards, and is
consistent with information provided in the 2017 final beryllium rule
(82 FR at 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; Document ID 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 (82 FR at 2470).
    Several commenters expressed support for the proposed inclusion of
a definition of beryllium sensitization in OSHA's beryllium standards,
including National Jewish Health (NJH) (Document ID 2211, p. 3; 2243 p.
1; OSHA-2018-0003-0022, p. 2), the United Steelworkers (USW) (Document
ID 2222, Tr. 24-25; 2242, p. 2; OSHA-2018-0003-0033, p. 1), and
Materion Brush (Materion) (Document ID 2237, p. 4; OSHA-2018-0003-0038,
p. 8). For example, USW stated that the proposed definition of
sensitization 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 OSHA-2018-0003-0033, p. 1). The agency
also received supportive comments in response to the beryllium general
industry NPRM, which proposed an identical definition of beryllium
sensitization, from the U.S. Department of Defense (DOD) (OSHA-2018-
0003-0029, p. 1), and Edison Electric Institute (Document ID OSHA-2018-
0003-0031, p. 2).
    Some commenters expressed concerns regarding OSHA's proposed
definition of beryllium sensitization.\3\ First, NJH stated that OSHA's
definition is ``at odds with'' the definition of sensitization included
in the guidelines of the American Thoracic Society (ATS), which, in
2014, published a Statement on Beryllium (ATS Statement) that included
the following definition: ``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 2243, p. 2; OSHA-2018-0003-0027 p. 1; OSHA-2018-0003-0022, p. 2;
OSHA-2018-0003-0364, pp. 1, 44).\4\ The American College of
Occupational and Environmental Medicine (ACOEM) similarly stated that
the definition of beryllium sensitization ``has always been two
abnormal, one abnormal and one borderline, or three borderline LPT
results,'' which it characterized as consistent with the research
literature and with how the term ``beryllium sensitization'' is used in
clinical practice and medical surveillance. In contrast, it said,
OSHA's less precise proposed definition for beryllium sensitization
could-together with its use of the term ``confirmed positive'' (see
discussion below)-create confusion in clinical practice (Document ID
2213, p. 2). In response to OSHA's general industry NPRM, the National
Supplemental Screening Program (NSSP) and NJH also recommended that
OSHA's definition of beryllium sensitization should include text based
on the ATS Statement on Beryllium (Document IDs OSHA-2018-0003-0027, p.
1; OSHA-2018-0003-0022, p. 2).
---------------------------------------------------------------------------

    \3\ Comments from the U.S. House of Representatives Committee on
Education and Labor (CEL) stated that decoupling the term beryllium
sensitization from OSHA's definition of confirmed positive
(discussed later in this Summary and Explanation) would have
consequences for workers who leave employment already sensitized to
beryllium because their medical records would only state ``confirmed
positive,'' rather than ``beryllium sensitized'' (Document ID 2208,
pp. 4-5). OSHA addresses CEL's comments in the Summary and
Explanation of the definition of confirmed positive.
    \4\ NJH also stated that in order for a medical condition to be
covered under Worker's Compensation, it needs to meet the statutory
language requirements. NJH expressed concern that the statement that
there is ``no illness or disability with beryllium sensitization
alone'' in OSHA's proposed definition could preclude workers with
beryllium sensitization from obtaining Workers' Compensation
coverage and medical follow up in some states, including clinical
evaluation for CBD once they leave employment (Document ID 2243, pp.
2-3). At the hearing, NJH further explained that, in light of how
diagnoses of pleural plaque have affected the individuals' ability
to obtain benefits for lung cancer or mesothelioma, OSHA's
definition could adversely affect workers' ability to obtain
benefits for CBD in the future by prematurely triggering the statute
of limitations for such claims. (Document ID 2222, Tr. 39-41).
    OSHA intends for the definition of confirmed positive to serve
only as a trigger for certain provisions of the beryllium standard.
How OSHA defines this phrase for purposes of the beryllium standard
in no way limits healthcare professionals' ability or incentive to
diagnose beryllium sensitization.
---------------------------------------------------------------------------

    NJH proposed that OSHA should modify its definition of beryllium
sensitization to the following: ``Beryllium sensitization is the result
of a beryllium specific cell-mediated immune response 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, or one abnormal bronchoalveolar lavage
(BAL) BeLPT. Three borderline BeLPTs may also indicate sensitization''
(Document ID 2211, p. 3; 2243, p.2). NJH believes that its proposed
definition would be more consistent with ATS' definition and would not
preclude follow-up examinations of sensitized workers for CBD under
workers' compensation coverage.
    Materion disagreed with NJH's argument, stating that OSHA's
definition of beryllium sensitization and its complementary definition
of confirmed positive (discussed later) ``align well with the ATS
definitions,'' and also stated that the definitions in the beryllium
standards ``should exist to best serve the understanding of employers
and employees, not the medical community'' (Document ID 2237, p. 3).
    OSHA has considered the comments submitted by NJH, ACOEM, Materion,
and NSSP, and has concluded that the proposed definition of beryllium
sensitization, when properly read in the context of the standards and
in combination with the definition of confirmed positive, does not
contradict the definitions used by ATS or other organizations, and is
not likely to create confusion in clinical practice. The agency is
providing a definition of beryllium sensitization to give stakeholders,
such as employers and employees, a general understanding of what
beryllium sensitization is and its relationship to CBD.
    The definition of confirmed positive explains how the results of
BeLPT testing should be interpreted in the context of the standard's
provisions that benefit beryllium-exposed workers, specifically,
medical surveillance 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's recommended definition of
beryllium sensitization.
    In their comments on the general industry standard, NSSP objected
to the statement in the definition that no physical or clinical
symptoms, illness,

or disability are associated with beryllium sensitization alone, but
did not explain the reason for their concern (Document ID OSHA-2018-
0003-0027, 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 OSHA-2018-0003-0038, p. 5). USW also specifically
supported the accuracy of this section of OSHA's proposed definition of
beryllium sensitization (Document ID OSHA-2018-0003-0033, p. 1).
    As explained in the Summary and Explanation for paragraph (b) of
the July 14, 2020, final rule revising the general industry standard
(85 FR 42582), OSHA decided to retain the statement that there is no
illness or disability with beryllium sensitization 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 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.
    As discussed in greater detail in the beryllium final rule for
general industry (85 FR 42582), 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 OSHA-2018-
0003-0023, p. 1). However, other commenters, including NJH, NSSP, and
USW, supported including the statement that beryllium sensitization is
necessary for the development of CBD in OSHA's definition of beryllium
sensitization (Document ID OSHA-2018-0003-0022, p. 2; OSHA-2018-0003-
0027, p. 1; OSHA-2018-0003-0033, 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 essential 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 standard (82 FR at 2495-96).
    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. In the preamble to
the general industry final rule, OSHA provides additional discussion of
the provisions that allow for referral to a CBD diagnostic center and
diagnosis with CBD in the absence of a confirmed positive blood BeLPT
result (85 FR 42598).
    Thus, following consideration of the record of comments on OSHA's
proposed definition of beryllium sensitization (which includes the
comments and response detailed in the beryllium general industry final
rule, 85 FR 42596), OSHA is finalizing the definition as proposed in
the 2019 NPRM. The addition of this definition for beryllium
sensitization does not change employer obligations under paragraphs (k)
and (m) and therefore maintains employee protections under the
construction and shipyards standards for beryllium.

CBD Diagnostic Center

    This final rule defines a CBD diagnostic center to mean a medical
diagnostic center that has a pulmonologist or pulmonary specialist on
staff and on-site facilities to perform a clinical evaluation for the
presence of CBD. The revised definition also states that a CBD
diagnostic center must have the capacity to perform pulmonary function
testing (as outlined by the American Thoracic Society), bronchoalveolar
lavage (BAL), and transbronchial biopsy. In the revised definition, a
CBD diagnostic center must have the capacity to transfer the BAL
samples to a laboratory for appropriate diagnostic testing within 24
hours and the pulmonologist or pulmonary specialist must be able to
interpret the biopsy pathology and the BAL diagnostic test results.
This definition is identical to the definition of CBD diagnostic center
that OSHA proposed in the 2019 NPRM.
    The revised definition of CBD diagnostic center differs from the
former definition in a number of ways. First, whereas the 2017 final
rule's definition specified only that a CBD diagnostic center must have
a pulmonary specialist, OSHA is adding the term ``pulmonologist'' to
clarify that either type of specialist is qualified to perform a
clinical evaluation for the presence of CBD. Additionally, the 2017
definition required that a CBD diagnostic center have an on-site
pulmonary specialist. The revised definition states that the CBD
diagnostic center must simply have a pulmonologist or pulmonary
specialist on staff. This clarifies OSHA's intent that a pulmonary
specialist must be available to the CBD diagnostic center, but need not
necessarily be on site at all times.
    In their comments on the proposed changes to the definition of CBD
diagnostic center, NJH and ATS recommended that a pulmonologist,

