other exposures below the proposed PELs will result in very real and
necessary, but difficult to quantify, further reduction in risk beyond
that provided by the PELs alone.
    The remainder of this section discusses additional regulatory
alternatives that apply to individual

ancillary provisions. At this time, OSHA is not able to quantify the
effects of these regulatory alternatives on benefits. The Agency
solicits comment on the effects of these regulatory alternatives on the
benefits of the proposed rule.
(b) Regulated Areas
    Proposed paragraph (e) requires employers to establish and maintain
beryllium work areas wherever employees are exposed to airborne
beryllium, regardless of the level of exposure, and regulated areas
wherever airborne concentrations of beryllium exceed the TWA PEL or
STEL. Employers are required to demarcate beryllium work areas and
regulated areas and limit access to regulated areas to authorized
persons.
    The SBAR Panel report recommended that OSHA consider dropping or
limiting the provision for regulated areas (SBAR, 2008). In response to
this recommendation, OSHA examined Regulatory Alternative #12, which
would eliminate the requirement that employers establish regulated
areas. This alternative is meant only to eliminate the requirement to
set up and demarcate specific physical areas: All ancillary provisions
would be triggered by the same conditions as under the standard's
definition of a ``regulated area.'' For example, under the current
proposal, employees who work in regulated areas for at least 30 days
annually are eligible for medical surveillance. If OSHA were to remove
the requirement to establish regulated areas, the medical surveillance
provisions would be altered so that employees who work more than 30
days annually in jobs or areas with exposures that exceed the TWA PEL
or STEL are eligible for medical surveillance. This alternative would
not eliminate the proposed requirement to establish beryllium work
areas. As shown in Table IX-27, Regulatory Alternative #12 would
decrease the annualized cost of the proposed rule by about $522,000
using a 3 percent discount rate, and by about $523,000 using a 7
percent discount rate.
(e) Medical Surveillance
    The proposed requirements for medical surveillance include: (1)
Medical examinations, including a test for beryllium sensitization, for
employees who are exposed to beryllium in a regulated area (i.e., above
the proposed TWA PEL or STEL) for 30 days or more per year, who are
exposed to beryllium in an emergency, or who show signs or symptoms of
CBD; and (2) CT scans for employees who were exposed above the proposed
TWA PEL or STEL for more than 30 days in a 12-month period for 5 years
or more. The proposed standard would require annual medical exams to be
provided for employees exposed in a regulated area for 30 days or more
per year and for employees showing signs or symptoms of CBD, while
tests for beryllium sensitization and CT scans would be provided to
eligible employees biennially.
    OSHA estimated in Chapter V of the PEA that the medical
surveillance requirements would apply to 4,528 workers in general
industry, of whom 387 already receive that surveillance.\44\ In Chapter
V, OSHA estimated the costs of medical surveillance for the remaining
4,141 workers who would now have such protection due to the proposed
standard. The Agency's preliminary analysis indicates that four workers
with beryllium sensitization and six workers with CBD will be referred
to pulmonary specialists annually as a result of this medical
surveillance. Medical surveillance is particularly important for this
rule because beryllium-exposed workers, including many workers exposed
below the proposed PELs, are at significant risk of illness. OSHA did
not estimate, and the benefits analysis does not include, monetized
benefits resulting from early discovery of illness.
---------------------------------------------------------------------------

    \44\ See current compliance rates for medical surveillance in
Chapter V of the PEA, Table V-15.
---------------------------------------------------------------------------

    Medical surveillance was a subject of special concern to SERs
during the SBAR Panel process, and the SBAR Panel offered many comments
and recommendations related to medical surveillance for OSHA's
consideration. Some of the Panel's concerns have been partially
addressed in this proposal, which was modified since the SBAR Panel was
convened (see this preamble at Section XVIII, Summary and Explanation
of the Proposed Standard, for more detailed discussion). The regulatory
alternatives presented in this sub-section (#16, #18, and #20) also
respond to recommendations by the SBAR Panel to reduce burdens on small
businesses by dropping or reducing the frequency of medical
surveillance requirements. OSHA has preliminarily determined that a
significant risk of beryllium sensitization, CBD, and lung cancer
exists at exposure levels below the proposed TWA PEL and that there is
evidence that beryllium sensitization can occur even from short-term
exposures (see this preamble at Section V, Health Effects, and Section
VIII, Significance of Risk). The Agency therefore anticipates that more
employees would develop adverse health effects without receiving the
benefits of early intervention in the disease process because they are
not eligible for medical surveillance (see this preamble at Section V,
Health Effects).
