[Federal Register Volume 82, Number 122 (Tuesday, June 27, 2017)]
[Proposed Rules]
[Pages 29182-29224]
[FR Doc No: 2017-12871]

Vol. 82

Tuesday,

No. 122

June 27, 2017

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; Proposed Rule

Federal Register / Vol. 82 , No. 122 / Tuesday, June 27, 2017 /
Proposed Rules

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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-AB76

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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The Occupational Safety and Health Administration (OSHA)
proposes to revoke the ancillary provisions for the construction and
the shipyard sectors that OSHA adopted on January 9, 2017 but retain
the new lower permissible exposure limit (PEL) of 0.2 [mu]g/m\3\ and
the short term exposure limit (STEL) of 2.0 [mu]g/m\3\ for each sector.
OSHA will not enforce the January 9, 2017 shipyard and construction
standards without further notice while this new rulemaking is underway.
This proposal does not affect the general industry beryllium standard
published on January 9, 2017.

DATES: Written comments. Written comments, including comments on the
information collection determination described in Section VII of the
preamble (OMB Review under the Paperwork Reduction Act of 1995), must
be submitted (postmarked, sent, or received) by August 28, 2017.
    Informal public hearings. The Agency will schedule an informal
public hearing on the proposed rule if requested during the comment
period. The location and date of the hearing, procedures for interested
parties to notify the Agency of their intention to participate, and
procedures for participants to submit their testimony and documentary
evidence will be announced in the Federal Register if a hearing is
requested.

ADDRESSES: Written comments. You may submit comments, identified by
Docket No. OSHA-H005C-2006-0870, by any of the following methods:
    Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, which is the Federal e-
Rulemaking Portal. Follow the instructions on-line for making
electronic submissions. When uploading multiple attachments into
Regulations.gov, please number all of your attachments because
www.Regulations.gov will not automatically number the attachments. This
will be very useful in identifying all attachments in the beryllium
rule. For example, Attachment 1_title of your document, Attachment 2_
title of your document, Attachment 3_title of your document, etc.
Specific instructions for uploading documents are found in the
Frequently Asked Questions portion and the commenter check list on
Regulations.gov.
    Fax: If your submissions, including attachments, are not longer
than 10 pages, you may fax them to the OSHA Docket Office at (202) 693-
1648.
    Mail, hand delivery, express mail, messenger, or courier service:
You may submit your comments to the OSHA Docket Office, Docket No.
OSHA-H005C-2006-0870, Room N-3653, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210, telephone<PHONE_NUMBER>
(OSHA's TTY number is<PHONE_NUMBER>). OSHA's Docket Office accepts
deliveries (hand deliveries, express mail, and messenger/courier
service) from 10 a.m. to 3 p.m. e.t., weekdays.
    Instructions: All submissions must include the Agency name and the
docket number for this rulemaking (Docket No. OSHA-H005C-2006-0870).
All comments, including any personal information you provide, are
placed in the public docket without change and may be made available
online at http://www.regulations.gov. Therefore, OSHA cautions you
about submitting personal information such as Social Security numbers
and birthdates.
    Docket: To read or download comments and materials submitted in
response to this Federal Register notice, go to Docket No. OSHA-H005C-
2006-0870 at http://www.regulations.gov, or to the OSHA Docket Office
at the address above. All comments and submissions are listed in the
http://www.regulations.gov index; however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through that Web site. All comments and submissions are available for
inspection at the OSHA Docket Office.
    Electronic copies of this Federal Register document are available
at http://www.regulations.gov. Copies also are available from the OSHA
Office of Publications, Room N-3101, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1888. This document, as well as news releases and other relevant
information, is also available at OSHA's Web site at http://www.osha.gov.

FOR FURTHER INFORMATION CONTACT: For general information and press
inquiries, contact Frank Meilinger, Director, Office of Communications,
Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue
NW., Washington, DC 20210; telephone:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>For technical inquiries, contact: William
Perry or Maureen Ruskin, Directorate of Standards and Guidance, Room N-
3718, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW.,
Washington, DC 20210; telephone<PHONE_NUMBER> or fax<PHONE_NUMBER>;
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The preamble to this proposed rule on
occupational exposure to beryllium and beryllium compounds follows this
outline:

I. Executive Summary and Regulatory Issues
II. Pertinent Legal Authority
III. Events Leading to the Proposal
IV. Technological Feasibility Summary
V. Preliminary Economic Analysis
VI. Economic Feasibility and Regulatory Flexibility Certification
VII. OMB Review Under the Paperwork Reduction Act of 1995
VIII. Federalism
IX. State-Plan States
X. Unfunded Mandates Reform Act
XI. Protecting Children From Environmental Health and Safety Risks
XII. Environmental Impacts
XIII. Consultation and Coordination With Indian Tribal Governments
XIV. Public Participation
XV. Summary and Explanation of the Proposal
Authority and Signature
Amendments to Standards

I. Executive Summary and Regulatory Issues

    On January 9, 2017, OSHA published its final rule Occupational
Exposure to Beryllium and Beryllium Compounds in the Federal Register
(82 FR 2470). 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 and lung cancer. OSHA concluded that the new
8-hour time-weighted average (TWA) PEL of 0.2 [mu]g/m\3\ reduced this
significant risk to the maximum extent feasible.
    Based on information submitted to the record, in the final rule
OSHA issued three separate standards--for general industry, for
shipyards, and for construction. In addition to the revised PEL, the
final rule established a new short-term exposure limit (STEL) of 2.0
[mu]g/m\3\ over a 15-minute sampling period and an action level of 0.1
[mu]g/m\3\ as an

8-hour TWA, along with a number of ancillary provisions intended to
provide additional protections to employees, such as requirements for
exposure assessment, methods for controlling exposure, respiratory
protection, personal protective clothing and equipment, housekeeping,
medical surveillance, hazard communication, and recordkeeping similar
to those found in other OSHA health standards.
    On March 21, 2017 OSHA published a delay of the effective date for
the final beryllium rule to May 20, 2017 in the Federal Register (82 FR
14439). This action was based on comments received on OSHA's proposed
delay of effective date for the final rule in the Federal Register (82
FR 12318). OSHA proposed this delay in accordance with the January 20,
2017 Presidential directive from the Assistant to the President and
Chief of Staff, entitled ``Regulatory Freeze Pending Review'' (82 FR
8346 (1/24/17)) that directed agencies to consider further delaying the
effective date for regulations beyond the initial 60-day period.
    After a further review of the comments received on the proposed
extension, as well as a review of the applicability of existing OSHA
standards, OSHA is proposing to revoke the ancillary provisions
applicable to the construction and shipyard sectors, but to retain the
new lower PEL of 0.2 [mu]g/m\3\ and the STEL of 2.0 [mu]g/m\3\ for
those sectors. In the final rule, OSHA reviewed the exposure data for
abrasive blasting in construction and shipyards and welding in
shipyards and determined that there is a significant risk of chronic
beryllium disease (CBD) and lung cancer to workers in construction and
shipyards based on the exposure levels observed. Because OSHA
determined that there is significant risk of material impairment of
health at the new lower PEL of 0.2 [mu]g/m\3\, the Agency continues to
believe that it is necessary to protect workers exposed at this level.
However, OSHA is now reconsidering the need for ancillary provisions in
the construction and shipyards sectors. OSHA has evidence that
beryllium exposure in these sectors is limited to the following
operations: Abrasive blasting in construction, abrasive blasting in
shipyards, and welding in shipyards. OSHA has a number of standards
already applicable to these operations, including ventilation (29 CFR
1926.57) and mechanical paint removers (29 CFR 1915.34). In addition,
this proposal provides stakeholders with an additional opportunity to
offer comments on the protections needed for workers exposed to
beryllium in the construction and shipyard sectors, including the need
for the ancillary provisions in the January 9, 2017 construction and
shipyard beryllium standards. This will give OSHA additional
information as it further considers the January 9, 2017 final rule's
provisions for these sectors.
    While the new beryllium rule went into effect on May 20, 2017,
compliance obligations do not begin until March 12, 2018. Moreover,
OSHA will not enforce the January 9, 2017 shipyard and construction
standards without further notice while this new rulemaking is underway.
    OSHA requests feedback on issues associated with the proposed
regulatory action and requests information that would help the Agency
craft the final rule. The Agency welcomes comments concerning all
aspects of this proposal. However, OSHA is especially interested in
responses, supported by evidence and reasons, to the following
questions:
    1. OSHA has proposed revoking the ancillary provisions for the
construction and shipyard sectors while retaining the new (lower) PEL
of 0.2 [mu]g/m\3\ and STEL of 2.0 [mu]g/m\3\ for those sectors. Does
this provide adequate protection to the workers in construction and
shipyard sectors considering the other standards that apply? Should
OSHA keep any or all of the ancillary provisions of the January 9, 2017
final rule for construction and shipyards? If so, which ones?
    2. In particular, what is the incremental benefit if OSHA keeps the
medical surveillance requirements for construction and shipyards
described in the January 9, 2017 final rule, but revokes the other
ancillary provisions? Alternatively, should OSHA keep some of the
medical surveillance requirements for construction and shipyards but
not others? Which medical surveillance requirements are most
appropriate for beryllium-exposed workers in these sectors, if any? For
more information, see Regulatory Alternative #21a, PELs plus medical
surveillance (lowering the PEL and requiring medical surveillance when
exposed above the PEL for operations outside the scope of the proposed
rule), in the 2015 NPRM (80 FR 47565 (8/7/15)). OSHA's estimates of the
medical surveillance costs changed between the NPRM and final rule
because of a change of the medical surveillance trigger from the action
level to the PEL; updated exposure data and hire rates; and revised
unit costs in response to comments and conversion from 2010 to 2015
dollars.
    3. In addition to the proposal in this notice, OSHA is considering
extending the compliance dates in the January 9, 2017 final rule by a
year for the construction and shipyard standards. This would give
affected employers additional time to come into compliance with its
requirements, which could be warranted by the uncertainty created by
this proposal.
    In the January 9, 2017 final rule, OSHA analyzed the technological
and economic feasibility of complying with the rule for the
construction and shipyard sectors and found that the rule was
technologically and economically feasible for these sectors. Since the
changes we propose today will retain the new PELs and eliminate the
ancillary provisions, these changes will not affect the feasibility
findings. The technological and economic feasibility of the January 9,
2017 final rule is established in the FEA, which is summarized in
Sections IV and VI of this preamble.
    Table I-1, which is based on the material presented in the 2016 FEA
with updated assumptions, provides OSHA's best estimate of the cost
savings to shipyard and construction establishments in all affected
application groups as a result of this proposal to remove all of the
ancillary provision requirements in those sectors. OSHA is proposing to
remove the following ancillary provisions: Exposure monitoring,
regulated areas (and competent person in construction), a written
exposure control plan, protective equipment and work clothing, hygiene
areas and practices, housekeeping, medical surveillance, medical
removal, and worker training. Note that, because OSHA is not proposing
to change the January 9, 2017 PELs and STELs in this proposal, OSHA has
not estimated any cost savings related to engineering controls or
respirators. Note also that, although not a requirement in the January
9, 2017 beryllium standards, OSHA estimated costs there for rule
familiarization. Since some employers may have already incurred
familiarization costs in reviewing those published standards, OSHA
views them as sunk costs and has not included them in the estimated
cost savings. Furthermore, OSHA has added some modest costs in this
proposal to reflect the fact that construction and shipyard employers
would be expected to devote some time becoming familiar with the
revocation of the January 9, 2017 ancillary provisions.