occupational medicine specialist, or physician with expertise in
beryllium disease conduct the clinical evaluation for CBD, and that a
pulmonologist should be on staff or available to perform the
bronchoscopy (Document ID 2211, pp. 3-4; OSHA-2018-0003-0022, p. 2;
OSHA-2018-0003-0021, p. 2). According to NJH, clinics that regularly
evaluate patients for CBD have physicians with experience in
occupational medicine conduct the clinical evaluation for CBD, in
conjunction with a pulmonologist who performs a bronchoscopy (Document
ID 2211, pp. 3-4; OSHA-2018-0003-0022, pp. 2-3).
    OSHA notes that, although the agency is requiring facilities to
have a pulmonologist or pulmonary specialist on staff who is able to
interpret the biopsy pathology and the BAL diagnostic test results,
OSHA does not intend that all aspects of clinical evaluation for CBD
must be performed by a pulmonologist or pulmonary specialist. In the
preamble to the 2017 final rule, OSHA explained that the agency was
defining a CBD diagnostic center as a facility with a pulmonary
specialist ``on-site'' specifically to indicate that the specialist
need not personally perform the BeLPT testing (82 FR at 2645).
Moreover, paragraph (k)(7), which sets out the substantive requirements
for the evaluation at the CBD diagnostic center, refers to
recommendations of the ``examining physician,'' not necessarily the
pulmonologist or pulmonary specialist.
    Paragraph (b), in turn, defines physician or other licensed health
care professional (PLHCP) as an individual licensed to provide some or
all of the services required by paragraph (k). As such, some parts of
the evaluation, such as lung function tests, might be performed by a
certified medical professional other than a pulmonologist or pulmonary
specialist. The arrangement that NJH describes as typical for clinics
treating CBD patients, in that physicians with experience in
occupational health conduct the clinical evaluation for CBD in
conjunction with a pulmonologist who performs a bronchoscopy, is
consistent with OSHA's intent for the definition of CBD diagnostic
center and other provisions of the standard related to CBD diagnosis.
Therefore, OSHA has determined that it is not necessary to revise the
definition of CBD diagnostic center to require that the clinical
evaluation for CBD be conducted by a pulmonologist, occupational
medicine specialist, or physician with expertise in beryllium disease.
    An additional change to the definition of CBD diagnostic center
clarifies that the diagnostic center must have the capacity to perform
pulmonary function testing (according to ATS criteria), bronchoalveolar
lavage (BAL), and transbronchial biopsy. OSHA has determined that the
former definition--which stated that the evaluation at the diagnostic
center ``must include'' these tests--could have been misinterpreted to
mean that the examining physician was required to perform each of these
tests during every clinical evaluation at a CBD diagnostic center. The
agency is not dictating which tests an evaluation at a CBD diagnostic
center should include, but ensuring that CBD diagnostic centers have
the capacity to perform these tests, which are commonly needed to
diagnose CBD. Therefore, the agency is revising the definition to
clarify that the CBD diagnostic center must simply have the ability to
perform each of these tests when deemed appropriate. These changes
clarify the definition of CBD diagnostic center, and OSHA expects they
will maintain safety and health protections for workers.
    NJH expressed concern that the proposed definition does not specify
the tests to be performed at the CBD diagnostic center, but only that
the CBD diagnostic center have the capacity to conduct the tests
(Document ID 2222, Tr. 70-72). NJH commented that by specifying the
required capacities of a CBD diagnostic center, rather than the
contents of a CBD evaluation, OSHA's change to the definition may
indicate that the clinical evaluation for CBD need not include certain
aspects of a CBD evaluation. NJH, the Association of Occupational and
Environmental Clinics (AOEC), and ATS recommended that, at minimum,
examinations should include full pulmonary function testing (including
lung volumes, spirometry and diffusion capacity for carbon monoxide),
chest imaging, and cardiopulmonary exercise testing, and may also
include bronchoscopy in some cases (Document ID 2211, p. 4; OSHA-2018-
0003-0022, p. 3; OSHA-2018-0003-0028, p. 2; OSHA-2018-0003-0021, pp. 1-
2). NJH recommended that OSHA require ATS recommendations for
diagnostic evaluation, which the NJH stated include the BeLPT,
pulmonary function testing and chest imaging; and in some cases
bronchoscopy (Document ID 2211, p. 4; OSHA-2018-0003 0022, p. 3). In
their comments on the general industry NPRM, Materion supported OSHA's
intent to specify the required capacities of a CBD diagnostic center,
rather than the contents of a CBD evaluation, in the definition of CBD
diagnostic center (Document ID OSHA-2018-0003-0038, pp. 16-17).
    OSHA believes that the concerns expressed by NJH are already
covered by the standard, as discussed more thoroughly in the Summary
and Explanation for paragraph (k), Medical Surveillance, in this final
rule. First, paragraph (k)(3) sets the requirements for contents of an
examination. For the initial and periodic medical examinations, OSHA
already requires under (k)(3) that employees be offered: A physical
exam with emphasis on the respiratory system and skin rashes; pulmonary
function tests, performed in accordance with established guidelines by
ATS, including forced vital capacity (FVC) and forced expiratory volume
in one second (FEV1); a BeLPT or equivalent test; a low dose
computed tomography (LDCT) scan, if recommended by the PLHCP; and any
other test deemed appropriate by the PLHCP. OSHA believes this
information should be available to the CBD diagnostic center upon
request.
    Second, paragraph (k)(7)--which establishes the substantive
requirements for the evaluation at the CBD diagnostic center--also
provides the examining physician at the CBD diagnostic center
flexibility to determine which additional tests are appropriate. As
explained below in the Summary and Explanation of paragraph (k)(7),
OSHA is adding a provision (paragraph (k)(7)(ii)) to make clear that
the employer must offer any tests that the examining physician at the
CBD diagnostic center deems appropriate. The definition of CBD
diagnostic center in paragraph (b) does not alter this requirement. In
light of paragraph (k), the revised definition of CBD diagnostic center
cannot reasonably be read to limit the types of tests available to the
employee (see the summary and explanation for paragraph (k)(7) for a
full discussion of this topic). Thus, after considering these comments,
OSHA has decided to retain the proposed change to the definition of CBD
diagnostic center.

Chronic Beryllium Disease (CBD)

    OSHA is also amending the definition of chronic beryllium disease
(CBD). For the purposes of this standard, the agency is using the term
chronic beryllium disease or CBD to mean a chronic granulomatous lung
disease caused by inhalation of beryllium by an individual who is
beryllium sensitized.
    OSHA is finalizing the definition as proposed. It includes several
changes to the 2017 final rule's definition of