    In response to concerns raised during the SBAR Panel process about
testing requirements, OSHA is considering two regulatory alternatives
that would provide greater flexibility in the program of tests provided
as part of an employer's medical surveillance program. Under Regulatory
Alternative #16, employers would not be required to offer employees
testing for beryllium sensitization. As shown in Table IX-27, this
alternative would decrease the annualized cost of the proposed rule by
about $710,000 using a discount rate of 3 percent, and by about
$724,000 using a discount rate of 7 percent.
    Regulatory Alternative #18 would eliminate the CT scan requirement
from the proposed rule. This alternative would decrease the annualized
cost of the proposed rule by about $472,000 using a discount rate of 3
percent, and by about $481,000 using a discount rate of 7 percent.
    OSHA is considering several alternatives to the proposed frequency
of sensitization testing, CT scans, and general medical examinations.
The frequency of periodic medical surveillance is an important factor
in the efficacy of the surveillance in protecting worker health.
Regular, appropriately frequent medical surveillance promotes awareness
of beryllium-related health effects and early intervention in disease
processes among workers. In addition, the longer the time interval
between when a worker becomes sensitized and when the worker's case is
identified in the surveillance program, the more difficult it will be
to identify and address the exposure conditions that led to
sensitization. Therefore, reducing the frequency of sensitization
testing would reduce the usefulness of the surveillance information in
identifying problem areas and reducing risks to other workers. These
concerns must be weighed against the costs and other burdens of
surveillance.
    Finally, under Regulatory Alternative #20, employers would only
have to provide all periodic components of the medical surveillance
exams biennially to eligible employees. This alternative would decrease
the annualized cost of the proposed rule by about $446,000 using a
discount rate of 3 percent and by about $433,000 using a discount rate
of 7 percent.

(d) Medical Removal
    Under paragraph (l) of the proposed standard, Medical Removal,
employees in jobs with exposure at or above the action level become
eligible for medical removal when they are diagnosed with CBD or
confirmed positive for beryllium sensitization. When an employee
chooses removal, the employer is required to remove the employee to
comparable work in an environment where beryllium exposure is below the
action level if such work is available and the employee is either
already qualified or can be trained within one month. If comparable
work is not available, paragraph (l) would require the employer to
place the employee on paid leave for six months or until comparable
work becomes available (whichever comes first). Or, rather than
choosing removal, an eligible employee could choose to remain in a job
with exposure at or above the action level and wear a respirator. The
proposed medical removal protection (MRP) requirements are based on the
stakeholders' recommended beryllium standard that representatives of
the beryllium production industry and the United Steelworkers union
submitted to OSHA in 2012 (Materion and USW, 2012).
    The scientific information on effects of exposure cessation is
limited at this time, but the available evidence suggests that removal
from exposure can be beneficial for individuals who are sensitized or
have early-stage CBD (see this preamble at Section VIII, Significance
of Risk). As CBD progresses, symptoms become serious and debilitating.
Steroid treatment is less effective at later stages, once fibrosis has
developed (see this preamble at Section VIII, Significance of Risk).
Given the progressive nature of the disease, OSHA believes it is
reasonable to conclude that removal from exposure to beryllium will
benefit sensitized employees and those with CBD. Physicians at National
Jewish Health, one of the main CBD research and treatment sites in the
US, ``consider it important and prudent for individuals with beryllium
sensitization and CBD to minimize their exposure to airborne
beryllium,'' and ``recommend individuals diagnosed with beryllium
sensitization and CBD who continue to work in a beryllium industry to
have exposure of no more than 0.01 micrograms per cubic meter of
beryllium as an 8-hour time-weighted average'' (NJMRC, 2013). However,
OSHA is aware that MRP may prove costly and burdensome for some
employers and that the scientific literature on the effects of exposure
cessation on the development of CBD among sensitized individuals and
the progression from early-stage to late-stage CBD is limited.
    The SBAR Panel report included a recommendation that OSHA give
careful consideration to the impacts that an MRP requirement could have
on small businesses (SBAR, 2008). In response to this recommendation,
OSHA analyzed Regulatory Alternative #22, which would remove the
proposed requirement that employers offer MRP. As shown in Table IX-27,
this alternative would decrease the annualized cost of the proposed
rule by about $149,000 using a discount rate of 3 percent, and by about
$166,000 using a discount rate of 7 percent.