 Table I-1--Total Annualized Cost Savings, by Sector and Six-Digit NAICS Industry, for Entities Affected by the
                               Beryllium Proposal; Results Shown by Size Category
                                     [3 percent discount rate, 2016 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                Very small
   Application group/NAICS            Industry        All establishments    Small entities      entities  (<20
                                                                             (SBA-defined)        Employees)
----------------------------------------------------------------------------------------------------------------
                                         Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------
238320.......................  Painting and Wall              $4,087,412          $3,445,984          $2,420,659
                                Covering Contractors.
238990.......................  All Other Specialty             3,787,418           2,916,925           1,998,054
                                Trade Contractors.
----------------------------------------------------------------------------------------------------------------
                                          Abrasive Blasting--Shipyards
----------------------------------------------------------------------------------------------------------------
336611a......................  Ship Building and               3,081,907             990,140             524,187
                                Repairing.
----------------------------------------------------------------------------------------------------------------
                                              Welding in Shipyards
----------------------------------------------------------------------------------------------------------------
336611b......................  Ship Building and                  34,217              11,283               6,421
                                Repairing.
----------------------------------------------------------------------------------------------------------------
                                                      Total
----------------------------------------------------------------------------------------------------------------
Construction Subtotal........  .....................           7,874,830           6,362,909           4,418,712
Maritime Subtotal............  .....................           3,116,125           1,001,423             530,608
                                                     -----------------------------------------------------------
Total, All Industries........  .....................          10,990,954           7,364,331           4,949,321
----------------------------------------------------------------------------------------------------------------
Notes: Figures in rows may not add to totals due to rounding.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use
  mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may
  do both welding and abrasive blasting.
Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.

    The remainder of this preamble presents the legal requirements of
the Occupational Safety and Health Act (OSH Act) (Section II, Pertinent
Legal Authority); a summary of the events leading to the proposal
(Section III); the technological feasibility summary (Section IV); the
preliminary economic analysis for the proposal (Section V); the
preliminary economic feasibility findings and the regulatory
flexibility certification for the proposal (Section VI); a summary of
the analysis of this proposal under the Paperwork Reduction Act of 1995
(Section VII); analyses under various executive orders and a
description of the implications for State-Plan States (Sections VIII-
XIII); instructions for public participation (Section XIV); and the
summary and explanation of OSHA's proposal to maintain the TWA PEL of
0.2 [mu]g/m\3\ and STEL of 2 [mu]g/m\3\ for operations in construction
and shipyards while revoking the January 9, 2017 ancillary provisions
for these sectors (Section XV).

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 al., 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. 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 provides that in promulgating health standards dealing with
toxic materials or harmful physical agents, such as the January 9, 2017
final rule regulating occupational exposure to beryllium,

[t]he Secretary . . . shall 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. 655(b)(5). The Supreme Court has held that before the
Secretary can promulgate any permanent health or safety standard, he
must make a threshold finding that significant risk is present and that
such risk can be eliminated or lessened by a change in practices. See
Industrial Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607,
641-42 (1980) (plurality opinion) (``Benzene''). Thus, section 6(b)(5)
of the Act requires health standards to reduce significant risk to the
extent feasible. See id.
    The Court further observed that what constitutes ``significant
risk'' is ``not a mathematical straitjacket'' and must be ``based
largely on policy considerations.'' Id. at 655, 655 n.62. OSHA retains

great discretion . . . under Section 3(8) [of the Act], especially
in an area where scientific certainty is impossible. In the first
instance, it is the agency itself that determines the existence of a
``significant'' risk . . . In making the difficult judgment as to
what level of harm is unacceptable, the agency may rely on its own
sound ``considerations of policy'' as well as hard factual data . .
.

    United Steelworkers v. Marshall, 647 F.2d 1189, 1248 (D.C. Cir.
1980) (``Lead I'') (internal citations omitted). When evaluating such
considerations, OSHA exercises its discretion and its ``delegated power
to make within certain limits decisions that Congress normally makes
itself.'' Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 475
(D.C. Cir. 1974). Accordingly, OSHA's discretionary authority under the
Act is broad. See Lead I, 647 F.2d at 1230. Indeed, ``[a] number of
terms of the statute give OSHA almost unlimited discretion to devise
means to achieve the congressionally mandated goal'' of ensuring worker
safety and health. Id. (citation omitted). Once OSHA makes its
significant risk finding, the standard

must be ``reasonably necessary or appropriate'' to reduce or eliminate
that risk within the meaning of section 3(8) of the Act (29 U.S.C.
652(8)) and Benzene (448 U.S. at 642). See Bldg. and Constr. Trades
Dep't v. Brock, 838 F.2d 1258, 1269 (D.C. Cir. 1988) (``Asbestos II'').
In choosing among regulatory alternatives, however, ``[t]he
determination that [one standard] is appropriate, as opposed to a
marginally [more or less protective] standard, is a technical decision
entrusted to the expertise of the agency.'' Nat'l Mining Ass'n v. Mine
Safety and Health Admin., 116 F.3d 520, 528 (D.C. Cir. 1997) (analyzing
a Mine Safety and Health Administration standard under the Benzene
significant risk standard). Where there is significant risk below the
PEL, OSHA should use its regulatory authority to impose additional
requirements on employers when those requirements will result in a
greater than de minimis incremental benefit to workers' health. See
Asbestos II, 838 F.2d at 1274.
    The Act also authorizes the Secretary to ``modify'' or ``revoke''
any occupational safety or health standard. 29 U.S.C. 655(b). The
Supreme Court has acknowledged that regulatory agencies do not
establish rules of conduct to last forever, and agencies may revise
their rules if supported by a reasoned analysis for the change. 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.
    OSHA is required to set standards ``on the basis of the best
available evidence,'' 29 U.S.C. 655(b)(5), and its determinations are
``conclusive'' if supported by ``substantial evidence in the record
considered as a whole,'' 29 U.S.C. 655(f). As noted above, the Supreme
Court, in Benzene, explained that OSHA must look to ``a body of
reputable scientific thought'' in making its determinations, while
noting that a reviewing court must ``give OSHA some leeway where its
findings must be made on the frontiers of scientific knowledge.'' 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. Pub. Citizen Health Research Grp. v. Tyson, 796 F.2d 1479,
1500 (D.C. Cir. 1986). 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. Id.
    OSHA standards must be both technologically and economically
feasible. See Lead I, 647 F.2d at 1264. 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
PEL 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). A court must examine the cost
of compliance with an OSHA standard

in relation to the financial health and profitability of the
industry and the likely effect of such costs on unit consumer
prices. . . . [T]he practical question is whether the standard
threatens the competitive stability of an industry, . . . or whether
any intra-industry or inter-industry discrimination in the standard
might wreck such stability or lead to undue concentration.

Id. (internal citations omitted). The courts have further observed that
granting companies reasonable time to comply with new PELs may enhance
economic feasibility. See id.
    Because section 6(b)(5) of the Act explicitly imposes the ``to the
extent feasible'' limitation on the setting of health standards, OSHA
is not permitted to use cost-benefit analysis to make its standards-
setting decisions. 29 U.S.C. 655(b)(5). An OSHA standard must be 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 because it is less costly. See Int'l Union,
UAW v. OSHA, 37 F.3d 655, 668 (D.C. Cir. 1994); see also Cotton Dust,
452 U.S. at 514 n.32.

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. 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 Sec.  6(b)(5).

Cotton Dust, 452 U.S. at 509. Thus, while OSHA estimates the costs and
benefits of its proposed and final rules, in part to ensure compliance
with requirements such as those in Executive Orders 12866 and 13771,
these calculations do not form the basis for the Agency's regulatory
decisions.