chronic beryllium disease, which was ``a chronic lung disease
associated with exposure to airborne beryllium'' (82 FR at 2645-46).
The revisions serve to differentiate CBD from other respiratory
diseases associated with beryllium exposure (e.g., lung cancer) and to
make clear that beryllium sensitization and the presence of beryllium
in the lung are essential in the development of CBD (see 82 FR at
2492).
    First, OSHA is adding the term ``granulomatous'' to the definition.
``Granulomatous'' is meant to indicate an infiltration of inflammatory
cells (e.g., T-cells) leading to the focal collection of cells, and
eventual creation of nodules in the lung (Ohshimo et al., 2017,
Document ID 2171, p. 2; Williams and Williams, Document ID 2228, pp.
727-30; ATS, Document ID 0364). The formation of the type of lung
granuloma specific to a beryllium immune response can only occur in
those with CBD (82 FR at 2492-502). Next, OSHA is removing the phrase
``associated with airborne exposure to beryllium'' and replacing it
with ``caused by inhalation of airborne beryllium.'' This change is
more consistent with the findings in the 2017 final rule that beryllium
is the causative agent for CBD and that CBD only occurs after
inhalation of beryllium (82 FR at 2513). Finally, OSHA is clarifying
that CBD is caused by inhalation of airborne beryllium ``by an
individual who is beryllium sensitized.'' Along with the revised
definition of beryllium sensitization discussed above, this revision
emphasizes to employers and employees the role that beryllium
sensitization plays in the development of CBD.
    NJH, USW, and Materion agreed that OSHA's definition of CBD should
be clarified (Document ID 2211, p. 4; 2222, Tr. 50-51; Document ID
OSHA-2018-0003-0038, p. 17; Document ID OSHA-2018-0003-0033, p. 5).
Materion supported the changes that OSHA proposed, which it
characterized as a necessary clarification to ensure the definition
provided is specific to chronic beryllium disease (Document ID 2237,
pp. 4-5; OSHA-2018-0003-0038, p. 17). USW similarly supported the
proposed definition, stating that it clarifies the previous definition
which ``could be read to apply to any chronic lung disease caused by
beryllium, including lung cancer'' (Document ID OSHA-2018-00003-0033,
p. 5). These comments reinforce OSHA's determination that adding the
term ``granulomatous'' to the definition will better distinguish CBD
from other occupationally associated chronic pulmonary diseases. As
OSHA explained in the preamble to the 2017 final rule, the formation of
the type of lung granuloma specific to a beryllium immune response can
only occur in those with CBD (82 FR at 2492-502).
    Several commenters expressed concern that the proposed definition
of chronic beryllium disease does not provide sufficient information to
guide the diagnosis of CBD, or that aspects of OSHA's proposed
definition of CBD could complicate the diagnosis of CBD. Comments
expressing such concern from NJH, ACOEM, ATS, DOSH, and NSSP are
discussed in detail below. OSHA notes that the standard's definition of
chronic beryllium disease is not intended to provide criteria for the
diagnosis of CBD. The agency's intent is to provide readers who may
have little or no familiarity with CBD with a general understanding of
the term, not to provide diagnostic criteria for healthcare
professionals. This is evident from the broadly written 2017 final rule
definition of chronic beryllium disease: ``a chronic lung disease
associated with exposure to airborne beryllium'' (82 FR at 2645-46).
    Due to differences in individual cases and circumstances, medical
specialists may need to apply somewhat different testing regimens and/
or diagnostic criteria to different individuals they evaluate for CBD.
Furthermore, the diagnostic tools and criteria available to medical
specialists may change over time. As discussed in the summary and
explanation for paragraph (k)(7), OSHA believes that the physician at
the CBD diagnostic center should have the latitude to use any tests he
or she deems appropriate for the purpose of diagnosing or otherwise
evaluating CBD in a patient, and has revised paragraph (k)(7) to make
this clear. Therefore, OSHA has determined that it is neither necessary
nor appropriate to specify diagnostic criteria in the beryllium
standard's definition of chronic beryllium disease. Instead, OSHA has
decided to retain a definition that provides the reader with a general
understanding of the term.
    NJH and ATS commented that OSHA should adopt a definition of
chronic beryllium disease based on the previously-mentioned 2014 ATS
document on diagnosis and management of beryllium sensitization and CBD
(Document ID 2211, p. 4; 2222, Tr. 50; OSHA-2018-0003-0021, p. 5). NJH
suggested the following definition: ``Chronic beryllium disease (CBD)
is a granulomatous inflammatory response in the lungs of an individual
who is beryllium sensitized'' (Document ID 2211, p. 4).\5\ In the
beryllium informal hearing, they appeared to object to the term
``granulomatous inflammation'' and to prefer the term ``granuloma
inflammatory process'' (Document ID 2222, Tr. 50). NJH stated that OSHA
should adopt a definition based on the ATS beryllium statement ``that
says, `Chronic beryllium disease is a granuloma inflammatory process,'
and note that this is different than granulomatous inflammation or
granulomas. . . chronic beryllium disease is a granulomatous
inflammatory process in the lungs of an individual who is beryllium
sensitized'' (Document ID 2222, Tr. 50). NJH further stated that their
proposed definition ``allows for some flexibility'' in diagnosing CBD
(Document ID 2222, Tr. 50). OSHA notes that the ATS statement primarily
discusses CBD as a granulomatous inflammatory response in the lungs
(Document ID 0364).
---------------------------------------------------------------------------

    \5\ In their comments on the general industry NPRM, NJH
previously suggested that the agency define chronic beryllium
disease as a disease ``characterized by evidence of granulomatous
lung inflammation in an individual who is sensitized to beryllium.''
According to NJH, this definition would allow for diagnosis based on
different combinations of clinical evaluation results as detailed in
the ATS Statement (Document ID OSHA-2018-0003-0022, p. 3). OSHA's
response to NJH's new suggested definition also pertains to this
previously suggested definition.
---------------------------------------------------------------------------

    As discussed above, OSHA has determined that it is neither
necessary nor appropriate to provide diagnostic criteria in the
beryllium standard's definition of chronic beryllium disease. Instead,
OSHA has decided to retain a definition that provides the reader with a
general understanding of the term. OSHA believes that the definition
the agency proposed--a chronic granulomatous lung disease caused by
inhalation of airborne beryllium by an individual who is beryllium-
sensitized--adequately conveys that CBD is granulomatous in nature, and
that it is not necessary for the agency's purposes to further specify
that it is an inflammatory process. OSHA has therefore decided not to
adopt the definition that NJH suggested.
    ACOEM objected to the inclusion of the term ``granulomatous'' in
the definition of chronic beryllium disease (Document ID 2213, p. 3).
ACOEM contended that CBD does not always include the presence of
granulomas and the lung pathology is more consistent with ``mononuclear
cell interstitial infiltrates.'' According to ACOEM, it is established
in the medical literature that the lung pathology found in CBD does not
always include granulomas; lung biopsies may not detect granulomas,
either due to practical limitations of the

test or because the patient's stage of disease is too early (i.e., the
cells of the immune system that form granulomas have accumulated in the
lungs, but have not yet formed into clusters) (Document ID 2213, p.3).
ACOEM expressed concern that, if OSHA's [a]ddition of the term
``granulomatous'' to the definition excludes cases where granulomas are
not present, it ``may result in some workers being unnecessarily
excluded from appropriate medical care under the OSHA rule, and may
affect their ability to receive workers' compensation, due to the
overly narrow definition'' (Document ID 2213 p. 3). ACOEM further noted
that the presence of beryllium sensitization ``lends specificity to the
diagnosis''; therefore, it is not necessary to use the term
``granulomatous'' for the sake of specificity in the definition.
    OSHA disagrees with ACOEM's contention that including the term
``granulomatous'' in the agency's definition of chronic beryllium
disease would be inaccurate or overly narrow, and could thereby prevent
workers from obtaining appropriate medical care or benefits for CBD. To
begin with, OSHA's definitions in paragraph (b) of the standard are
intended only to clarify the meaning of terms that appear in the
standard. The definition of chronic beryllium disease is written with
the goal of providing readers of the standard, who may have little or
no familiarity with CBD, with a general understanding of the term. The
definition does not provide diagnostic criteria for healthcare
professionals to follow when diagnosing and addressing CBD.
    Moreover, ACOEM's concerns are unfounded because including the term
``granulomatous'' does not exclude cases of CBD where granulomas have
not yet formed or are not detected by lung pathology. OSHA agrees with
ACOEM that CBD includes mononuclear cell infiltrates and can be
diagnosed in the absence of lung pathology findings of granulomas in
the lung. As described in the Health Effects section of the 2017 final
rule, CBD is a pathological continuum which results from lung exposure
to beryllium. The continuum consists of an asymptomatic early response
with the recruitment of inflammatory T-cells and other mononuclear
cells through to the formation of granulomas and frank, chronic disease
(82 FR at 2491-2502). However, the term ``granulomatous'' does not
refer only to the presence of granulomas; the term ``granulomatous''
inflammation is described in the literature as beginning with chronic
inflammation predominated by mononuclear phagocyte cells leading to the
eventual aggregation of these cells into focal lesions called
granulomas (ATS, Document ID 0364; Ohshimo et al., 2017, Document ID
2171, p. 2; Williams and Williams, 1983, Document ID 2198). OSHA finds
that adding the term ``granulomatous'' to the definition of CBD,
contrary to the concerns raised by ACOEM, does not imply that CBD
cannot be diagnosed where granulomas have not yet formed or are not
detected by lung pathology.
    ACOEM also noted that ``the presence of beryllium sensitization (as
measured in BeLPT using either blood or lung cells) lends specificity
to the diagnosis,'' which makes including the term ``granulomatous''
unnecessary (Document ID 2213, p. 3). OSHA disagrees. First, including
the term ``granulomatous'' is consistent with the ATS statement ``the
diagnosis of CBD is based on the demonstration of both BeS and
granulomatous inflammation on lung biopsy.'' (Document ID 0364, p. e35,
e43-e45, e55). Based on the ATS statement, NJH also recommended a
definition of chronic beryllium disease that included a reference to
``granulomatous inflammation'' (Document ID 2211, p. 4).
    Second, as noted in the summary and explanation section for the
2020 general industry beryllium final rule (85 FR 42598), OSHA
acknowledges that it may not always be possible to identify a worker
for beryllium sensitization using the BeLPT as part of a diagnosis of
CBD because the BeLPT can yield false-negative results in some
individuals (see Document ID 0399). This means some individuals may
actually be sensitized to beryllium even though they have a negative
BeLPT result; therefore, there is value to adding the term
``granulomatous'' to lend further specificity. An examining physician
should have the latitude to diagnose CBD even in the absence of a
``confirmed positive'' pattern of BeLPT results 85 FR 42598), for
example, in the presence of lung inflammation. The latitude and
flexibility provided under these standards affords physicians the
discretion to diagnose CBD in patients that may not have the classic
hallmarks of sensitization or CBD (e.g. positive BeLPT or granuloma),
but have a work history of exposure to beryllium and an undiagnosed
health issue. However, OSHA emphasizes that the definition of chronic
beryllium disease is to inform the general reader of this preamble and
final rule, and is not intended to guide physician diagnosis of CBD.
    In their comments on the 2018 general industry NPRM, ATS
recommended including diagnostic criteria in the definition, such as
confirmation of an immune response to beryllium and granulomatous lung
inflammation using lung biopsy, and that the definition emphasize the
various approaches which may be used ``[d]epending on the clinical
setting, feasibility of certain diagnostic tests, and degree of
diagnostic certainty needed'' (Document ID OSHA-2018-0003-0021, p. 5).
ATS also expressed concern that OSHA's proposed changes to the
definition of chronic beryllium disease could create confusion in the
diagnosis of CBD because, ``[w]hile beryllium sensitization is
essential to the development of CBD, demonstrating beryllium
sensitization, as well as granulomatous lung disease on lung pathology,
can be challenging in certain settings'' (Document ID 0021, p. 5). DOSH
stated that the proposed definition ``emphasizes beryllium
sensitization as a factor in chronic beryllium disease in a manner that
may be misleading'' and emphasized that individuals may be diagnosed
with CBD without a confirmed positive BeLPT result. DOSH advocated that
the definition of chronic beryllium disease ``ensure employers and
medical providers are given a clear expectation of how beryllium
conditions are properly identified'' (Document ID OSHA-2018-0003-0023,
p. 2).
    Although OSHA agrees with ATS and DOSH that diagnosing CBD does not
always require confirmation of beryllium sensitization, the agency does
not believe that references to sensitization should be excluded from
the definition of chronic beryllium disease. OSHA first notes that
neither DOSH nor ATS contend that OSHA's definition is inaccurate.
Furthermore, as OSHA explained previously in its discussion of the
beryllium sensitization definition, the agency believes that a correct
understanding of the relationship between beryllium sensitization and
CBD is key to workers' and employers' understanding of many provisions
of the beryllium standard. By stating the role that sensitization plays
in the development of CBD in the standard's definition of chronic
beryllium disease, OSHA intends to convey clearly to the regulated
community why protecting workers from becoming beryllium-sensitized is
key to the prevention of CBD and why workers who are confirmed positive
for beryllium sensitization should be offered both a clinical
evaluation for CBD and medical removal protection.
    OSHA acknowledges that it is not always necessary to identify a
worker as confirmed positive for beryllium sensitization using the
BeLPT as part of