[GRAPHIC] [TIFF OMITTED] TP07AU15.043

(5) Timing
    As proposed, the new standard would become effective 60 days
following publication in the Federal Register. The majority of employer
duties in the standard would become enforceable 90 days following the
effective date. Change rooms, however, would not be required until one
year after the effective date, and the deadline for engineering
controls would be no later than two years after the effective date.
    OSHA invites suggestions for alternative phase-in schedules for
engineering controls, medical surveillance, and other provisions of the
standard. Although OSHA did not explicitly develop or quantitatively
analyze any other regulatory alternatives involving longer-term or more
complex phase-ins of the standard (possibly involving more delayed
implementation dates for small businesses), some general outcomes are
likely. For example, a longer phase-in time would have several
advantages, such as reducing initial costs of the standard or allowing
employers to coordinate their environmental and occupational safety and
health control strategies to minimize potential costs. However, a
longer phase-in would also postpone and reduce the benefits of the
standard. Suggestions for alternatives may apply to specific industries
(e.g., industries where first-year or annualized cost impacts are
highest), specific size-classes of employers (e.g., employers with
fewer than 20 employees), combinations of these factors, or all firms
covered by the rule.
    OSHA requests comments on all these regulatory alternatives,
including the Agency's regulatory alternatives presented above, the
Agency's analysis of these alternatives, and whether there are other
regulatory alternatives the Agency should consider.
SBAR Panel
    Table IX-28 lists all of the SBAR Panel recommendations and OSHA's
response to those recommendations.

       Table IX-28--SBAR Panel Recommendations and OSHA Responses
------------------------------------------------------------------------
          Panel recommendation                    OSHA response
------------------------------------------------------------------------
The Panel recommends that OSHA evaluate  OSHA has reviewed its cost
 carefully the costs and technological    estimates and the
 feasibility of engineering controls at   technological feasibility of
 all PEL options, especially those at     engineering controls at
 the lowest levels.                       various PEL levels. These
                                          issues are discussed in the
                                          Regulatory Alternatives
                                          Chapter of the PEA.
The Panel recommends that OSHA consider  OSHA has removed the initial
 alternatives that would alleviate the    exposure monitoring
 need for monitoring in operations with   requirement for workers likely
 exposures far below the PEL. The Panel   to be exposed to beryllium by
 also recommends that OSHA consider       skin or eye contact through
 explaining more clearly how employers    routine handling of beryllium
 may use ``objective data'' to estimate   powders or dusts or contact
 exposures. Although the draft proposal   with contaminated surfaces.
 contains a provision allowing           The periodic monitoring
 employers to initially estimate          requirement presented in the
 exposures using ``objective data''       SBAR Panel report required
 (e.g., data showing that the action      monitoring every 6 months for
 level is unlikely to be exceeded for     airborne levels at or above
 the kinds of process or operations an    the action level but below the
 employer has), the SERs did not appear   PEL, and every 3 months for
 to have fully understood how this        exposures at or above the PEL.
 alternative may be used.                 The proposed standard requires
                                          annual exposure monitoring for
                                          levels at or above the action
                                          level and at or below the PEL.
                                         By reducing the frequency of
                                          periodic monitoring from every
                                          6 months (version submitted to
                                          the SBAR panel) to annually
                                          where exposure levels are at
                                          or below the PEL (the proposed
                                          standard), the Agency has
                                          lessened the need for
                                          monitoring in small business
                                          operations with exposures at
                                          or below the PEL.
                                         In this preamble, OSHA has
                                          clarified the circumstances
                                          under which an employer may
                                          use historical and objective
                                          data in lieu of initial
                                          monitoring.
                                         OSHA is also considering
                                          whether to create a guidance
                                          product on the use of
                                          objective data. These issues
                                          are discussed in this preamble
                                          at Section XVIII, Summary and
                                          Explanation of the Proposed
                                          Standard, (d): Exposure
                                          Monitoring.
The Panel recommends that OSHA consider  In this preamble, OSHA has
 providing some type of guidance to       clarified the circumstances
 describe how to use objective data to    under which an employer may
 estimate exposures in lieu of            use historical and objective
 conducting personal sampling.            data in lieu of initial
Using objective data could provide        monitoring. OSHA is also
 significant regulatory relief to         considering whether to create
 several industries where airborne        a guidance product on the use
 exposures are currently reported by      of objective data to satisfy
 SERs to be well below even the lowest    the requirements of the
 PEL option. In particular, since         proposed rule.
 several ancillary provisions, which     These issues are discussed in
 may have significant costs for small     this preamble at Section
 entities may be triggered by the PEL     XVIII, Summary and Explanation
 or an action level, OSHA should          of the Proposed Standard, (d):
 consider encouraging and simplifying     Exposure Monitoring.
 the development of objective data from
 a variety of sources.