III. Events Leading to the Proposal

    The first occupational exposure limit for beryllium was set in 1949
by the Atomic Energy Commission (AEC), which required that beryllium
exposure in the workplaces under its jurisdiction be limited to 2
[mu]g/m\3\ as an 8-hour time-weighted average (TWA), and 25 [mu]g/m\3\
as a peak exposure never to be exceeded (Document ID 1323). These
exposure limits were adopted by all AEC installations handling
beryllium, and were binding on all AEC contractors involved in the
handling of beryllium.
    In 1956, the American Industrial Hygiene Association (AIHA)
published a Hygienic Guide which supported the AEC exposure limits. In
1959, the American Conference of Governmental Industrial Hygienists
(ACGIH[supreg]) also adopted a Threshold Limit Value (TLV[supreg]) of 2
[mu]g/m\3\ as an 8-hour TWA (Document ID 0498). In 1970, the American
National Standards Institute (ANSI) issued a national consensus
standard for beryllium and beryllium compounds (ANSI Z37.29-1970). The
standard set a permissible exposure limit (PEL) for beryllium and
beryllium compounds at 2 [mu]g/m\3\ as an 8-hour TWA; 5 [mu]g/m\3\ as
an acceptable ceiling concentration; and 25 [mu]g/m\3\ as an acceptable
maximum peak above the acceptable ceiling concentration for a maximum
duration of 30 minutes in an 8-hour shift (Document ID 1303).
    In 1971, OSHA adopted, under Section 6(a) of the Occupational
Safety and Health Act of 1970, and made applicable to general industry,
the ANSI standard (Document ID 1303). Section 6(a) provided that in the
first two years after the effective date of the Act, OSHA was to
promulgate ``start-up'' standards, on an expedited basis and without
public hearing or comment, based on national consensus or established
Federal standards that improved employee safety or health. Pursuant to
that authority, in 1971, OSHA promulgated approximately 425 PELs for
air contaminants, including beryllium, derived principally from Federal
standards applicable to government contractors under the Walsh-Healey
Public Contracts Act, 41 U.S.C. 35, and the Contract Work Hours and
Safety Standards Act (commonly

known as the Construction Safety Act), 40 U.S.C. 333. The Walsh-Healey
Act and Construction Safety Act standards, in turn, had been adopted
primarily from ACGIH[supreg]'s TLV[supreg]s as well as several from
United States of America Standards Institute (USASI) (later the
American National Standards Institute (ANSI)).
    The National Institute for Occupational Safety and Health (NIOSH)
issued a document entitled Criteria for a Recommended Standard:
Occupational Exposure to Beryllium (Criteria Document) in June 1972
with Recommended Exposure Limits (RELs) of 2 [mu]g/m\3\ as an 8-hour
TWA and 25 [mu]g/m\3\ as an acceptable maximum peak above the
acceptable ceiling concentration for a maximum duration of 30 minutes
in an 8-hour shift (Document ID 1324). OSHA reviewed the findings and
recommendations contained in the Criteria Document along with the AEC
control requirements for beryllium exposure. OSHA also considered
existing data from animal and epidemiological studies, and studies of
industrial processes of beryllium extraction, refinement, fabrication,
and machining. In 1975, OSHA asked NIOSH to update the evaluation of
the existing data pertaining to the carcinogenic potential of
beryllium. In response to OSHA's request, the Director of NIOSH stated
that, based on animal data and through all possible routes of exposure
including inhalation, ``beryllium in all likelihood represents a
carcinogenic risk to man.''
    In October 1975, OSHA proposed a new beryllium standard for all
industries based on information from studies finding that beryllium
caused cancer in animals (40 FR 48814 (10/17/75)). Adoption of this
proposal would have lowered the 8-hour TWA exposure limit from 2 [mu]g/
m\3\ to 1 [mu]g/m\3\. In addition, the proposal included ancillary
provisions for such topics as exposure monitoring, hygiene facilities,
medical surveillance, and training related to the health hazards from
beryllium exposure. The rulemaking was never completed.
    In 1977, NIOSH recommended an exposure limit of 0.5 [mu]g/m\3\ and
identified beryllium as a potential occupational carcinogen. In
December 1998, ACGIH published a Notice of Intended Change for its
beryllium exposure limit. The notice proposed a lower TLV of 0.2 [mu]g/
m\3\ over an 8-hour TWA based on evidence of CBD and sensitization in
exposed workers. Then in 2009, ACGIH adopted a revised TLV for
beryllium that lowered the 8-hour TWA to 0.05 [mu]g/m\3\ (inhalable)
(see Document ID 1755, Tr. 136).
    In 1999, the Department of Energy (DOE) issued a Chronic Beryllium
Disease Prevention Program (CBDPP) Final Rule for employees exposed to
beryllium in its facilities (Document ID 1323). The DOE rule set an
action level of 0.2 [mu]g/m\3\, and adopted OSHA's PEL of 2 [mu]g/m\3\
or any more stringent PEL OSHA might adopt in the future (10 CFR
850.22; 64 FR 68873 and 68906, Dec. 8, 1999).
    Also in 1999, OSHA was petitioned by the Paper, Allied-Industrial,
Chemical and Energy Workers International Union (PACE) (Document ID
0069) and by Dr. Lee Newman and Ms. Margaret Mroz, from the National
Jewish Health (NJH) (Document ID 0069), to promulgate an Emergency
Temporary Standard (ETS) for beryllium in the workplace. In 2001, OSHA
was petitioned for an ETS by Public Citizen Health Research Group and
again by PACE (Document ID 0069). In order to promulgate an ETS, the
Secretary of Labor must prove (1) that employees are exposed to grave
danger from exposure to a hazard, and (2) that such an emergency
standard is necessary to protect employees from such danger (29 U.S.C.
655(c) [section 6(c)]). The burden of proof is on the Department and
because of the difficulty of meeting this burden, the Department
usually proceeds when appropriate with ordinary notice and comment
[section 6(b)] rulemaking rather than a section 6(c) ETS. Thus, instead
of granting the ETS requests, OSHA instructed staff to further collect
and analyze research regarding the harmful effects of beryllium in
preparation for possible section 6(b) rulemaking.
    On November 26, 2002, OSHA published a Request for Information
(RFI) for ``Occupational Exposure to Beryllium'' (Document ID 1242).
The RFI contained questions on employee exposure, health effects, risk
assessment, exposure assessment and monitoring methods, control
measures and technological feasibility, training, medical surveillance,
and impact on small business entities. In the RFI, OSHA expressed
concerns about health effects such as chronic beryllium disease (CBD),
lung cancer, and beryllium sensitization. OSHA pointed to studies
indicating that even short-term exposures below OSHA's PEL of 2 [mu]g/
m\3\ could lead to CBD. The RFI also cited studies describing the
relationship between beryllium sensitization and CBD (67 FR at 70708).
In addition, OSHA stated that beryllium had been identified as a
carcinogen by organizations such as NIOSH, the International Agency for
Research on Cancer (IARC), and the Environmental Protection Agency
(EPA); and cancer had been evidenced in animal studies (67 FR at
70709).
    On November 15, 2007, OSHA convened a Small Business Advocacy
Review Panel to review a draft proposed standard for occupational
exposure to beryllium. OSHA convened this panel under Section 609(b) of
the Regulatory Flexibility Act (RFA), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 601 et
seq.). The Panel included representatives from OSHA, the Solicitor's
Office of the Department of Labor, the Office of Advocacy within the
Small Business Administration, and the Office of Information and
Regulatory Affairs of the Office of Management and Budget. Small Entity
Representatives (SERs) made oral and written comments on the draft rule
and submitted them to the panel.
    The SBREFA Panel issued a report on January 15, 2008 which included
the SERs' comments. SERs expressed concerns about the impact of the
ancillary requirements such as exposure monitoring and medical
surveillance. Their comments addressed potential costs associated with
compliance with the draft standard, and possible impacts of the
standard on market conditions, among other issues. In addition, many
SERs sought clarification of some of the ancillary requirements such as
the meaning of ``routine'' contact or ``contaminated surfaces.''
    OSHA then developed a draft preliminary beryllium health effects
evaluation (Document ID 1271) and a draft preliminary beryllium risk
assessment (Document ID 1272), and in 2010, OSHA hired a contractor to
oversee an independent scientific peer review of these documents. The
contractor identified experts familiar with beryllium health effects
research and ensured that these experts had no conflict of interest or
apparent bias in performing the review. The contractor selected five
experts with expertise in such areas as pulmonary and occupational
medicine, CBD, beryllium sensitization, the Beryllium Lymphocyte
Proliferation Test (BeLPT), beryllium toxicity and carcinogenicity, and
medical surveillance. Other areas of expertise included animal
modeling, occupational epidemiology, biostatistics, risk and exposure
assessment, exposure-response modeling, beryllium exposure assessment,
industrial hygiene, and occupational/environmental health engineering.
    Regarding the preliminary health effects evaluation, the peer
reviewers