a diagnosis of CBD and that the BeLPT can yield false-negative results
in some individuals. For this reason, an examining physician should
have the latitude to diagnose CBD even in the absence of a ``confirmed
positive'' pattern of BeLPT results. As explained in the summary and
explanation of paragraph (k)(7) of the beryllium final rule (2017),
that provision gives the examining physician this latitude (82 FR at
2704, 2709). Because the substantive provisions of the standard leave
the examining physician discretion in diagnosing CBD, OSHA does not
agree that acknowledging the role of beryllium sensitization in the
development of CBD will result in diagnostic confusion. As stated
above, the agency does not intend for the definition to be used for
diagnostic criteria, but rather to add clarity to the standard and
provide readers who may have little or no familiarity with CBD with a
general understanding of the term.
    NSSP recommended the following addition to OSHA's proposed
definition of chronic beryllium disease: ``The presence of interstitial
mononuclear cell (T cell) infiltrates (lymphocytosis) is characteristic
of chronic beryllium disease'' (Document ID 0027, pp. 3-4). NSSP argued
that the presence of these infiltrates on lung biopsy indicates the
presence of chronic beryllium disease, and should therefore be included
in the standard's definition (Document ID 0027, p. 4). OSHA disagrees.
The agency believes that the term ``granulomatous'' sufficiently
addresses the presence of T-cell infiltrates, which occur at an early
stage in the development of granulomas (82 FR at 2492-2502). As
discussed previously, OSHA's intent in defining chronic beryllium
disease is to provide the reader a general understanding of what CBD
is, rather than provide a technical definition for diagnostic use. The
suggested addition is not necessary to describe the nature of CBD in
general terms. With the addition of the term ``granulomatous,'' the
definition is sufficiently specific for OSHA's purposes in the context
of paragraph (b).
    In summary, for the purposes of this standard OSHA is defining
chronic beryllium disease as a chronic granulomatous lung disease
caused by inhalation of airborne beryllium by an individual who is
beryllium sensitized. This definition is identical to the definition of
chronic beryllium disease OSHA proposed in 2019 and includes only minor
changes from the definition included in the 2017 final standard. OSHA
is providing this definition to enhance stakeholders' general
understanding of the beryllium standard; it is neither intended nor
suitable to provide guidance to medical professionals on the diagnosis
of CBD. OSHA expects these changes to the 2017 definition of chronic
beryllium disease will clarify the standard, and will therefore
maintain safety and health protections for workers. After considering
these comments and after reviewing the record as a whole (which
includes the comments and responses detailed in the July 14, 2020,
general industry final rule (82 FR 42602)), OSHA has decided to amend
the definition of chronic beryllium disease (CBD) as proposed.

Confirmed Positive

    This final rule defines confirmed positive to mean (1) the person
tested has had two abnormal BeLPT test results, an abnormal and a
borderline test result, or three borderline test results, obtained
within a three-year period; or (2) the result of a more reliable and
accurate test indicating a person has been identified as having
beryllium sensitization. The revised definition includes several
changes to the 2017 definition of confirmed positive and one change
from the definition of confirmed positive that OSHA proposed in the
2019 NPRM.
    First, the agency is removing the phrase ``beryllium
sensitization'' from the first sentence of the definition, which
previously stated that a person is confirmed positive if that person
has beryllium sensitization, as indicated by two abnormal BeLPT test
results, an abnormal and a borderline test result, or three borderline
test results. OSHA intends that the term confirmed positive act only as
a trigger for requirements in the standards, such as continued medical
monitoring and surveillance for the purposes of these standards, and
not as a general-purpose definition of beryllium sensitization. By
removing the phrase ``beryllium sensitization'' from the first sentence
of the definition, the agency hopes to avoid confusion resulting from
scientific disagreements over whether certain test results, such as
three borderlines, necessarily prove that sensitization has occurred.
For purposes of the beryllium standards, any worker with the BeLPT test
results specified in the definition of confirmed positive should be
offered an evaluation for CBD with continued medical surveillance as
well as the option of medical removal protection, even though some
small percentage of workers who are confirmed positive by this
definition may not in fact be sensitized to beryllium, as is the case
for any diagnostic test (Middleton, et. al., 2008, Document ID 0480, p.
4).\6\
---------------------------------------------------------------------------

    \6\ In the preamble to the 2017 final rule, OSHA found that
three borderline BeLPT results recognize a change in a person's
immune system with respect to beryllium exposure based on Middleton
et al.'s 2011 finding that three borderline BeLPT results have a
positive predictive value (PPV) of over 90 percent (82 FR at 2501),
and therefore the agency included three borderline results in the
criteria for confirmed positive (82 FR at 2646). While Materion
contests the findings of the Middleton et al study (2011) regarding
three borderline BeLPTs, Materion was generally supportive of
removing sensitization from the definition, stating that the agency
``wisely splits[s] the definition of beryllium sensitization, which
is a medical determinant, from confirmed positive, which is a
testing regimen outcome'' (Document ID 2237, pp. 3-4).
---------------------------------------------------------------------------

    Both USW and Materion supported this proposed revision. USW
supported removing the phrase beryllium sensitization because,
``[w]hile it is true that a confirmed positive result of BeLPT testing
currently leads to a diagnosis of sensitization, linking the two in the
same definition could lead to unintended hardships for beryllium
workers'' (Document ID 2242, p. 3). At the December 3, 2019 public
hearing, USW also explained that a finding of beryllium sensitization
could, in some states, trigger a statute of limitations under laws
governing claims for compensation for other adverse health effects
(Document ID 2222, Tr. 24-25). According to USW, ``the word
`sensitized' is more likely to trigger a statute-of-repose deadline for
filing a tort suit than the words `confirmed positive,''' and should
that happen, ``the worker would not be able to receive adequate
compensation if they later developed chronic beryllium disease''
(Document ID 2242, p. 3). Materion commented that ``OSHA's separation
of beryllium sensitization from confirmed positive can increase the
number of employees eligible to accept further medical testing by
institutions such as NJH or to seek OSHA's medical removal option,'' as
well as the number of employees ``who may choose to be medically
monitored on a more routine basis at institutions such as NJH''
(Document ID 2237, p. 4).
    In its comments on the general industry NPRM, USW also commented
that the former definition of confirmed positive had acted ``as a de
facto definition of sensitization'' and that removing the phrase
``beryllium sensitization'' from this portion of the definition ensures
that a finding of confirmed positive will trigger medical surveillance
and medical removal protection, ``without an intermediate stop at a
finding of sensitization'' (Document ID OSHA-2018-0003-0033, p. 5).
Similarly, Materion commented in their response to the general industry