The Panel recommends that OSHA revisit   SERs with very low exposure
 its analysis of the costs of regulated   levels or only occasional work
 areas if a very low PEL is proposed.     with beryllium will not be
 Drop or limit the provision for          required to have regulated
 regulated areas: SERs with very low      areas unless exposures are
 exposure levels or only occasional       above the proposed PEL of 0.2
 work with beryllium questioned the       [mu]g/m\3\.
 need for separating areas of work by    The proposed standard requires
 exposure level. Segregating machines     the employer to establish and
 or operations, SERs said, would affect   maintain a regulated area
 productivity and flexibility. Until      wherever employees are, or can
 the health risks of beryllium are        be expected to be exposed to
 known in their industries, SERs          airborne beryllium at levels
 challenged the need for regulated        above a PEL of 0.2 [mu]g/m\3\.
 areas.
The Panel recommends that OSHA revisit   The Agency has removed skin
 its cost model for hygiene areas to      exposure as a trigger for the
 reflect SERs' comments that estimated    hygiene provision. The
 costs are too low and more carefully     requirement for washing
 consider the opportunity costs of        facilities applies to each
 using space for hygiene areas where      employee working in a
 SERs report they have no unused space    beryllium work area. A
 in their physical plant for them. The    beryllium work area means any
 Panel also recommends that OSHA          work area where employees are,
 consider more clearly defining the       or can reasonably be expected
 triggers (skin exposure and              to be, exposed to airborne
 contaminated surfaces) for the hygiene   beryllium. OSHA has
 areas provisions. In addition, the       preliminarily concluded that
 Panel recommends that OSHA consider      all affected employers
 alternative requirements for hygiene     currently have hand-washing
 areas dependent on airborne exposure     facilities.
 levels or types of processes. Such      OSHA has also preliminarily
 alternatives might include, for          concluded that no affected
 example, hand washing facilities in      employers will be required to
 lieu of showers in particular cases or   install showers.
 different hygiene area triggers where   Change rooms have only been
 exposure levels are very low.            costed for regulated areas or
                                          where employees are, or can
                                          reasonably be expected to be,
                                          exposed to airborne beryllium
                                          at levels above the PEL. The
                                          Agency has determined that the
                                          long-term rental of modular
                                          units was representative of
                                          costs for a range of
                                          reasonable approaches to
                                          comply with the change room
                                          part of the provision.
                                          Alternatively, employers could
                                          renovate and rearrange their
                                          work areas in order to meet
                                          the requirements of this
                                          provision.

The Panel recommends that OSHA consider  In this preamble, OSHA has
 clearly explaining the purpose of the    clarified the purpose of the
 housekeeping provision and describing    housekeeping provision.
 what affected employers must do to       However, due to the variety of
 achieve it. For example, OSHA should     work settings in which
 consider explaining more specifically    beryllium is used, OSHA has
 what surfaces need to be cleaned and     preliminarily concluded that a
 how frequently they need to be           highly specific directive on
 cleaned. The Panel recommends that the   what surfaces need to be
 Agency consider providing guidance in    cleaned, and how frequently,
 some form so that employers understand   would not provide effective
 what they must do. The Panel also        guidance to businesses.
 recommends that once the requirements    Instead, at the suggestion of
 are clarified that the Agency re-        industry and union
 analyzes its cost estimates.             stakeholders (Materion and
The Panel also recommends that OSHA       USW, 2012), OSHA's proposed
 reconsider whether the risk and cost     standard includes a more
 of all parts of the medical              flexible requirement for
 surveillance provisions are              employers to develop a written
 appropriate where exposure levels are    exposure control plan specific
 very low. In that context, the Panel     to their facilities. The
 recommends that OSHA should also         written exposure control plan
 consider the special problems and        must include documentation of
 costs to small businesses that up        operations and jobs with
 until now may not have had to provide    beryllium exposure and
 or manage the various parts of an        housekeeping procedures,
 occupational health standard or          including surface cleaning and
 program.                                 beryllium migration control.
                                          OSHA requests suggestions for
                                          examples of specific guidance
                                          that could be helpful to
                                          employers preparing written
                                          exposure control plans.
                                         These issues are discussed in
                                          this preamble at Section
                                          XVIII, Summary and Explanation
                                          of the Proposed Standard, (f)
                                          Methods of Compliance and (j)
                                          Housekeeping.