concluded that the health effect studies were described accurately and
in sufficient detail, and OSHA's conclusions based on the studies were
reasonable (Document ID 1210). The reviewers agreed that the OSHA
document covered the significant health endpoints related to
occupational beryllium exposure. Peer reviewers considered the
preliminary conclusions regarding beryllium sensitization and CBD to be
reasonable and well presented in the draft health evaluation section.
All reviewers agreed that the scientific evidence supports
sensitization as a necessary condition in the development of CBD. In
response to reviewers' comments, OSHA made revisions to more clearly
describe certain sections of the health effects evaluation. In
addition, OSHA expanded its discussion regarding the BeLPT.
    Regarding the preliminary risk assessment, the peer reviewers were
highly supportive of OSHA's approach and major conclusions (Document ID
1210). The peer reviewers stated that the key studies were appropriate
and their selection clearly explained in the document. They regarded
the preliminary analysis of these studies to be reasonable and
scientifically sound. The reviewers supported OSHA's conclusion that
substantial risk of sensitization and CBD were observed in facilities
where the highest exposure-generating processes had median full-shift
exposures around 0.2 [mu]g/m\3\ or higher, and that the greatest
reduction in risk was achieved when exposures for all processes were
lowered to 0.1 [mu]g/m\3\ or below.
    In February 2012, OSHA received for consideration a draft
recommended standard for beryllium (Materion and USW, 2012, Document ID
0754). This draft standard was the product of a joint effort between
two stakeholders: Materion Corporation, a leading producer of beryllium
and beryllium products in the United States, and the United
Steelworkers, an international labor union representing workers who
manufacture beryllium alloys and beryllium-containing products in a
number of industries. They sought to craft an OSHA-like model beryllium
standard that would have support from both labor and industry. OSHA
considered this draft standard along with other information submitted
during the development of the Notice of Proposed Rulemaking (NPRM) for
beryllium published in 2015. As described in greater detail in the
Introduction to the Summary and Explanation of the final rule, there
was substantial agreement between the submitted joint draft standard
and the OSHA proposed standard.
    On August 7, 2015, OSHA published its NPRM in the Federal Register
(80 FR 47565 (8/7/15)). In the NPRM, OSHA made a preliminary
determination that employees exposed to beryllium and beryllium
compounds at the preceding PEL face a significant risk to their health
and that promulgating the proposed standard would substantially reduce
that risk. The NPRM (Section XVIII) also responded to the SBREFA Panel
recommendations, which OSHA carefully considered, and clarified the
requirements about which SERs expressed confusion. OSHA also discussed
the regulatory alternatives recommended by the SBREFA Panel in NPRM,
Section XVIII, and in the PEA (Document ID 0426).
    The NPRM invited interested stakeholders to submit comments on a
variety of issues and indicated that OSHA would schedule a public
hearing upon request. Commenters submitted information and suggestions
on a variety of topics. In addition, in response to a request from the
Non-Ferrous Founders' Society, OSHA scheduled an informal public
hearing on the proposed rule. OSHA invited interested persons to
participate by providing oral testimony and documentary evidence at the
hearing. OSHA also welcomed presentation of data and documentary
evidence that would provide the Agency with evidence to use in
determining whether to develop a final rule.
    The public hearing was held in Washington, DC on March 21 and 22,
2016. Administrative Law Judge William Colwell presided over the
hearing. OSHA heard testimony from several organizations, such as
public health groups, the Non-Ferrous Founders' Society, other industry
representatives, and labor unions. Following the hearing, participants
who had filed notices of intent to appear were allowed 30 days--until
April 21, 2016--to submit additional evidence and data, and an
additional 15 days--until May 6, 2016--to submit final briefs,
arguments, and summations (Document ID 1756, Tr. 326). In all, the OSHA
rulemaking record contained over 1,900 documents, including all the
studies OSHA relied on in its preliminary health effects and risk
assessment analyses, the hearing transcript and submitted testimonies,
the joint Materion-USW draft proposed standard, and the pre- and post-
hearing comments and briefs.
    In 2016, in an action parallel to OSHA's rulemaking, DOE proposed
to update its action level to 0.05 [mu]g/m\3\ (81 FR 36704-36759, June
7, 2016). The DOE action level triggers workplace precautions and
control measures such as periodic monitoring, exposure reduction or
minimization, regulated areas, hygiene facilities and practices,
respiratory protection, protective clothing and equipment, and warning
signs (Document ID 1323; 10 CFR 850.23(b)). Unlike OSHA's PEL, however,
DOE's selection of an action level is not required to meet statutory
requirements of technological and economic feasibility.
    On January 9, 2017, OSHA published its final rule Occupational
Exposure to Beryllium and Beryllium Compounds in the Federal Register
(82:2470-2757 (1/9/17)). Based on the entire rulemaking record, OSHA
concluded that employees exposed to beryllium and beryllium compounds
at the preceding PELs were at significant risk of material impairment
of health, specifically chronic beryllium disease and lung cancer. OSHA
concluded that the new PEL of 0.2 [mu]g/m\3\ reduced this significant
risk to the maximum extent that is technologically and economically
feasible. The final rule also included ancillary provisions to protect
employees, such as requirements for exposure assessment, methods for
controlling exposure, respiratory protection, personal protective
clothing and equipment, housekeeping, medical surveillance, hazard
communication, and recordkeeping.
    In a change from the NPRM, OSHA included the construction and
shipyard industries in the beryllium final rule. OSHA's decision was
based on supportive testimony and comments from stakeholders along with
exposure data in the record indicating the potential for exposures
above the action level for abrasive blasting using coal and copper
slags (Document ID 1756; 1782; 1790). OSHA issued three separate
standards for general industry, construction, and shipyards in an
attempt to tailor requirements to each sector. The final rule also
included other changes from the NPRM that were based on OSHA's analysis
of the record. These included changes in the scope of the standards,
exposure assessment requirements, beryllium work areas, personal
protective clothing and equipment, medical surveillance requirements,
and compliance dates.
    On February 1, 2017, OSHA published a delay of the effective date
for the final rule in the Federal Register (82:8901 (2/1/17)). OSHA
implemented this action based on the Presidential directive as
expressed in the memorandum of January 20, 2017, from the Assistant to
the President and Chief of Staff, entitled ``Regulatory Freeze

Pending Review'' (82 FR 8346 (January 24, 2017)). That memorandum
directed the heads of Executive Departments and Agencies to temporarily
postpone for 60 days from the date of the memorandum the effective
dates of all regulations that had been published in the Federal
Register but had not yet taken effect. OSHA therefore delayed the
effective date for the final rule Occupational Exposure to Beryllium
and Beryllium Compounds to March 21, 2017.
    On March 2, 2017, OSHA published a proposed delay of effective date
for the final rule in the Federal Register (82 FR 12318 (3/2/17)). OSHA
proposed this further delay in accordance with the January 20, 2017
Presidential directive from the Assistant to the President and Chief of
Staff, entitled ``Regulatory Freeze Pending Review'' (82 FR 8346
(January 24, 2017)) that directed agencies to consider further delaying
the effective date for regulations beyond the initial 60-day period.
OSHA preliminarily determined that it would be appropriate to further
delay the effective date of the final rule to give the new
administration time to review questions of fact, law, and policy raised
therein. OSHA therefore proposed extending the effective date to May
20, 2017 and sought comment on its proposal to extend the effective
date by an additional 60 days. OSHA received twenty-five unique
comments on this proposal with many of the commenters supporting the
delay considering the ongoing transition to a new administration. Some
of these commenters also requested that OSHA further review the impact
of the rule on entities that would be affected by changes from the
proposed beryllium rule. Several commenters opposed the proposed delay
of the effective date.
    On March 21, 2017, after considering all the comments received,
OSHA finalized the delay of the effective date for the final beryllium
rule in the Federal Register (82 FR 14439 (2/21/17)). This action
extended the effective date to May 20, 2017 and provided OSHA with
additional time to conduct a further review of the final rule,
including consideration of concerns raised by interested parties. After
careful consideration, and for reasons explained fully in the Summary
and Explanation of this preamble, OSHA is proposing to revoke the
ancillary provisions for both construction and shipyards adopted in the
January 9, 2017 final rule and retain the new lower PEL of 0.2
[micro]g/m\3\ and STEL of 2.0 [mu]g/m\3\ for those sectors (see Section
XV, Summary and Explanation of the Proposal).

IV. Technological Feasibility Summary

Exposure Profile

    This section summarizes the basis for OSHA's technological
feasibility findings made in the 2016 Final Economic Analysis (FEA) for
the January 9, 2017 beryllium final rule (see Docket ID 2042, FEA
Chapter IV--Technological Feasibility). It is presented here for
informational purposes only. The information in this section is drawn
entirely from the 2016 FEA and contains no new information or
assessment.
Abrasive Blasting in Construction and Shipyards
    The primary abrasive blasting job categories include the abrasive
blasting operator (blaster) and pot tender (blaster's helper or
assistant) during open blasting projects. Support personnel such as pot
tenders or abrasive media cleanup workers might also be employed to
clean up (e.g., by vacuuming or sweeping) and recycle spent abrasive
and to set up, dismantle, and move containment systems and supplies
(NIOSH, 1976, Document ID 0779; NIOSH, 1993, 0777; NIOSH, 1995, 0773;
NIOSH, 2007, 0770; Flynn and Susi, 2004, 1608; Meeker et al., 2005,
0699).
    Section 15 of Chapter IV of the 2016 Final Economic Analysis (FEA)
for the January 9, 2017 final beryllium rule included a detailed
discussion of exposure data and analysis for the development of the
exposure profile for workers in abrasive blasting operations. Because
OSHA addressed general industry abrasive blasting operations in other
general industry sections where appropriate, such as in the nonferrous
foundries industry, the exposure profile in Section 15 addressed only
exposure data from construction and shipyard tasks. The exposure
profile for abrasive blasters, pot tenders/helpers, and abrasive media
cleanup workers was based on two National Institute for Occupational
Safety and Health (NIOSH) evaluations of beryllium exposure from
abrasive blasting with coal slag, unpublished sampling results for
abrasive blasting operations from four U.S. shipyards, and data
submitted by the U.S. Navy (NIOSH, 1983, Document ID 0696; NIOSH, 2007,
0770; OSHA, 2005, 1166; U.S. Navy, 2003, 0145).

                                               Table IV.1--Exposure Profile for Abrasive Blasting Workers
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Number of full-shift PBZ sample results in range  ([mu]g/m\3\)
                                         ------------------------------------------------------------------------------------------------  Total number
                                               <0.1       >=0.1 to <=0.2   >0.2 to <=0.5   >0.5 to <=1.0   >1.0 to <=2.0       >2.0         of samples
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasters.......................              45              38              22               7               8              28             148
                                                   30.4%           25.7%           14.8%            4.7%            5.4%           18.9%            100%
Pot Tender..............................               9               7               0               0               0               0              16
                                                   56.2%           43.8%              0%              0%              0%              0%            100%
Cleanup.................................              20               8               0               0               1               1              30
                                                   66.6%           26.7%              0%              0%            3.3%            3.3%            100%
                                         ---------------------------------------------------------------------------------------------------------------
    Totals..............................              74              53              22               7               9              29             194
                                                   38.1%           27.3%           11.2%            3.6%            4.6%             15%            100%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: Document ID 0145; OSHA 2005, Document ID 1166; NIOSH 1983, 0696; NIOSH 2007. 0770.
Notes: Sample results are expressed as eight-hour time-weighted averages and include sampling durations of 240 minutes or longer.
Non-detected shipyard results are incorporated into the exposure profile by assigning the detection limit value to each result reported as less than the
  sample limit of detection.
Excludes four results where garnet was used as the abrasive due to high nondetectable reporting limits.

Welding in Shipyards
    Similar to the profile for abrasive blasting activities, OSHA used
exposure data from the 2016 FEA to develop the exposure profile for
welding in shipyards. OSHA used the exposure data from Chapter IV-10
Appendices 2 and 3 and combined the aluminum base metal and non-
aluminum or unknown base material data. OSHA removed shorter duration
samples that appeared in Appendix 3 of FEA Chapter IV-10. Seven
maritime welding samples from Appendix 3, Table IV-10.6 with sampling
durations of 240 minutes or greater were used in this profile to
represent the 8-hour TWA samples.

                                            IV.2--Welding in Shipyards--Beryllium 8-Hour TWA Exposure Profile
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Number of beryllium samples in range ([mu]g/m\3\) and percent of total in range
---------------------------------------------------------------------------------------------------------------------------------------------------------
                        Range                            <0.1      >0.1 to <=0.2   >0.2 to <=0.5   >0.5 to <=1.0   >1.0 to <=2.0     >2.0        Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Aluminum Base Material Percent......................           4               0               0               2               1           0           7
                                                             57%              0%              0%           28.6%           14.3%          0%        100%
Base Material Not Aluminum or Unknown Percent.......         123               2               0               2               0           0         127
                                                           96.9%           21.6%              0%            1.6%              0%          0%        100%
                                                     ---------------------------------------------------------------------------------------------------
    Totals..........................................         127               2               0               4               1           0         134
                                                           94.8%            1.5%              0%            3.0%            0.7%          0%        100%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: OSHA Shipyards, 2005, Document ID 1166; U.S. Navy, 2003, Document ID 0145.
Beryllium samples below the limit of detection are recast as 0 [mu]g/m\3\ to reflect likely absence of beryllium in the work materials.
Data includes samples collected over periods of 240 minutes or longer, to avoid samples with elevated limits of detection that cannot be meaningfully
  interpreted.