NPRM that the revised definition allows individuals with three
borderline BeLPT results to obtain the protections of the standard,
including evaluation for CBD and medical removal protection, without
necessarily being ``declared sensitized'' (Document ID OSHA-2018-0003-
0038, p. 18). Materion further asserted that the change enhances
employee protection by increasing the number of persons eligible to go
on to further testing (Document ID OSHA-2018-0003-0038, p. 19).
    Several commenters disagreed with OSHA's proposal to remove the
phrase ``beryllium sensitization'' from the definition of confirmed
positive. NSSP generally expressed disagreement with OSHA's proposal to
remove ``beryllium sensitization'' from the first part of the confirmed
positive definition, but did not state the reasons for its concern
(Document ID OSHA-2018-0003-0027, p. 3).
    Several commenters expressed concern that OSHA's proposed revision
would create confusion. NJH stated that removal of ``beryllium
sensitization'' would cause confusion as to what the term ``confirmed
positive'' refers, and stated that workers need to understand that, if
they are confirmed positive, they have a specific T-cell mediated
response to beryllium that can result in development of CBD (Document
ID 2222, Tr. 64; 2211, p. 5). ACOEM commented that ``[s]eparating the
definition of `confirmed positive' from the definition of beryllium
sensitization is confusing, unnecessary, and contradicts the accepted
terminology and definitions employed in the fields of immunology,
beryllium medical research, and clinical practice . . .'' ACOEM further
stated that, ``[i]n clinical practice, [the change] will add
significant confusion, to the detriment of workers and patients,''
because ``[t]he medical community is not accustomed to diagnosing a
patient's medical condition as `confirmed positive,' '' and instead
refers to patients as being ``beryllium sensitized'' based on ``the
presence of confirmed positive BeLPTs.'' \7\ (Document ID 2213, p. 2).
---------------------------------------------------------------------------

    \7\ ACOEM also stated that the proposed change would create
confusion by creating ``misalignment with existing legislation,
including the Energy Employee Occupational Illness Compensation
Program Act (1999) and the U.S. Department of Energy's beryllium
rule (Document ID 2213, p. 2). To the extent that ACOEM suggests
that OSHA is obliged to adopt definitions that match those used in
other statutes of federal regulations for the same or similar terms,
ACOEM is mistaken. OSHA has discretion to adopt appropriate
definitions for the terms in its beryllium standards, including the
definition of confirmed positive, which serves as a trigger for
certain provisions of the beryllium standards. As explained further
below, OSHA does not agree that the definition of confirmed positive
that it is adopting in this rule will result in confusion.
---------------------------------------------------------------------------

    ATS and AOEC also expressed concern that, because the medically-
accepted interpretation of BeLPT testing results is that they indicate
beryllium sensitization, removing the phrase ``beryllium
sensitization'' from the definition of confirmed positive may cause
confusion about the condition to which confirmed positive refers
(Document ID OSHA-2018-0003-0021, p. 3; OSHA-2018-0003-0028, p. 2). CEL
cited to, and expressed support for, ATS' and AOEC's comments regarding
this change, and also expressed concern that, after a worker leaves
employment, their medical record might only state that they were
``confirmed positive,'' rather than ``beryllium sensitized,'' which
could create confusion for medical personnel who may later evaluate or
treat the worker (Document ID 2208, p. 5).
    Commenters also expressed concern that removing ``beryllium
sensitization'' from the definition could negatively affect workers'
ability to obtain workplace protections and other benefits. NJH stated
that removing ``beryllium sensitized'' from the definition of confirmed
positive, in conjunction with OSHA's proposal to place a time
constraint on confirmation testing results in the definition (discussed
below), might reduce workers' ability to obtain medical testing and
workplace protections that are required by the rule (Document ID 2243,
p. 3). NJH also opposed the revised definition in their comments on the
2018 general industry NPRM, asserting that the removal of the phrase
``beryllium sensitized'' could prevent individuals who meet the
definition of being confirmed positive from being identified as
sensitized (Document ID OSHA-2018-0003-0022, p. 4). ATS also stated
(without explanation) that removing the term ``beryllium
sensitization'' from the definition of confirmed positive would reduce
worker protections (Document ID OSHA-2018-0003-0021, p. 3).
    Additionally, NJH, ATS, and CEL expressed concern that removing
``beryllium sensitization'' from the definition of confirmed positive
would adversely affect workers' ability to obtain workers compensation
benefits. NJH commented that the proposed change, in conjunction with
OSHA's proposal to place a time constraint on confirmation testing
results (discussed below), would prevent individuals from being
diagnosed with beryllium sensitization, which is medically compensable
under workers' compensation programs in many states (Document ID 2243,
p. 3). CEL cited to ATS's stated concern that removing the phrase
``beryllium sensitization'' would reduce workers' right to file for
worker's compensation (Document ID 2208, p. 5 (citing 0021, p. 3)).
    Commenters also expressed concern that the proposed revision of the
confirmed positive definition was inconsistent with other parts of the
standard. CEL and ACOEM claimed that the change would create an
inconsistency with the definition of Chronic Beryllium Disease (CBD),
which defines CBD as ``a chronic granulomatous lung disease caused by
inhalation of airborne beryllium by an individual who is beryllium-
sensitized'' (emphasis added) (Document ID 2208, p. 5; 2213, p. 2). CEL
also expressed concern that ``the definition of beryllium sensitized no
longer refers to the definition of `confirmed positive,' which defines
the criteria for being determined beryllium sensitized.'' Additionally,
CEL noted that, paragraph (k)(5)(i)(A) of the rule, which articulates
the necessary contents of the written medical report given to the
employee under the standard's medical surveillance requirements,
``equates `beryllium sensitization' with an employee's status as
`confirmed positive' which is consistent with the original 2017
standards, but not consistent with the decoupling of these terms in the
current proposal'' (Document ID 2208, p. 5).
    Following consideration of the concerns raised by these
organizations, OSHA disagrees that removing the phrase ``beryllium
sensitization'' from the first sentence of the definition of confirmed
positive will create confusion, reduce worker protections, or conflict
with other aspects of the regulatory text. The provisions of the
standards intended to benefit workers who may be sensitized
(specifically, evaluation at a CBD diagnostic center and medical
removal protection) are available to all workers who meet the
definition of confirmed positive. Therefore, removing the term
``beryllium sensitized'' from the first sentence of the definition will
not change the access to these benefits for any workers. By removing
the term ``beryllium sensitized'' from the first sentence of the
definition, OSHA seeks to ensure that workers with three borderline
BeLPT results (or other patterns of test results that some PLHCPs may
consider ambiguous) will receive the benefits of the standard
regardless of whether their PLHCP views their results as firm evidence
of

sensitization.\8\ Furthermore, OSHA disagrees that removing the
reference to ``beryllium sensitized'' will lead to confusion about what
the BeLPT results are supposed to indicate because the second sentence
of the definition of confirmed positive makes clear that a worker who
has been diagnosed with beryllium sensitization would also meet the
definition of confirmed positive: ``It [i.e., confirmed positive] also
means the result of a more reliable and accurate test indicating a
person has been identified as having beryllium sensitization.''
---------------------------------------------------------------------------

    \8\ OSHA is also unpersuaded by the comments expressing concern
that OSHA's revision of the definition of confirmed positive in the
beryllium standards would affect workers' ability to obtain workers
compensation benefits. ATS's comment did not explain how the
definition of confirmed positive in the beryllium standard could
affect worker's compensation claims, but at least one other
commenter questioned the ATS's assertion (see Document ID 0038, p.
19). NJH expressed concern that the change would prevent individuals
from being diagnosed with beryllium sensitization, which would
trigger their eligibility for benefits under some states' workers
compensation programs (Document ID 2243, p. 3). OSHA intends for the
definition of confirmed positive in paragraph (b) to serve only as a
trigger for certain provisions of the beryllium standards. How OSHA
defines this phrase for purposes of the beryllium standards in no
way limits healthcare professionals' ability or incentive to
diagnose beryllium sensitization.
---------------------------------------------------------------------------