                                         Regulatory Alternative #20
                                          would reduce the frequency of
                                          physical examinations from
                                          annual to biennial, matching
                                          the frequency of BeLPT testing
                                          in the proposed rule.
                                         These alternatives for medical
                                          surveillance are discussed in
                                          the Regulatory Alternatives
                                          Chapter and in this preamble
                                          at section XVIII, Summary and
                                          Explanation of the Proposed
                                          Standard, (k) Medical
                                          Surveillance.
The Panel recommends that OSHA consider  Under the proposed standard,
 that small entities may lack the         employees are only eligible
 flexibility and resources to provide     for medical removal if they
 alternative jobs to employees who test   are sensitized or have been
 positive for the BeLPT, and whether      diagnosed with CBD; skin
 MRP achieves its intended purpose        exposure is not a trigger for
 given the course of beryllium disease.   medical removal (unlike the
 The Panel also recommends that if MRP    version submitted by the SBAR
 is implemented, that its effects on      Panel). After becoming
 the viability of very small firms with   eligible for medical removal
 a sensitized employee be considered      an employee may choose to
 carefully.                               remain in a job with exposure
                                          at or above the action level,
                                          provided that the employee
                                          wears a respirator in
                                          accordance with the
                                          Respiratory Protection
                                          standard (29 CFR 1910.134). If
                                          the employee chooses removal,
                                          the employer is only required
                                          to place the employee in
                                          comparable work with exposure
                                          below the action level if such
                                          work is available; if such
                                          work is not available, the
                                          employer may place the
                                          employee on paid leave for six
                                          months or until such work
                                          becomes available.
                                         OSHA discusses the basis of the
                                          provision and requests
                                          comments on it in this
                                          preamble at Section XVIII,
                                          Summary and Explanation of the
                                          Proposed Standard, (l) Medical
                                          Removal Protection. OSHA
                                          provides an analysis of costs
                                          and economic impacts of the
                                          provision in the PEA in
                                          Chapter 5 and Chapter 6,
                                          respectively.
The Panel recommends that OSHA consider  As stated above, the triggers
 more clearly defining the trigger        for medical surveillance in
 mechanisms for medical surveillance      the proposed standard have
 and also consider additional or          changed from those presented
 alternative triggers--such as limiting   to the SBAR Panel. Whereas the
 the BeLPT to a narrower range of         draft standard presented at
 exposure scenarios and reducing the      the SBAR Panel required
 frequency of BeLPT tests and physical    medical surveillance for
 exams. The Panel also recommends that    employees with skin contact--
 OSHA reconsider whether the risk and     potentially applying to
 cost of all parts of the medical         employees with any level of
 surveillance provisions are              airborne exposure--the
 appropriate where exposure levels are    proposed standard ties medical
 very low. In that context, the Panel     surveillance to exposures
 recommends that OSHA should also         above the proposed PEL of 0.2
 consider the special problems and        [mu]g/m\3\ (or signs or
 costs to small businesses that up        symptoms of beryllium-related
 until now may not have had to provide    health effects, or emergency
 or manage the various parts of an        exposure). Thus, small
 occupational health standard or          businesses with exposures
 program.                                 below the proposed PEL would
                                          not need to provide or manage
                                          medical surveillance for their
                                          employees unless employees
                                          develop signs or symptoms of
                                          beryllium-related health
                                          effects or are exposed in
                                          emergencies.
                                         These issues are discussed in
                                          this preamble at section
                                          XVIII, Summary and Explanation
                                          of the Proposed Standard, (k)
                                          Medical Surveillance.
The Panel recommends that the Agency,    OSHA has reviewed the possible
 in evaluating the economic feasibility   effects of the proposed
 of a potential regulation, consider      regulation on market demand
 not only the impacts of estimated        and/or foreign production, in
 costs on affected establishments, but    addition to the Agency's usual
 also the effects of the possible         measures of economic impact
 outcomes cited by SERs: loss of market   (costs as a fraction of
 demand, the loss of market to foreign    revenues and profits). This
 competitors, and of U.S. production      discussion can be found in
 being moved abroad by U.S. firms. The    Chapter VI of the PEA
 Panel also recommends that OSHA          (entitled Economic Feasibility
 consider the potential burdens on        Analysis and Regulatory
 small businesses of dealing with         Flexibility Determination).
 employees who have a positive test
 from the BeLPT. OSHA may wish to
 address this issue by examining the
 experience of small businesses that
 currently provide the BeLPT.