Technological Feasibility Determination

    Overall, based on the information discussed in Chapter IV of Final
Economic Analysis of the January 9, 2017 final beryllium rule, OSHA
determined that the majority of the exposures in construction and
shipyards are either already at or below the new final PEL, or can be
adequately controlled to levels below the final PEL through the
implementation of additional engineering and work practice controls for
most operations most of the time. The one exception is that OSHA
determined that workers who perform open-air abrasive blasting using
mineral grit (i.e., coal slag) will routinely be exposed to levels
above the final PEL even after the installation of feasible engineering
and work practice controls, and therefore, these workers will also be
required to wear respiratory protection. Therefore, OSHA concluded in
the January 9, 2017 final rule that the final PEL of 0.2 [mu]g/m\3\ is
technologically feasible in abrasive blasting in construction and
shipyards and in welding in shipyards.

V. Preliminary Economic Analysis

A. Introduction

    This Preliminary Economic Analysis (PEA) addresses issues related
to the profile of affected application groups, establishments, and
employees, the cost savings, and the health effects of OSHA's proposal
to revoke both the construction and shipyard ancillary provisions and
make no changes to the January 9, 2017 final rule's PEL and STEL for
the shipyard and construction industries.
    The proposed actions are not ``economically significant regulatory
actions'' under Executive Order 12866 or UMRA, nor are they ``major
rules'' under the Congressional Review Act (5 U.S.C. 801 et seq.).
Neither the benefits nor the costs of these proposed actions exceed
$100 million. In addition, they do not meet any of the other criteria
specified by UMRA for a significant regulatory action or the
Congressional Review Act for a major rule. However, these actions have
been determined to be ``significant'' under Executive Order 12866.
    Under this proposal, employers in shipyards and construction would
no longer be required to implement the ancillary provisions adopted by
the January 9, 2017 final rule. The nine ancillary provisions being
removed by this proposal are: (1) Assess employees' exposure to
airborne beryllium, (2) establish regulated areas or a competent
person, (3) develop a written exposure control plan, (4) provide
personal protective work clothing and equipment, (5) establish hygiene
areas and practices, (6) implement housekeeping measures, (7) provide
medical surveillance, (8) provide medical removal for employees who
have developed CBD or been confirmed positive for beryllium
sensitization, and (9) provide appropriate training. OSHA assumes that
these employers have already incurred the costs of familiarizing
themselves with the ancillary provisions in the final rule. In
addition, the proposal would retain the new PEL and STEL through
revisions of the Z Table in 29 CFR 1915.1000 in shipyards and Appendix
A to 29 CFR 1926.55 in construction. The changes to these tables are a
technical correction, given the proposed changes, and will not affect
the PEL and STEL requirements of the final rule. While OSHA still
welcomes comment on the applicability of existing standards to the
operations covered by this proposal, this PEA provides OSHA's
preliminary assessment of how those standards impact the costs,
benefits, and baseline compliance associated with the beryllium rule.
    This Introduction to the PEA is followed by:

 Section B: Profile of Affected Application Groups,
Establishments, and Employees
 Section C: Cost Savings
 Section D: Health Benefits

B. Profile of Affected Application Groups, Establishments, and
Employees

Introduction
    In this section, OSHA presents the preliminary profile of
industries affected by this proposal to revoke the ancillary provisions
for the shipyard and construction sectors (82 FR 2470-2757, 1/9/2017)
while retaining the revised PEL and STEL for those sectors. The profile
data in this section are drawn from the industry profiles in Chapter
III and exposure profiles and data in Chapter IV of the Final Economic
Analysis supporting the new beryllium standards (``2016 FEA''; Document
ID 2042).
    As a first step, OSHA identifies the North American Industrial
Classification System (NAICS) industries, both in the shipyard and
construction sectors, with potential

worker exposure to beryllium. Next, OSHA provides statistical
information on the affected industries, including the number of
affected entities and establishments, the number of workers whose
exposure to beryllium could result in disease or death (``at-risk
workers''), and the average revenue and profits for affected entities
and establishments by six-digit NAICS industry.\1\ This information is
provided for each affected industry as a whole, as well as for small
entities, as defined by the Small Business Administration (SBA), and
for ``very small'' entities, defined by OSHA as those with fewer than
20 employees, in each affected industry (U.S. Census Bureau, 2014).
---------------------------------------------------------------------------

    \1\ The Census Bureau defines an establishment as a single
physical location at which business is conducted or services or
industrial operations are performed. The Census Bureau defines a
business firm or entity as a business organization consisting of one
or more domestic establishments in the same state and industry that
are specified under common ownership or control. The firm and the
establishment are the same for single-establishment firms. For each
multi-establishment firm, establishments in the same industry within
a state will be counted as one firm; the firm employment and annual
payroll are summed from the associated establishments. (U.S. Census
Bureau, Statistics of U.S. Businesses, Glossary, 2017, https://www.census.gov/programs-surveys/susb/about/glossary.html (Accessed
March 3, 2017).
---------------------------------------------------------------------------

    For each industry sector identified, the Agency describes the uses
of beryllium and estimates the number of establishments and employees
that may be affected by this rulemaking. Employee exposure to beryllium
can also occur as a result of certain processes (such as welding) that
are found in many industries. This analysis will use the term
``application group'' to refer to a cross-industry group with a common
process.
    Beryllium is rarely used by all establishments in any particular
industry because of its unique properties and relatively high cost. In
Chapter III of the 2016 FEA, OSHA described each application group;
identified the processes and occupations with beryllium exposure,
including available sampling exposure measurements; and explained how
OSHA estimated the number of establishments working with beryllium and
the number of employees exposed to beryllium. Those estimates and the
new exposure profile for abrasive blasting in construction and
shipyards and welding in shipyards are presented in this preamble,
along with a brief description of the application groups and an
explanation of the derivation of the new exposure profiles. For
additional information about these data and the application groups,
please see Chapter III of the 2016 FEA.\2\ Finally, the Agency
discusses wage data, the hire rate, and current industry practices.
---------------------------------------------------------------------------

    \2\ OSHA contractor Eastern Research Group (ERG) provided
support for the 2016 FEA. References to ERG's analytical work appear
throughout this PEA.
---------------------------------------------------------------------------

    All costs are estimated in 2016 dollars. Costs reported in 2016
dollars were applied directly in this PEA; wage data were updated to
2016 dollars using BLS data; all other costs reported for years earlier
than 2016 were updated to 2016 dollars using the GDP implicit price
deflator (OSHA, 2017).
Affected Application Groups
    OSHA's 2016 FEA identified one affected application group in the
construction sector and two application groups in the shipyard sector.
Both the shipyard and construction sectors have employees in the
abrasive blasting application group, and the shipyard sector has
employees in the welding application group.
    In the following sections, OSHA describes the application groups in
construction and shipyards that will be affected by this proposal.
Abrasive Blasting
    Abrasive blasting involves the use of hand-held or automatic
equipment to direct a stream of abrasive material at high speed against
a surface to clean, abrade, etch, or otherwise change the original
appearance or condition of the surface (WorkSafe, 2000, Document ID
0692). Surfaces commonly treated by abrasive blasting techniques
include iron, steel, aluminum, brass, copper, glass, masonry (brick,
concrete, stone, etc.), sand castings, plastic, and wood (NIOSH, 1976,
Document ID 0779). In construction and shipyards, abrasive blasting is
primarily used for two purposes:
     Cleaning surfaces by removing unwanted paint, rust, scale,
dirt, salts, grease, and flux in preparation for painting, anodizing,
welding, or other processes requiring a clean surface.
     Producing a desired matte or decorative finish.
    Abrasive blasting systems generally include an abrasive container
or blasting pot, a propelling device, and an abrasive blasting nozzle.
The three main propelling methods are air pressure, water pressure, and
centrifugal force provided by the use of wheels. Air blasting systems
use compressed air to propel the abrasive (dry blasting), water
blasting systems use either compressed air (wet blasting) or high
pressure water (hydroblasting), and centrifugal wheel systems use
centrifugal and inertial forces (EPA, 1997, Document ID 0784).
    Abrasive blasting can generate large quantities of dust that
contains a variety of metals and toxic air contaminants. Workers can
have exposures to multiple air contaminants from both the abrasive and
the surface being blasted. The source of the air contaminants includes
the base material being blasted, the surface coating(s) being removed,
the abrasive being used, and any abrasive contamination from previous
blasting operations (Burgess 1991, Document ID 0907). Potential air
contaminants that might be associated with abrasive blasting and their
sources are listed in Table IV.65 in Chapter IV of the FEA in support
of the new beryllium standards.
Abrasives
    A number of different types of abrasives containing beryllium in
trace amounts can be used for blasting media depending on the
application. The most commonly used abrasives in the construction
industry (e.g., to etch the surfaces of outdoor structures, such as
bridges, prior to painting) include coal slag and steel grit (Meeker et
al., 2006, Document ID 0698). Copper slag produced as by-product at
copper smelters can also be used as an abrasive. Shipyards are large
users of mineral slag abrasives. In a survey of 26 U.S. shipyards and
boatyards about abrasive media usage conducted for the Navy, the use of
coal slag abrasives accounted for 68 percent and copper slag accounted
for 20 percent (NSRP, 1999, Document ID 0767). Workers who perform
abrasive blasting using either coal or copper slag abrasives are
potentially exposed to beryllium (Greskevitch, 2000, Document ID 0701).
OSHA requests updates on this assessment of commonly used abrasive
blasting media in construction and shipyards.
Affected Job Categories
    Abrasive blasting is mainly used in construction and shipyard
operations by painting contractors and welders. (NIOSH, 1976, Document
ID 0779).
    The primary abrasive blasting job categories in construction and
shipyards include the abrasive blasting operator (blaster) and the pot
tender. Support personnel (cleanup helper) might also be employed to
clean up (e.g., by vacuuming or sweeping) and recycle spent abrasive,
and to set up, dismantle, and move containment systems and supplies
(NIOSH, 1995, Document ID 0773).
    As explained in its 2016 FEA, OSHA estimated that 80 percent of all
shipyard blasting operations and 75 percent of construction blasting
operations generate potential beryllium exposures.