    OSHA also disagrees with the commenters' concern that the proposed
definition will create inconsistencies within the standard. CEL's
concern that removing the term ``beryllium sensitized'' from the first
sentence of confirmed positive will create an inconsistency with
paragraph (k)(5)(i)(A) because that provision ``equates `beryllium
sensitization' with an employee's status as `confirmed positive' is
misplaced. Paragraph (k)(5)(i)(A), which is not being changed in this
final rule, requires that the licensed physician's written medical
report for the employee include any detected medical condition, such as
CBD or beryllium sensitization (i.e., the employee is confirmed
positive, as defined in paragraph (b) of the standard), that may place
the employee at increased risk from further airborne exposure. As
explained above, the purpose of the agency's definition of confirmed
positive is to establish the test results that trigger the benefits in
the standards aimed at protecting potentially beryllium-sensitized
individuals (specifically, an evaluation for CBD with continued medical
surveillance, and the option of medical removal protection). The
phrasing of the confirmed positive definition does not affect the
relevant detectable medical conditions that physicians are instructed
to include in their written reports under paragraph (k)(5)(i)(A). The
reference to confirmed positive in paragraph (k)(5)(i)(A) is intended
to signal that, where a physician has identified a worker as having
beryllium sensitization, that individual also satisfies the definition
of confirmed positive.
    Nor does removing the reference to ``beryllium sensitized'' from
the definition of confirmed positive create an inconsistency with the
standards' definitions of chronic beryllium disease or beryllium
sensitization. As discussed above, the definition of confirmed positive
explains the test results that, in the context of these beryllium
standards, triggers the benefits intended to protect individuals who
may be beryllium-sensitized. Such results include both employees who
are identified as having beryllium sensitization, and employees who
have three borderline BeLPT results (or other patterns of test results
that some PLHCPs may consider ambiguous) but may not be affirmatively
identified by the physician as beryllium-sensitized. The definitions of
beryllium sensitization and chronic beryllium disease (CBD) are
informational definitions that do not trigger any specific protections
in the standards, and are solely included to help readers generally
understand those terms. The definition of chronic beryllium disease
(CBD) clarifies that individuals that have CBD have beryllium
sensitization, and the definition of beryllium sensitization explains
that ``[w]hile not every beryllium-sensitized person will develop CBD,
beryllium sensitization is essential for development of CBD.'' OSHA
finds no conflict between these definitions and the definition of
confirmed positive.
    An additional change to the definition of confirmed positive
provides that the findings of two abnormal, one abnormal and one
borderline, or three borderline results need to occur from BeLPTs
conducted within a three-year period. This change in the definition of
confirmed positive differs from the proposal and is based on comments
submitted to the record following publication of the 2018 NPRM for
general industry and the 2019 NPRM for construction and shipyards.
    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. After publication of the 2017 final rule, stakeholders
suggested to OSHA that the definition of confirmed positive could be
interpreted as meaning that findings of two abnormal, one abnormal and
one borderline, or three borderline results over any time period, even
as long as 10 years, would result in the employee being confirmed
positive and automatically referred to a CBD diagnostic center for
evaluation. As discussed in the preamble to the 2017 standard, clinical
evaluation for CBD involves bronchoalveolar lavage and biopsy (82 FR at
2497) which, like all invasive medical procedures, carry risks of
infection and other complications.\9\ Given such risks, and the
possibility that some repeat abnormal or borderline results obtained
over a long period of time could be false positives, it was not the
agency's intent that workers with rarely recurring abnormal or
borderline BeLPT results should necessarily proceed to evaluation at a
CBD diagnostic center unless recommended to do so by their examining
physician. At the same time, OSHA notes that under paragraph
(k)(5)(iii), the licensed physician performing the BeLPT testing
retains the discretion to refer an employee to a CBD diagnostic center
if the licensed physician deems it appropriate, regardless of the BeLPT
result.
---------------------------------------------------------------------------

    \9\ Bronchoalveolar lavage is a method of ``washing'' the lungs
with fluid inserted via a flexible fiberoptic instrument known as a
bronchoscope, removing the fluid and analyzing the content for the
inclusion of immune cells reactive to beryllium exposure (82 FR at
2497).
---------------------------------------------------------------------------

    In the 2019 NPRM, OSHA proposed that any combination of test
results specified in the definition of confirmed positive must result
from the tests conducted in one cycle of testing, including the initial
BeLPT and the follow-up retesting offered within 30 days of an abnormal
or borderline result (paragraph (k)(3)(ii)(E)). As outlined in proposed
paragraph (k)(3)(ii)(E), an employee would be offered a follow-up BeLPT
within 30 days if the initial test result is anything other than
normal, unless the employee had been confirmed positive (e.g., if the
initial BeLPT was performed on a split sample and showed two abnormal
results). Thus, for example, if an employee's initial test result was
abnormal, and the result of the follow-up testing offered to confirm
the initial test result was abnormal or borderline, the employee would
be confirmed positive. Alternatively, if the result of the follow-up
testing offered to confirm the initial abnormal test result was normal,
the employee would not be confirmed positive. Any additional abnormal
or borderline results obtained from the next required BeLPT for that
employee (typically, two years later) would not identify that employee
as confirmed positive under the proposed modification to confirmed
positive.

OSHA requested comments on the appropriateness of this proposed time
period.
    Several stakeholders, including Materion, NJH, ACOEM, AFL-CIO, CEL,
and USW, submitted comments regarding OSHA's proposal to require that
the test results specified in the agency's definition of confirmed
positive must occur within a single testing cycle. OSHA also received
comments from Materion, NJH, ATS, DOSH, NSSP, USW, and AOEC on this
proposed revision in the 2018 NPRM for general industry.
    Commenters focused on several aspects of the proposed timing.
First, many of the comments focused on the logistics of OSHA's proposed
change. NJH, ACOEM, AFL-CIO, USW, ATS, DOSH, AOEC, and NSSP all
indicated that requiring results with a 30-day testing cycle could
create logistical challenges, for example due to repeat testing
requirements or for businesses in remote areas with access to limited
healthcare facilities (Document ID 2211, pp. 5-7; 2213, pp. 2-3; 2244,
pp. 17-18; OSHA-2018-0003-0033, p. 5; OSHA-2018-0003-0022, p. 4; OSHA-
2018-0003-0021, p. 4; OSHA-2018-0003-0024, p. 1; OSHA-2018-0003-0027,
p. 3). Materion agreed with these commenters that ``the 30 day initial
testing period may not allow enough time to complete retesting of
workers due to issues beyond the control of the employer or employee''
(Document ID 2237, p. 5).\10\
---------------------------------------------------------------------------

    \10\ In their comments on the 2018 general industry NPRM,
Materion supported the proposed definition of confirmed positive,
stating that a 30-day allowance for follow-up testing after a first
abnormal or borderline BeLPT result is appropriate to ensure that
testing is completed in a timely manner (Document ID OSHA-2018-0003-
0038, p. 17).
---------------------------------------------------------------------------

    In this final rule and preamble, OSHA clarifies that it did not
intend that the initial and follow-up tests had to be completed and
interpreted within 30 days. OSHA intended that the test results used to
determine if a worker is confirmed positive be obtained during one
cycle of testing (i.e., an initial or periodic examination), including
follow-up testing conducted within 30 days of an abnormal or borderline
result.
    Secondly, stakeholders commented on the appropriateness of limiting
the use of the BeLPT from one test cycle in determining if a worker is
confirmed positive. Commenters from public health organizations raised
concerns that limiting test results to one test cycle would affect the
ability to identify workers who should be referred for a CBD evaluation
and receive other protections under the standard. NJH stated that
OSHA's proposal to place a time constraint on confirmation testing
results would reduce workers' ability to obtain medical testing and
workplace protections that are required by the rule.\11\ NJH proposed
the following definition be used: ``Confirmed positive means the person
tested has beryllium sensitization as demonstrated by two abnormal
BeLPT test results, an abnormal and a borderline test result, three
borderline test results or the result of a more reliable and accurate
test for sensitization'' (Document ID 2243, p. 3).
---------------------------------------------------------------------------

    \11\ As discussed above, NJH expressed concern that OSHA's
proposed definition of confirmed positive could prevent individuals
from being diagnosed with beryllium sensitization, and thereby
prevent them from receiving workers' compensation benefits (Document
ID 2243, p. 3). OSHA intends the definition of confirmed positive to
serve only as a trigger for certain provisions of the beryllium
standards. How OSHA defines this phrase for purposes of the
beryllium standards in no way limits healthcare professionals'
ability or incentive to diagnose beryllium sensitization.
---------------------------------------------------------------------------