The Panel recommends that OSHA consider  The provisions in the standard
 seeking ways of minimizing costs for     presented in the SBAR panel
 small businesses where the exposure      report applied to all
 levels may be very low. Clarifying the   employees, whereas the
 use of objective data, in particular,    proposed standard's ancillary
 may allow industries and                 provisions are only applied to
 establishments with very low exposures   employees in work areas who
 to reduce their costs and involvement    are, or can reasonably be
 with many provisions of a standard.      expected to be, exposed to
 The Panel also recommends that the       airborne beryllium.
 Agency consider tiering the              In addition, the scope of the
 application of ancillary provisions of   proposed standard includes
 the standard according to exposure       several limitations. Whereas
 levels and consider a more limited or    the standard presented in the
 narrowed scope of industries.            SBAR panel report covered
                                          beryllium in all forms and
                                          compounds in general industry,
                                          construction, and maritime,
                                          the scope of the proposed
                                          standard (1) applies only to
                                          general industry; (2) does not
                                          apply to beryllium-containing
                                          articles that the employer
                                          does not process; and (3) does
                                          not apply to materials that
                                          contain less than 0.1 percent
                                          beryllium by weight.
                                         In this preamble, OSHA has
                                          clarified the circumstances
                                          under which an employer may
                                          use historical and objective
                                          data in lieu of initial
                                          monitoring (Section XVIII,
                                          Summary and Explanation of
                                          this Proposed Standard, (d)
                                          Exposure Monitoring). OSHA is
                                          also considering whether to
                                          create a guidance product on
                                          the use of objective data to
                                          comply with the requirements
                                          of this proposed standard.
                                          OSHA is considering two
                                          Regulatory Alternatives that
                                          would reduce the impact of
                                          ancillary alternatives on
                                          employers, including small
                                          businesses. Regulatory
                                          Alternative #7, a PEL-only
                                          standard, would drop all
                                          ancillary provisions from the
                                          standard. Regulatory
                                          Alternative #8 would limit the
                                          application of several
                                          ancillary provisions,
                                          including Exposure Monitoring,
                                          the written exposure control
                                          plan section of Method of
                                          Compliance, PPE, Housekeeping,
                                          and Medical Surveillance, to
                                          operations or employees with
                                          exposure levels exceeding the
                                          TWA PEL or STEL. These
                                          alternatives are discussed in
                                          the Regulatory Alternatives
                                          Chapter and in this preamble
                                          at Section I, Issues and
                                          Alternatives.
The Panel recommends that OSHA provide   The explanation and analysis
 an explanation and analysis for all      for all health outcomes (and
 health outcomes (and their scientific    their scientific basis) are
 basis) upon which it is regulating       discussed in this preamble at
 employee exposure to beryllium. The      Section V, Health Effects, and
 Panel also recommends that OSHA          Section VI, Preliminary Risk
 consider to what extent a very low PEL   Assessment. They are also
 (and lower action level) may result in   reviewed in this preamble at
 increased costs of ancillary             Section VIII, Significance of
 provisions to small entities (without    Risk, and the Benefits Chapter
 affecting airborne employee              of the PEA. OSHA requests
 exposures). Since in the draft           comment on these health
 proposal the PEL and action level are    outcomes.
 critical triggers, the Panel            As discussed above, OSHA is
 recommends that OSHA consider            considering Regulatory
 alternate action levels, including an    Alternatives #7 and #8, which
 action level set at the PEL, if a very   would eliminate or reduce the
 low PEL is proposed.                     impact of ancillary provisions
                                          on employers, respectively.
                                          These alternatives are
                                          discussed in the Regulatory
                                          Alternatives Chapter of the
                                          PEA and in this preamble at
                                          Section I, Issues and
                                          Alternatives. OSHA seeks
                                          comment on other ways to avoid
                                          costs of ancillary provisions
                                          when they are not necessary to
                                          protect employees from
                                          exposure to beryllium.