OSHA has maintained the same assumption here and invites comment on
these estimates.
    As was estimated in OSHA's industry profile for the 2016 FEA, for
this PEA OSHA estimated there was one pot tender for each at-risk
abrasive blaster and one abrasive media cleanup worker for every two
abrasive blasters. The Agency invites comment on these estimates.
Final Estimate of Populations at Risk in Abrasive Blasting
    In the 2016 FEA, OSHA developed final estimates of the numbers of
workers who perform abrasive blasting. These at-risk populations
include workers in the construction sector engaged in blasting building
exteriors or blasting ancillary to painting of bridges, tunnels, and
related highways; ships; and other non-building construction. Shipyard
workers might perform blasting as part of ship surface cleaning and
preparation prior to painting or other surface coating. In the 2016
FEA, based on the BLS description of broad occupational
classifications, OSHA's estimates grouped these workers in the
categories ``painters, construction, and maintenance'' or ``painters,
transportation equipment.'' \3\ The same grouping is applied in this
PEA.
---------------------------------------------------------------------------

    \3\ In the Bureau of Labor Statistics' Occupational Outlook
Handbook (BLS, 2017b), the description of the duties of construction
and maintenance painters includes the following: A few painters--
mainly industrial--use special safety equipment. For example,
painting in confined spaces, such as the inside of a large storage
tank, requires workers to wear self-contained suits to avoid
inhaling toxic fumes. On some projects they may operate abrasive
blasters to remove old coatings, which may require the use of
additional clothing and protective eyewear. (See https://www.bls.gov/ooh/construction-and-extraction/painters-construction-and-maintenance.htm#tab-2, accessed April 5, 2017.)
---------------------------------------------------------------------------

    Below in Tables V-1 and V-2, OSHA presents its estimate of affected
blasters and blasting support personnel in construction and shipyards;
this estimate, reported in the 2016 FEA, is now the Agency's
preliminary estimate for this NPRM. OSHA requests public comment on the
estimate as well as the methodology, described in Chapter III of the
2016 FEA, for estimating affected abrasive blasters and abrasive
blasting support personnel in construction and shipyards.

  Table V-1--Preliminary Profile of Establishments and Employees in Abrasive Blasting-Construction Affected by
                                OSHA's Proposed Deregulatory Action on Beryllium
----------------------------------------------------------------------------------------------------------------
                               Industry/job                                          Affected        Affected
          NAICS                  category        Establishments     Employees     establishments     employees
----------------------------------------------------------------------------------------------------------------
238320...................  Painting and Wall             31,376         163,073            1,090           4,360
                            Covering
                            Contractors.
                           Abrasive Blaster...  ...............  ..............  ...............           1,744
                           Pot Tender.........  ...............  ..............  ...............           1,744
                           Cleanup............  ...............  ..............  ...............             872
238990...................  All Other Specialty           29,072         193,631            1,010           4,040
                            Trade Contractors.
                           Abrasive Blaster...  ...............  ..............  ...............           1,616
                           Pot Tender.........  ...............  ..............  ...............           1,616
                           Cleanup............  ...............  ..............  ...............             808
                                               -----------------------------------------------------------------
    Total................  ...................           60,448         356,704            2,100           8,400
----------------------------------------------------------------------------------------------------------------
Note: Data in columns may not sum to totals due to rounding.
Sources: U.S. Census Bureau, 2014; US DOL, Directorate of Standards and Guidance, Office of Regulatory Analysis
  (2017).

Table V-2--Preliminary Profile of Establishments and Employees in Abrasive Blasting-Shipyards Affected by OSHA's
                                    Proposed Deregulatory Action on Beryllium
----------------------------------------------------------------------------------------------------------------
                                                                                Affected        Affected
          NAICS                  Industry        Establishments     Employees     establishments     employees
----------------------------------------------------------------------------------------------------------------
336611a..................  Ship Building and                689         108,311              689           3,060
                            Repairing.
                           Abrasive Blaster...  ...............  ..............  ...............           1,224
                           Pot Tender.........  ...............  ..............  ...............           1,224
                           Cleanup............  ...............  ..............  ...............             612
                                               -----------------------------------------------------------------
    Total................  ...................              689         108,311              689           3,060
----------------------------------------------------------------------------------------------------------------
Note: Data in columns may not sum to totals due to rounding.
Sources: U.S. Census Bureau, 2014; US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory
  Analysis (2017).

Welding
    Beryllium exposures can occur in arc and gas welding operations
when welding on base materials containing beryllium and when using
equipment with electrodes that include beryllium (hereafter generally
referred to simply as ``welding''). Note that ``gas welding'' in this
context also involves use of electrodes; the gas used is to protect the
weld from the atmosphere.
    Beryllium exposures during welding are not common and, when
observed, are low (see Chapter IV: Section 10 of the 2016 FEA in
support of the new beryllium standards for an extended discussion of
welding). For this preliminary profile, only arc and gas welding would
be affected by the proposed deregulatory action.\4\
---------------------------------------------------------------------------

    \4\ The other common type of welding, resistance welding, does
not typically generate beryllium exposure.
---------------------------------------------------------------------------

    The principal area of welding exposures is among workers welding
beryllium or beryllium-alloy products (see Chapter IV: Section 10 of
the FEA in support of the new beryllium standards).
Welding in Shipyards
    In its 2016 FEA, OSHA included NAICS 336611: Ship Building and
Repairing, in the set of industries in the Welding application group
affected by the final rule. The number of establishments and employees
in this shipyard industry affected by the final

rule, and therefore affected by this proposal, is displayed in Table V-
3. As shown in the table, based on 2015 BLS Occupational Employment
Statistics data, OSHA estimates that 28 percent of establishments in
NAICS 336611: Ship Building and Repairing conduct arc and gas welding.
Based on analysis by ERG of customer summary data submitted in a
comment by Materion, OSHA further estimates that 3.4 percent of these
establishments weld beryllium or beryllium alloy products (ERG, 2015,
Document ID 0385, Workbook #8; Kolanz, 2001, Document ID 0091).
    OSHA requests public comment on the estimates shown in Table V-3.

             Table V-3--Preliminary Profile of Establishments and Employees in Shipyards (Ship Building and Repairing) Affected by OSHA's Proposed Deregulatory Action on Beryllium
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Percent of                                             Number of
                                                                          Total                          establishments                     All employees in       welding      Welders  working
            NAICS code                       Industry \a\            establishments   Total  employees   conducting arc        Welding           welding       establishments     on  beryllium
                                                                           \b\               \b\        and gas  welding   establishments    establishments   using  beryllium     alloys \f\
                                                                                \c\                                 \d\               \e\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611b..........................  Ship Building and Repairing....            689.0         108,311.0               28%             192.9          30,327.1               6.6              26.4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: U.S. Census Bureau, 2014; BLS, 2016; US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (2017).
\a\ Based on industries with the largest number of positive beryllium samples for welders in the IMIS database (OSHA, 2004). These industries account for over 60 percent of the positive
  general industry samples for welders.
\b\ U.S. Census Bureau, 2014.
\c\ BLS, 2016.
\d\ Based on average industry size.
\e\ Estimated as the total number of establishments in the industry (689), multiplied by the percentage of establishments employing welders (28%), and further multiplied by the percentage of
  establishments welding on beryllium alloys (3.4 percent). (Kolanz, 2001, Document ID 0091).
\f\ Based on an ERG estimate of 500 establishments with an average of 4 workers that perform welding on beryllium alloys, or 2.4 percent of establishments with welding. The ERG estimate was
  derived from Brush Wellman Inc. data reporting approximately 2,000 welders performing welding on beryllium alloys (Kolanz, 2001, Document ID 0091).

Summary of Affected Establishments and Employers
    As shown in Table V-4, OSHA estimates that a total of 11,486
workers in 2,796 establishments will be affected by this proposal. Also
shown are the estimated annual revenues for these entities. Table V-5
presents the Agency's preliminary estimate of affected entities defined
as small by the Small Business Administration (SBA); Table V-6 presents
OSHA's preliminary estimate of affected establishments and employees by
NAICS industries for the subset of small entities with fewer than 20
employees.\5\ For the tables showing the characteristics of small and
very small entities, OSHA generally assumed that beryllium-using small
entities and very small entities would be the same proportion of
overall small and very small entities as the proportion of beryllium-
using entities to all entities as a whole in a NAICS industry.
---------------------------------------------------------------------------

    \5\ Tables V-5 and V-6 indicate that small entities affected by
the proposed rule contain 2,714 affected establishments affiliated
with entities that are small by SBA standards and 2,365 affected
establishments affiliated with entities that employ fewer than 20
employees.
    However, the small and very small entity figures in Tables V-5
and V-6 were not used to prepare the cost savings estimates in
Section D of this PEA. For costing purposes in Section D, OSHA
included small establishments owned by larger entities in the
figures in Tables V-5 and V-6 because such establishments do not
qualify as ``small entities'' for the purposes of a Regulatory
Flexibility Analysis. To see the difference in the number of
affected establishments by size for costing purpose, consider the
example of a ``large entity'' with 500 employees, consisting of 50
ten-employee establishments. In Section B., each of these 50
establishments would be excluded from Tables V-5 and V-6 because
they are part of a ``large entity''; in Section D., where all
establishments are included because there is no filter for entity
size, each would be considered a small establishment.
    Thus, for purposes of Section D., there are 2,399 affected
establishments with fewer than 20 employees, 369 affected
establishments with between 20 and 499 employees, and 28
establishments with more than 500 employees; these estimates were
derived in the cost spreadsheet by NAICS industry and in total (see,
for example, Columns TK through TM in the ``Rule'' tab as developed
for familiarization cost savings; the totals are in cells TK5
through TM5) (OSHA, 2017). While not shown in the tables or used in
the analysis, Census (2015) Statistics of US Businesses data suggest
there are also a total of 3,464 establishments affiliated with
entities in construction and shipyards employing between 20 and 499
employees, of which approximately 157 would be affected by the rule.
---------------------------------------------------------------------------

    OSHA requests public comment on the profile data presented in
Tables V-4, V-5, and V-6.