    Other public health organizations, including ACOEM, DOSH, ATS,
NSSP, AOEC, and CEL, agreed with NJH that workers who are sensitized to
beryllium may show varying test results over time, and restricting the
time period for determining ``confirmed positive'' status to 30 days
would cause sensitized individuals to go undetected (Document ID 2213,
pp. 2-3; 2208, pp. 3-4; OSHA-2018-0003-0023, p. 2; OSHA-2018-0003-0021,
p. 2; OSHA-2018-0003-0027, p. 3; OSHA-2018-0003-0028, p. 2). ACOEM
commented that the 30-day cycle would exclude workers who might have
confirmatory tests several years after the initial first positive
result, and stated that there is potential for confirmatory results
could take up to 10 years to occur. ACOEM also stated that ``[t]here is
no justification or need for a restrictive time limit for the
occurrence of confirmatory tests,'' but if OSHA determined that a time
limit was needed as a practical matter, ACOEM stated that at least
three years should be permitted for repeat testing to identify
confirmed positive results (Document ID 2213, p. 2).
    ATS and AOEC recommended that results from tests performed up to at
least three years after the initial abnormal or borderline test result
should be used to determine whether the person is confirmed positive
for beryllium sensitization (Document ID OSHA-2018-0003-0021, p. 2;
OSHA-2018-0003-0028, p. 2). ATS stated that a timeframe of at least
three years, which encompasses two rounds of regularly scheduled
testing required biennially by the beryllium standard, would adequately
address its concerns regarding logistical feasibility, would improve
diagnostic accuracy, and would help ensure that sensitized workers are
identified (Document ID OSHA-2018-0003-0021, p. 4). The ATS Statement
on beryllium sensitization recommends a three-year testing cycle to
confirm beryllium sensitization (Document ID 0364, p. e35). AOEC agreed
that consideration of BeLPT test results obtained during a time period
of at least three years ``will increase the potential that workers are
accurately diagnosed with beryllium sensitization [and] will receive
the necessary care'' (Document ID OSHA-2018-0003-0028 p. 2). NABTU
noted that the Department of Energy's (DOE) Building Trades Screening
Program also uses a three year testing cycle to confirm workers
positive for sensitization (Document ID 2236, p. 2). CEL also commented
that ``OSHA should significantly lengthen the period allowed between
initial and confirmatory testing and develop a testing protocol that is
both practicable and based on science'' (Document ID 2208, p. 4).
    The approaches recommended by the ATS and the AOEC are similar to
the approach used by NJH in providing medical surveillance consultation
to workforces that use beryllium. NJH stated that, if an individual's
BeLPT results are abnormal and normal on their initial round of BeLPT
testing, they will usually request another BeLPT within a month. If the
result of that test is normal, they do not request further testing
until the next regularly scheduled BeLPT. If the result of the next
regularly scheduled BeLPT comes back abnormal, they refer the worker
for clinical evaluation even though the tests are separated by the two-
year testing cycle (Document ID OSHA-2018-0003-0022, p. 5).
    NJH submitted new, unpublished evidence to the record supporting
the appropriateness of extending the test period to at least three
years (Document ID 2243, p. 5). NJH's unpublished data was collected
from patients that were ultimately diagnosed with CBD by either NJH or
Oak Ridge Associated Universities (ORAU). The data (as reported in
Tables 1 and 2 below) shows the timeframe from the initial abnormal
BeLPT to the second abnormal BeLPT that is required to trigger a
clinical evaluation for CBD (Document ID 2243, p. 5).

                 Table 1--NJH Days To Confirmed Positive
------------------------------------------------------------------------
                                              Number          Percent
             Number of days                  confirmed       confirmed
------------------------------------------------------------------------
30......................................              44              23
60......................................              93              48
90......................................             122              63
120.....................................             136              70
150.....................................             144              74
180.....................................             155              80
1 year..................................             169              87
2 years.................................             181              93
3 years.................................             186              96
> 3 years...............................             194             100
------------------------------------------------------------------------

                Table 2--ORAU Days To Confirmed Positive
------------------------------------------------------------------------
                                              Number          Percent
             Number of days                  confirmed       confirmed
------------------------------------------------------------------------
30......................................              42              17
60......................................             107              44
90......................................             126              52
120.....................................             139              58
150.....................................             147              61
180.....................................             148              61
1 year..................................             182              76
2 years.................................             201              83
3 years.................................             206              85
> 3 years...............................             241             100
------------------------------------------------------------------------
Tables 1 & 2 adapted from Document ID 2243, p. 5.

    As indicated by the evidence in Tables 1 and 2, many workers who
develop CBD have abnormal or borderline results that do not immediately
repeat upon retesting. To the contrary, many CBD patients have a series
of tests which alternate between normal and abnormal. BeLPT data from
Table 1, based on NJH's extensive experience, show that the BeLPT does
not yield consistently abnormal results among CBD patients. Of 194
patients diagnosed with CBD at NJH, the length of time between abnormal
results ranged from 14 days to 5.8 years, with a 95th percentile of 2.9
years. In this group, 150 patients (or 77 percent) would not have been
evaluated for CBD if two abnormal BeLPT results were required to occur
within a 30-day testing cycle (Document ID 2243, p. 5; OSHA-2018-0003-
0022, p. 5). Similar findings are shown in Table 2 (BeLPT data from
ORAU, also submitted by NJH (Document ID 2238, p. 5)). Data from Table
2 indicates that 83 percent (199 patients) of individuals who went on
to develop CBD would not have been evaluated for CBD if two abnormal
BeLPT results were required to occur within a 30-day testing cycle
(Document ID 2243, p. 5).
    Although the information NJH submitted to the record is
unpublished, their findings are consistent with published studies.
Kreiss et al. (1997) reported that nine individuals had initial
abnormal BeLPT results followed by two normal tests; six of those
individuals were re-tested approximately one year later and four were
confirmed positive for beryllium sensitization based on abnormal BeLPT
results (Document ID 1360, pp. 610-12). These findings suggest a high
rate of false-negative results and are consistent with results reported
in a study by Stange et al. (2004). That study found an average false-
positive rate of 1.09 percent, and a false-negative rate of 27.7
percent for the BeLPT (Document ID 1402, p. 459).
    Stakeholders provided similar comments, in response to OSHA's
proposed definition of confirmed positive in the 2018 general industry
NPRM, which was identical to the revised definition of confirmed
positive proposed in the 2019 NPRM for construction and shipyards. For
example, NSSP cited ORAU data (the same data submitted by NJH and shown
in Table 2) from healthcare providers to demonstrate that a 30-day
testing cycle is insufficient to properly identify sensitized workers.
NSSP noted that, in over 20 years of conducting BeLPTs in worker
populations, ORAU observed approximate median times of 45 days (range
of 3 days to 16 years) between first and second abnormal tests, 1.5
years (range of 30 days to 11 years) for the abnormal/borderline test
combination and 1 year (range of 30 days to 11 years) for three
borderlines (Document ID OSHA-2018-0003-0027, p. 3). Under the proposed
30-day requirement, the NSSP stated that the majority of workers who
have been identified as sensitized in the past would not meet the
proposed definition of confirmed positive (Document ID OSHA-2018-0003-
0027, p. 3).
    Following consideration of the comments and of the new evidence
submitted to the record following the proposal, OSHA is convinced that
some workers who are ultimately found to be sensitized to beryllium or
diagnosed with CBD may have alternating abnormal and normal BeLPT
results, and that the time period for abnormal or borderline results to
repeat can be months or years. OSHA is also convinced that requiring
two abnormal, an abnormal and borderline, or three borderline results
to occur in one cycle of an initial or periodic exam before an employee
can be confirmed positive could result in beryllium sensitization or
CBD going undetected in many employees. This is demonstrated by the
unpublished data submitted by NJH showing that a substantial percentage
of individuals with CBD (77 percent) may not have been referred for
further testing based on results obtained within a 30-day cycle of
testing and is confirmed by the data from ORAU that NSSP presented in
response to the 2018 general industry NPRM (85 FR42605). Therefore,
OSHA finds that its proposed change would have the unintended and
unacceptable consequence of reducing employee protections because some
employees who are sensitized or have CBD would be deprived of the
benefits available through the standard, such as a timely evaluation at
a CBD diagnostic center. In addition, requiring that results be
obtained in one test cycle is not consistent with the approaches
currently applied or supported by the medical community.
    For these reasons, OSHA is revising 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 agrees with the ATS
and the AOEC that a three-year period will facilitate the
identification of sensitized workers enrolled in medical surveillance
(see Document ID OSHA-2018-0003-0022, p. 5; OSHA-2018-0003-0028, p. 2;
Document ID 0364, p. e35). In addition, this approach is consistent
with the practices and recommendations from the public health
community, including NJH and DOE, which provides beryllium-related
medical surveillance consultation. OSHA believes that allowing a worker
to be confirmed positive based on BeLPT results obtained over a three-
year time period strikes a reasonable balance that would allow a timely
evaluation for CBD, while at the same time, maintaining OSHA's original
intent that a confirmed positive finding not be based on results
obtained over an indefinite time period.
    OSHA emphasizes that this revision does not modify the requirements
of paragraph (k)(3)(ii)(E). Under that paragraph, if the results of the
BeLPT are other than normal, a follow-up BeLPT must be offered within
30 days of receiving the results, unless the employee has been
confirmed positive. Only other than normal BeLPT results must be
followed up within 30 days of the same test cycle (i.e., an initial or
periodic medical examination).
    As an example, an employee who receives a borderline result during
one periodic examination conducted in 2020 would be retested within 30
days, and if the follow-up test is normal, testing would stop. That
employee would be offered another BeLPT at the next