The Panel recommends that OSHA consider  OSHA has removed skin exposure
 more clearly and thoroughly defining     as a trigger for several
 the triggers for ancillary provisions,   ancillary provisions in this
 particularly the skin exposure           proposed standard, including
 trigger. In addition, the Panel          Exposure Monitoring, Hygiene
 recommends that OSHA clearly explain     Areas and Practices, and
 the basis and need for small entities    Medical Surveillance. In
 to comply with ancillary provisions.     addition, the language of this
 The Panel also recommends that OSHA      proposed standard regarding
 consider narrowing the trigger related   skin exposure has changed: for
 to skin and contamination to capture     some ancillary provisions,
 only those situations where surfaces     including PPE and
 and surface dust may contain beryllium   Housekeeping, the requirements
 in a concentration that is significant   are triggered by visible
 enough to pose any risk--or limiting     contamination with beryllium
 the application of the trigger for       or dermal contact with soluble
 some ancillary provisions.               beryllium compounds. These
                                          requirements are discussed in
                                          this preamble at Section
                                          XVIII, Summary and Explanation
                                          of this Proposed Standard. The
                                          Agency has also explained the
                                          basis and need for compliance
                                          with ancillary provisions in
                                          this preamble at Section
                                          XVIII, Summary and
                                          Explanation.
Several SERs said that OSHA should       In the Technological
 first assume the burden of describing    Feasibility Analysis presented
 the exposure level in each industry      in the PEA, OSHA has described
 rather than employers doing so. Others   the exposure level in each
 said that the Agency should accept       industry or application group.
 exposure determinations made on an      In this preamble, OSHA has
 industry-wide basis, especially where    clarified the circumstances
 exposures were far below the PEL         under which an employer may
 options under consideration.             use historical and objective
As noted above, the Panel recommends      data in lieu of initial
 that OSHA consider alternatives that     monitoring (section XVIII,
 would alleviate the need for             Summary and Explanation of
 monitoring in operations or processes    this Proposed Standard, (d)
 with exposures far below the PEL. The    Exposure Monitoring). Industry-
 use of objective data is a principal     wide data may be used as
 method for industries with low           objective data to support an
 exposures to satisfy compliance with a   employer's case that exposures
 proposed standard. The Panel             at its facilities are far
 recommends that OSHA consider            below the PEL. OSHA is also
 providing some guidance to small         considering whether to create
 entities in the use of objective data.   a guidance product on the use
                                          of objective data to comply
                                          with requirements in the
                                          proposed standard.

The Panel recommends that OSHA consider  OSHA has provided discussion of
 more fully evaluating whether the        the BeLPT in Appendix A to the
 BeLPT is suitable as a test for          regulatory text; in this
 beryllium sensitization in an OSHA       preamble at section V, Health
 standard and respond to the points       Effects; and in this preamble
 raised by the SERs about its efficacy.   at section XVIII, Summary and
 In addition, the Agency should           Explanation, (k) Medical
 consider the availability of other       Surveillance. In the
 tests under development for detecting    regulatory text, OSHA has
 beryllium sensitization and not limit    clarified that a test for
 either employers' choices or new         beryllium sensitization other
 science and technology in this area.     than the BeLPT may be used in
 Finally, the Panel recommends that       lieu of the BeLPT if a more
 OSHA re-consider the trigger for         reliable and accurate
 medical surveillance where exposures     diagnostic test is developed.
 are low and consider if there are        In this preamble at Section I,
 appropriate alternatives.                Issues and Alternatives, the
                                          Agency requests comments on
                                          the BeLPT and on the
                                          reliability and accuracy of
                                          alternate tests.
                                         As stated above, the triggers
                                          for medical surveillance in
                                          this proposed standard have
                                          changed from those presented
                                          to the SBAR Panel. Whereas the
                                          draft standard presented
                                          during the SBREFA process
                                          required medical surveillance
                                          for employees with skin
                                          contact--potentially applying
                                          to employees with any level of
                                          airborne exposure--this
                                          proposed standard ties medical
                                          surveillance to exposures
                                          above the proposed PEL of 0.2
                                          [mu]g/m\3\ (or signs or
                                          symptoms of beryllium-related
                                          health effects, or emergency
                                          exposure). The triggers for
                                          medical surveillance are
                                          discussed in this preamble at
                                          section XVIII, Summary and
                                          Explanation, (k) Medical
                                          Surveillance.
                                         OSHA is considering Regulatory
                                          Alternative #16, which would
                                          eliminate BeLPT testing
                                          requirements from this
                                          proposed standard. This
                                          alternative is discussed in
                                          the Regulatory Alternatives
                                          Chapter and in in this
                                          preamble at Section XVIII,
                                          Summary and Explanation of the
                                          Proposed Standard, (k) Medical
                                          Surveillance.