                                      Table V-4--Characteristics of Industries Affected by OSHA's Proposed Deregulatory Action for Beryllium--All Entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Total
                                                                        Total         Total          Total      Affected      Affected       Affected     revenues    Revenues/      Revenues/
        Application group             NAICS            Industry        entities   establishments   employees    entities   establishments   employees     ($1,000)      entity     establishment
                                                                         \a\           \a\            \a\         \b\           \b\            \b\          \a\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction.  238320.......  Painting and Wall     31,317.0         31,376.0    163,073.0    1,088.0          1,090.0      4,360.0  $19,595,278     $625,707        $624,531
                                                  Covering
                                                  Contractors.
Abrasive Blasting--Construction.  238990.......  All Other Specialty   28,734.0         29,072.0    193,631.0      998.3          1,010.0      4,040.0   39,396,242    1,371,067       1,355,127
                                                  Trade Contractors.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Abrasive Blasting--Shipyards *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards....  336611a......  Ship Building and        604.0            689.0    108,311.0      604.0            689.0      3,060.0   26,136,187   43,271,832      37,933,508
                                                  Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Welding in Shipyards **
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards............  336611b......  Ship Building and        604.0            689.0    108,311.0        5.8              6.6         26.4   26,136,187   43,271,832      37,933,508
                                                  Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                                Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal...........  .............  ...................   60,051.0         60,448.0    356,704.0    2,086.2          2,100.0      8,400.0   58,991,519      982,357         975,905
Shipyard Subtotal...............  .............  ...................    1,208.0          1,378.0    216,622.0      609.8            695.6      3,086.4   52,272,373   43,271,832      37,933,508
                                                                     ---------------------------------------------------------------------------------------------------------------------------
Total, All Industries...........  .............  ...................   61,259.0         61,826.0    573,326.0    2,696.0          2,795.6     11,486.4  111,263,893    1,816,286       1,799,629
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ U.S. Census Bureau, Statistics of U.S. Businesses: 2012, Document ID 2034.
\b\ OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the
  number of affected employees. Within each NAICS industry, the number of affected entities was calculated as the product of total number of entities for that industry and the ratio of the
  number of affected establishments to the number of total establishments.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.

                                                                Table V-5--Characteristics of Industries Affected by OSHA's Final Standard for Beryllium--Small Entities
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                SBA small                                                  Affected                      Affected
                                                                                business         Small      Establishments     Small        small      Affected small   employees   Total revenues    Revenues    Revenues per
          Application group                   NAICS                 Industry          classification    business       for small        entity      business    establishments   for small      for small     per small   small business
                                                                                (employees)   entities \b\    entities \b\    employees     entities         \c\          entities      entities        entity     establishment
                                                                                \a\                                          \b\          \c\                           \c\       ($1,000) \b\
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Abrasive Blasting--Construction
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction......  238320.............  Painting and Wall                   100       31,221.0         31,243.0    133,864.0      1,084.6          1,085.4      3,579.1     $16,552,251     $530,164        $529,791
                                                             Covering Contractors.
Abrasive Blasting--Construction......  238990.............  All Other Specialty                 100       28,537.0         28,605.0    143,112.0        991.4            993.8      2,985.9      29,789,492    1,043,890       1,041,409
                                                             Trade Contractors.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Abrasive Blasting--Shipyards *
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards.........  336611a............  Ship Building and                 1,250          585.0            629.0     27,170.0        585.0            629.0          960       6,043,893   10,331,440       9,608,732
                                                             Repairing.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Welding in Shipyards **
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards.................  336611b............  Ship Building and                 1,250          585.0            629.0     27,170.0          5.6              6.0          6.6       6,043,893   10,331,440       9,608,732
                                                             Repairing.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Total
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal................  ...................  ........................  ..............      59,758.0         59,848.0    276,976.0      2,076.0          2,079.2      6,565.0      46,341,743      775,490         774,324
Shipyard Subtotal....................  ...................  ........................  ..............       1,170.0          1,258.0     54,340.0        590.6            635.0        774.2      12,087,785   10,331,440       9,608,732
                                                                                ---------------------------------------------------------------------------------------------------------------------------------------------------
Total, All Industries................  ...................  ........................  ..............      60,928.0         61,106.0    331,316.0      2,666.6          2,714.2      7,339.2      58,429,529      958,993         956,200
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Data may not sum to totals due to rounding.
\a\ SBA Size Standards, 2016 (Document ID 2026). Data were not available specifically for small entities with more than 500 employees. For SBA small business classifications specifying 750 or more employees, OSHA used data for all
  entities in the industry.
\b\ U.S. Census Bureau, Statistics of US Businesses: 2012 (Document ID 2034).
\c\ OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the number of affected employees.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.

                                 Table V-6--Characteristics of Industries Affected by OSHA's Final Standard for Beryllium--Entities With Fewer Than 20 Employees
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Affected
                                                                                Employees     Affected      Affected      employees   Total revenues               Revenue per
                                                                      Entities   Establishments      for        entities   establishments      for       for entities     Revenues    estab. for
       Application group             NAICS           Industry         with <20    for entities     entities     with <20    for entities     entities      with <20      per entity    entities
                                                                     employees      with <20       with <20    employees      with <20       with <20      employees      with <20     with <20
                                                                        \a\       employees \a\   employees       \b\       employees \b\   employees    ($1,000) \a\    employees    employees
                                                                                \a\                                       \b\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Construction  238320.......  Painting and Wall      29,953.0       29,957.0      87,984.0      1,040.6        1,040.7       2,352.4     $10,632,006     $354,956     $354,909
                                                 Covering
                                                 Contractors.
Abrasive Blasting--Construction  238990.......  All Other              27,026.0       27,041.0      90,822.0        938.9          939.4       1,894.9      19,232,052      711,613      711,218
                                                 Specialty Trade
                                                 Contractors.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Abrasive Blasting--Shipyards *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blasting--Shipyards...  336611a......  Ship Building and         380.0          381.0       2,215.0        380.0          381.0         381.0         547,749    1,441,445    1,437,661
                                                 Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Welding in Shipyards **
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welding in Shipyards...........  336611b......  Ship Building and         380.0          381.0       2,215.0          3.6            3.6           3.6         547,749    1,441,445    1,437,661
                                                 Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal..........  .............  ..................     56,979.0       56,998.0     178,806.0      1,979.5        1,980.1       4,247.3      29,864,058      524,124      523,949
Shipyard Subtotal..............  .............  ..................        760.0          762.0       4,430.0        383.6          384.6         384.6       1,095,498    1,441,445    1,437,661
                                                                   -----------------------------------------------------------------------------------------------------------------------------
Total, All Industries..........  .............  ..................     57,739.0       57,760.0     183,236.0      2,363.1        2,364.8       4,632.0      30,959,556      536,198      536,003
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Data may not sum to totals due to rounding.
\a\ U.S. Census Bureau, Statistics of US Businesses: 2012 (Document ID 2034).
\b\ OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the
  number of affected employees.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis.

Beryllium Exposure Profile of At-Risk Workers
    The exposure profiles for abrasive blasting presented here were
taken directly from Chapter IV of the 2016 FEA, and are more fully
summarized in Section IV of this preamble. The exposure profile for
welding in shipyards, however, is based on data presented in appendices
2 and 3 of Section 10.6 of Chapter IV, and again is more fully
summarized in Section IV. Those data measure exposures of shipyard
based welders, and OSHA has preliminarily determined that it is a more
suitable data set on which to base the exposure profile of welders in
shipyards than the data used in the 2016 FEA, which were based on
general industry welding exposures.\6\ Exposure profiles, by job
category, were developed from individual exposure measurements that
were judged to be substantial and to contain sufficient accompanying
description to allow interpretation of the circumstances of each
measurement. The resulting exposure profiles show the job categories
with current exposures to beryllium above the new PEL and, thus, the
workers for whom beryllium controls would be implemented under the
final beryllium standard.
---------------------------------------------------------------------------

    \6\ The use of the general industry exposure profile for
shipyard welders was inadvertent, and the differences between the
exposure monitoring data from the general industry and these welding
data are not significantly different (e.g., the exposure data for
the shipyard welders show 94.8 percent of the exposures occurring
below 0.1 ug/m\3\, while the general industry estimates show 56.8
percent of the exposures occurring below 0.1 ug/m\3\) and do not
materially change the exposure assessment assumptions.
---------------------------------------------------------------------------

    Tables V-7 and V-8 summarize, from the exposure profiles, the
number of workers at risk of beryllium exposure and the distribution of
8-hour TWA beryllium exposures by affected application group and job
category. Exposures are grouped into ranges (e.g., >0.05 [mu]g/m\3\ and
<0.1 [mu]g/m\3\) that represent the percentages of employees in each
job category and sector currently exposed at levels within the
indicated range.
    Table V-9 presents data by NAICS code on the estimated number of
workers currently at risk of beryllium exposure for each of the same
exposure ranges. As shown, an estimated 2,167 (after rounding) workers
currently have beryllium exposures above the final PEL of 0.2 [mu]g/
m\3\. OSHA requests public comment on the exposure profile shown in
Tables V-7, V-8, and V-9.

                                                Table V-7--Distribution of Beryllium Exposures by Application Group and Job Category or Activity
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Exposure range  ([micro]g/m\3\)
                                                       -----------------------------------------------------------------------------------------------------------------------------------------
                 Job category/activity                   0 to <=0.0.5   >0.05 to <=0.1   >0.1 to <=0.2  >0.2 to <=0.25  >0.25 to <=0.5   >0.5 to <=1.0   >1.0 to <=2.0
                                                            \a\ (%)         \a\ (%)           (%)             (%)             (%)             (%)             (%)         >2.0 (%)    Total (%)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Abrasive Blasting--Construction & Shipyards *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blaster......................................            15.2            15.2            25.7             2.5            12.4             4.7             5.4         18.9        100.0
Pot Tender............................................            28.1            28.1            43.8             0.0             0.0             0.0             0.0          0.0        100.0
Cleanup...............................................            33.3            33.3            26.7             0.0             0.0             0.0             3.3          3.3        100.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Welding--Shipyards **
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welder................................................            47.4            47.4             1.5             0.0             0.0             3.0             0.7          0.0        100.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Data may not sum to totals due to rounding.