periodic examination conducted in 2022. However, if the result of the
2022 test is borderline, the employee would be retested within 30 days
of that test result receipt, and if the follow-up test is borderline,
the employee would be confirmed positive because of receiving three
borderline tests within three years. A three-year period for the
employee to be confirmed positive would ensure sufficient time for such
follow-up tests that may need to be conducted over two cycles of
medical examinations.
    In their comments on the 2018 NPRM for general industry, the U.S.
Department of Defense (DOD) recommended changing the term ``confirmed
positive'' to another term such as ``confirmed non-negative,''
``confirmed finding of concern,'' or ``pattern of concern.'' According
to the DOD, the term ``confirmed positive'' typically ``implies an
initial positive test that was repeated with another test or another,
more sensitive test, which confirms the initial positive test result''
(Document ID OSHA-2018-0003-0029, p. 2). As OSHA explained in the
general industry final rule Summary and Explanation (85 FR 42606),
however, the CBD literature, commonly treats individuals as confirmed
positive for sensitization through sequentially conducted BeLPTs (see,
for example, the ATS Statement on Diagnosis and Management of Beryllium
Sensitivity and Chronic Beryllium Disease, ATS 2014, Document ID 0364,
p. e41; see also Document ID 1543, 0603, 0398, 1403, 1449).
Additionally, OSHA again emphasizes that terms defined in the beryllium
standards are defined only for purposes of the standard and are not
intended as diagnostic, scientific, or all-purpose definitions. OSHA
believes that its definition of confirmed positive clearly indicates
what that term means for purposes of the beryllium standards and
therefore disagrees with DOD's concern that the term may cause
confusion. Accordingly, OSHA is retaining the term ``confirmed
positive'' in this final standard.

Emergency

    Finally, OSHA proposed to remove references to the term emergency
throughout the construction and shipyards standards, including the
definition in paragraph (b). The agency explained that, unlike in
general industry, the construction and shipyards industries--where
exposure to beryllium is almost exclusively limited to trace quantities
from abrasive blasting and welding operations--do not have emergencies
in which exposures to beryllium will differ from the normal conditions
of work. Specifically, OSHA reasoned that an uncontrolled release of
airborne beryllium in these industries (such as a release resulting
from a failure of the blasting control equipment, a spill of the
abrasive blasting media, or failure of the ventilation system for
welding operations) would occur only during the performance of routine
tasks already associated with the airborne release of beryllium; that
is, during abrasive blasting or welding processes. The agency explained
that it anticipates employees working in the immediate vicinity of an
uncontrolled release of airborne beryllium in these contexts would
already be protected from exposure by the standards' existing
requirements for respiratory protection (paragraph (g)), medical
surveillance (paragraph (k)), and hazard communication (paragraph (m))
due to their existing exposure to airborne beryllium (84 FR at 53909;
see also id. at 53912, 53918-20).
    Accordingly, OSHA preliminarily determined that no requirements
should be triggered for emergencies in construction and shipyards and
proposed to remove references to emergencies in provisions related to
respiratory protection (paragraph (g)), medical surveillance (paragraph
(k)), and hazard communication (paragraph (m)). The agency also
preliminarily determined that without these provisions it would be
unnecessary to define the term emergency in paragraph (b) (84 FR
53909).
    Some commenters objected to the proposed removal of provisions
relating to emergencies. Specifically, these commenters took issue with
OSHA's determination that an uncontrolled release of beryllium in the
construction and shipyards industries would not create exposures that
differ from normal operations. For a full discussion of these comments
and the agency's response, see the summary and explanation for
paragraph (g). In short, the agency is not persuaded that the types of
uncontrolled releases that necessitated emergency provisions in the
general industry standard are present in the construction and shipyards
industries. Accordingly, OSHA is finalizing its proposal to remove all
references to ``emergency'' or ``emergencies'' throughout the
construction and shipyards standards. Because those terms no longer
appear in the standards' requirements, OSHA is also finalizing its
proposal to remove the definition of the term ``emergency'' from
paragraph (b).
    This final rule makes one additional revision to paragraph (b) in
both standards. As explained in the Summary and Explanation for
paragraph (j), OSHA is removing the reference to HEPA-filtered
vacuuming in the housekeeping requirements of revised paragraphs (j)(1)
and (2). In the NPRM, OSHA neglected to remove the definition for high-
efficiency particulate air (HEPA) filter in paragraph (b), despite the
fact that there are no longer any provisions in either standard that
reference HEPA-filters. OSHA has removed this definition in this final
rule. This change has no substantive effect on any requirements in the
standards and OSHA considers this a technical correction.

Paragraph (f) Methods of Compliance

    Paragraph (f) of the beryllium standards for construction and
shipyards requires employers to implement methods for reducing employee
exposure to beryllium through a detailed written exposure control plan,
engineering and work practice controls, and a prohibition on rotating
employees to achieve compliance with the PEL. In the 2017 final rule,
OSHA determined that written plans would ``be instrumental in ensuring
that employers comprehensively and consistently protect their
employees'' (82 FR at 2668). OSHA also concluded that requiring
reliance on engineering and work practice controls, rather than on
respirator use, is consistent with good industrial hygiene practice and
with OSHA's traditional approach to health standards (82 FR at 2672).
    While extending these provisions to the construction and shipyards
industry in the 2017 final rule, OSHA acknowledged that exposures to
beryllium in these industries are limited primarily to a few
operations, abrasive blasting in construction and shipyards and some
welding operations in shipyards (82 FR at 2637-38). With respect to
abrasive blasting, while the extremely high exposures to airborne
particulate during the blasting operation can expose workers to
beryllium in excess of the PEL, the blasting materials contain only
trace amounts of beryllium (materials such as coal slag normally
contain approximately 0.11 [micro]g/g or 0.00001%) (see 2017 FEA,
Document ID 2042, p. IV-632, Table IV.69; 82 FR at 2638). Moreover,
OSHA had evidence of beryllium exposure during only limited welding
operations in shipyards (only 4 of 127 sample results showed detectable
levels of airborne beryllium) (see 2017 FEA, Document ID 2042, p. IV-
580). Nonetheless, OSHA applied the same requirements to these
industries as to general industry, where the operations with beryllium
exposure are significantly more varied and employees

are exposed to materials with significantly higher beryllium content.
    In the 2019 NPRM, OSHA proposed to revise the requirements in
paragraph (f) in light of the very narrow set of affected operations
and the limited extent of beryllium exposure in the construction and
shipyards industries. OSHA explained that some provisions in paragraph
(f)--although appropriate in the general industry context--may be
unnecessary to protect employees in the construction and shipyards
industries (84 FR at 53909-10). Likewise, OSHA preliminarily determined
that provisions relating solely to dermal contact with beryllium should
not apply in the construction and shipyards industries, where exposures
primarily involve materials containing only trace amounts of beryllium
(84 FR at 53909) or, in the case of welding, where OSHA believes the
process and materials do not present a dermal contact risk (see 84 FR
at 53906). Accordingly, OSHA proposed several revisions to both
paragraph (f)(1) (Written exposure control plan) and (2) (Engineering
and work practice controls) in the construction and shipyards
standards.
    For both the construction and shipyards beryllium standards,
paragraph (f)(1) in this final rule requires the employer to establish,
implement, and maintain a written exposure control plan that includes:
a list of operations and job titles reasonably expected to involve
exposure to beryllium; a list of engineering controls, work practices,
and respiratory protection required by paragraph (f)(2); and a list of
personal protective clothing and equipment required by paragraph (h)
(see paragraphs (f)(1)(i)(A), (B) and (C), respectively). For the
construction standard, the written plan must also include procedures to
restrict access to work areas where exposures to beryllium could
reasonably be expected to exceed the TWA PEL or STEL (paragraph
(f)(1)(i)(D)). Both the construction (paragraph (f)(1)(i)(E)) and
shipyards (paragraph (f)(1)(i)(D)) standards require the employer to