\a\ The lowest exposure range in OSHA's technological feasibility analysis is <=0.1 [micro]g/m\3\ (see Chapter IV-02, Limits of Detection for Beryllium Data, in the FEA (Document ID 2042) in
  support of the new beryllium standards). Because OSHA lacked information on the distribution of worker exposures in this range, the Agency evenly divided the workforce exposed at or below
  0.1 [micro]g/m\3\ into the two categories shown in this table and in the columns with identical headers in Tables V-8 and V-9. OSHA recognizes that this simplifying assumption may
  overestimate exposure in these lower exposure ranges; the Agency requests comment as to whether members of the public share this observation.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility.

                                        Table V-8--Number of Workers Exposed to Beryllium by Affected Application Group, Job Category, and Exposure Range
                                                                                [[micro]g/m\3\]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Exposure level  ([micro]g/m\3\)
           Application group/job category           --------------------------------------------------------------------------------------------------------------------------------------------
                                                       0 to <=0.05    >0.05 to <=0.1   >0.1 to <=0.2   >0.2 to <=0.25   >0.25 to <=0.5   >0.5 to <=1.0   >1.0 to <=2.0      >2.0        Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blaster...................................           510.8            510.8           862.7             83.2            416.2           158.9           181.6        635.7      3,360.0
Pot Tender.........................................           945.0            945.0         1,470.0              0.0              0.0             0.0             0.0          0.0      3,360.0
Cleanup............................................           560.0            560.0           448.0              0.0              0.0             0.0            56.0         56.0      1,680.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Abrasive Blasting--Shipyards *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Abrasive Blaster...................................           186.1            186.1           314.3             30.3            151.6            57.9            66.2        231.6      1,224.0
Pot Tender.........................................           344.3            344.3           535.5              0.0              0.0             0.0             0.0          0.0      1,224.0
Cleanup............................................           204.0            204.0           163.2              0.0              0.0             0.0            20.4         20.4        612.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Welding--Shipyards **
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Welder.............................................            12.5             12.5             0.4              0.0              0.0             0.8             0.2          0.0         26.4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Construction Subtotal..............................         2,015.8          2,015.8         2,780.7             83.2            416.2           158.9           237.6        691.7      8,400.0
Shipyard Subtotal..................................           746.8            746.8         1,013.4             30.3            151.6            58.7            86.8        252.0      3,086.4
                                                    --------------------------------------------------------------------------------------------------------------------------------------------
Total, All Industries..............................         2,762.7          2,762.7         3,794.1            113.6            567.8           217.6           324.4        943.6     11,486.4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Data may not sum to totals due to rounding.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Sources: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility and Office of Regulatory Analysis-Health.

                                                    Table V-9--Number of Workers Exposed to Beryllium by Affected Industry and Exposure Range
                                                                                [[micro]g/m\3\]
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                                                                                Exposure level  ([micro]g/m\3\)
      Application group/NAICS               Industry       -------------------------------------------------------------------------------------------------------------------------------------
                                                              0 to <=0.05   >0.05 to <=0.1   >0.1 to <=0.2  >0.2 to <=0.25  >0.25 to <=0.5   >0.5 to <=1.0   >1.0 to <=2.0     >2.0      Total
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                                                                                Abrasive Blasting--Construction
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
238320.............................  Painting and Wall             1,046.3         1,046.3         1,443.3            43.2           216.0            82.5           123.3      359.0    4,360.0
                                      Covering Contractors.
238990.............................  All Other Specialty             969.5           969.5         1,337.4            40.0           200.2            76.4           114.3      332.7    4,040.0
                                      Trade Contractors.
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                                                                                Abrasive Blasting--Shipyards *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
336611a............................  Ship Building and               734.3           734.3         1,013.0            30.3           151.6            57.9            86.6      252.0    3,060.0
                                      Repairing.
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                                                                                Welding in Shipyards **
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336611b............................  Ship Building and                12.5            12.5             0.4             0.0             0.0             0.8             0.2        0.0       26.4
                                      Repairing.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Total
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Construction Subtotal..............  .....................         2,015.8         2,015.8         2,780.7            83.2           416.2           158.9           237.6      691.7    8,400.0
Shipyard Subtotal..................  .....................           746.8           746.8         1,013.4            30.3           151.6            58.7            86.8      252.0    3,086.4
                                                           -------------------------------------------------------------------------------------------------------------------------------------
Total, All Industries..............  .....................         2,762.7         2,762.7         3,794.1           113.6           567.8           217.6           324.4      943.6   11,486.4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Data may not sum to totals due to rounding.
* Employers in application group Abrasive Blasting--Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships.
** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting.
Sources: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility and Office of Regulatory Analysis-Health.

Loaded Wages and New Hire Rate
    For this PEA, OSHA updated the 2016 FEA wage estimates from 2015 to
2016 levels using data for base wages by Standard Occupational
Classification (SOC) from the March 2017 Occupational Employment
Statistics survey of the Bureau of Labor Statistics. OSHA applied a
fringe markup (loading factor) of 46.0 percent of base wages (BLS,
2016c, Document ID 1980); \7\ loaded hourly wages by application group
and SOC are shown in Table V-10.
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    \7\ A fringe markup (loading factor) of 46.0 percent was
calculated in the following way. Employer costs for employee
compensation for civilian workers averaged $33.94 per hour worked in
March 2016. Wages and salaries averaged $23.25 per hour worked and
accounted for 68.5 percent of these costs, while benefits averaged
$10.70 and accounted for the remaining 31.5 percent. Therefore, the
fringe markup (loading factor) is $10.70/$23.25, or 45.6 percent.
Total employer compensation costs for private industry workers
averaged $32.06 per hour worked in March 2016 (BLS, 2016c, Document
ID 1980).
---------------------------------------------------------------------------

    OSHA also updated the new hire rate for manufacturing from its 2016
FEA

estimate of 27.2 percent to a final estimate of 23.9 percent (BLS,
2016b, Document ID 1977). The Agency applied the updated rate (23.9
percent) in this preliminary profile and requests public comment on the
preliminary wage and hire rates shown in Table V-10.
Baseline Industry Practices and Existing Regulatory Requirements
(``Current Compliance'') On Hazard Controls and Ancillary Provisions
    Table V-11 reflects OSHA's estimate of current industry compliance
rates, by application group and job category, for each of the ancillary
provisions that, under the January 9, 2017 final rule, would affect the
establishments that are subject to this preliminary deregulatory
action. See Chapter III of the 2016 FEA for additional discussion of
the current baseline compliance rates for each provision, which were
estimated based on site visits, industry contacts, published
literature, and the Final Report of the Small Business Advocacy Review
(SBAR) Panel (SBAR, 2008, Document ID 0345). Note that the compliance
rate is typically the same for all jobs in a given sector, except for
administrative workers, who generally have zero percent compliance with
hygiene requirements and 100 percent compliance with PPE (because they
are not expected to need PPE during work assignments).
    In the 2016 FEA, OSHA estimated that abrasive blasters in
construction and shipyards had a 75 percent compliance rate with the
PPE requirements in the beryllium standards. However, upon further
review of existing OSHA standards, OSHA is revising that estimate to
100 percent compliance for the purpose of this preliminary economic
analysis. In construction, OSHA standard 29 CFR 1926.57(f)(5)(v)
requires abrasive blasting operators to wear full PPE, including
respirators, gloves, safety shoes, and eye protection. Similarly, 29
CFR 1915.34(c)(3) requires full PPE for abrasive blaster operators
performing mechanical paint removal in shipyards. Because it would not
be appropriate to claim cost savings for withdrawing a rule when
existing rules already have the same requirements, for the purpose of
calculating cost savings and foregone benefits in this proposal, OSHA
preliminarily estimates that withdrawing the beryllium rule's PPE
requirements for abrasive blaster operators in construction and
shipyards would have no effect on PPE compliance because those workers
are already required to wear full PPE. In addition, OSHA also found,
after a review of shipyard personal protective equipment requirements,
that gloves are required under 1915.157(a) to protect workers from
hazards faced by welders, such as thermal burns.\8\ Therefore, for the
purpose of calculating cost savings and foregone benefits in this
proposal, the Agency now preliminarily estimates that abrasive blasting
operators in shipyards and construction and welders in shipyards are
already equipped with full personal protective equipment 100 percent of
the time when exposed to beryllium.
---------------------------------------------------------------------------

    \8\ In fact, the 0 percent baseline compliance rate for PPE in
shipyard welding in the 2016 FEA was simply a mistake insofar as
baseline compliance rate for PPE in general industry was 100 percent
in the same document. For a discussion of existing welding
requirements, see the discussion in Section V.C, Costs, in this
preamble.
---------------------------------------------------------------------------

    Additionally, upon review, OSHA has preliminarily determined that
relevant PPE is required by the existing Personal Protective Equipment
standard (1926.95) and the existing Hand and Body Protection standard
(1915.157) to protect blasting helpers in construction and shipyards,
respectively, from dermal exposure to beryllium dust. Therefore, the
Agency now preliminarily estimates that all affected employees are
already required to be equipped with PPE 100 percent of the time when
exposed to beryllium, and uses this preliminary determination in
calculating proposed cost savings and foregone benefits.
    OSHA requests public comment on this revised approach and on the
other preliminary baseline compliance estimates shown in Table V-11, as
well as the methodology behind them as set forth in Chapter III of the
2016 FEA.
    OSHA also reviewed existing housekeeping requirements and found
that some housekeeping is also already required for abrasive blasting
operations in construction and shipyards. CFR 1926.57(f)(7) requires
that dust not be allowed to accumulate and that spills be cleaned up
promptly. The general industry Ventilation standard requires the same
in abrasive blasting in shipyards (see 29 CFR 1910.94(a)(7),
1910.5(c)). 29 CFR 1926.57(f)(3) and (f)(4) also require exhaust
ventilation and dust collection and removal systems in abrasive
blasting operations in construction. Therefore, compliance with
1926.57(f) and 1910.94(a)(7) already ensures that employers take some
steps during the blasting operations to prevent accumulations of dust
sufficient to create exposures exceeding the PEL in clean-up after
blasting operations are completed.\9\ For these reasons, in this
proposal, OSHA is only taking a cost savings for housekeeping in
abrasive blasting operations in construction and shipyards for the cost
of HEPA-filtered vacuums and similar equipment.