Seeking ways of minimizing costs to low  The standard presented in the
 risk processes and operations: OSHA      SBAR panel report had skin
 should consider alternatives for         exposure as a trigger. The
 minimizing costs to industries,          only skin exposure trigger in
 operations, or processes that have low   this proposed standard is the
 exposures. Such alternatives may         requirement for PPE when
 include, but not be limited to:          employees' skin is potentially
 encouraging the use of objective data    exposed to soluble beryllium
 by such mechanisms as providing          compounds. OSHA uses an
 guidance for objective data; assuring    exposure profile to determine
 that triggers for skin exposure and      which workers will be affected
 surface contamination are clear and do   by the standard. As a result,
 not pull in low risk operations;         this proposed standard
 providing guidance on least-cost ways    establishes regulated work
 for low risk facilities to determine     areas and exposure monitoring
 what provisions of the standard they     only with respect to employees
 need to comply with; and considering     who are, or can reasonably be
 ways to limit the scope of 28 the        expected to be, exposed to
 standard if it can be ascertained that   airborne beryllium.
 certain processes do not represent a    In addition, the scope of this
 significant risk.                        proposed standard includes
                                          several limitations. Whereas
                                          the standard presented in the
                                          SBAR panel report covered
                                          beryllium in all forms and
                                          compounds in general industry,
                                          construction, and maritime,
                                          the scope of this proposed
                                          standard (1) applies only to
                                          general industry; (2) does not
                                          apply to beryllium-containing
                                          articles that the employer
                                          does not process; and (3) does
                                          not apply to materials that
                                          contain less than 0.1 percent
                                          beryllium by weight. In this
                                          preamble, OSHA has clarified
                                          the circumstances under which
                                          an employer may use historical
                                          and objective data in lieu of
                                          initial monitoring (Section
                                          XVIII, Summary and Explanation
                                          of this Proposed Standard, (d)
                                          Exposure Monitoring). OSHA is
                                          also considering whether to
                                          create a guidance product on
                                          the use of objective data.
PEL-only standard: One SER recommended   OSHA is considering Regulatory
 a PEL-only standard. This would          Alternative #7, a PEL-only
 protect employees from airborne          standard. This alternative is
 exposure risks while relieving the       discussed in the Regulatory
 beryllium industry of the cost of the    Alternatives Chapter of the
 ancillary provisions. The Panel          PEA and in this preamble at
 recommends that OSHA, consistent with    Section I, Issues and
 its statutory obligations, analyze       Alternatives.
 this alternative.
Alternative triggers for ancillary       OSHA has removed skin exposure
 provisions: The Panel recommends that    as a trigger for several
 OSHA clarify and consider eliminating    ancillary provisions in this
 or narrowing the triggers for            proposed standard, including
 ancillary provisions associated with     Exposure Monitoring, Hygiene
 skin exposure or contamination. In       Areas and Practices, and
 addition, the Panel recommends that      Medical Surveillance. In
 OSHA should consider trying ancillary    addition, the language of this
 provisions dependent on exposure         proposed standard regarding
 rather than have these provisions all    skin exposure has changed: for
 take effect with the same trigger. If    some ancillary provisions,
 OSHA does rely on a trigger related to   including PPE and
 skin exposure, OSHA should thoroughly    Housekeeping, the requirements
 explain and justify this approach        are triggered by visible
 based on an analysis of the scientific   contamination with beryllium
 or research literature that shows a      or skin contact with soluble
 risk of sensitization via exposure to    beryllium compounds. These
 skin. If OSHA adopts a relatively low    requirements are discussed in
 PEL, OSHA should consider the effects    this preamble at Section
 of alternative airborne action levels    XVIII, Summary and
 in pulling in many low risk facilities   Explanation. OSHA has
 that may be unlikely to exceed the       explained the scientific basis
 PEL--and consider using only the PEL     for minimizing skin exposure
 as a trigger at very low levels.         to beryllium in this preamble
                                          at Section V, Health Effects,
                                          and explains the basis for
                                          specific ancillary provisions
                                          related to skin exposure in
                                          this preamble at Section
                                          XVIII, Summary and
                                          Explanation.

                                         In this proposed standard, the
                                          application of ancillary
                                          provisions is dependent on
                                          exposure, and not all
                                          provisions take effect with
                                          the same trigger. A number of
                                          requirements are triggered by
                                          exposures (or a reasonable
                                          expectation of exposures)
                                          above the PEL or action level
                                          (AL). As discussed above, OSHA
                                          is considering Regulatory
                                          Alternatives #7 and #8, which
                                          would eliminate or reduce the
                                          impact of ancillary provisions
                                          on employers, respectively.
                                          These alternatives are
                                          discussed in the Regulatory
                                          Alternatives Chapter of the
                                          PEA and in this preamble at
                                          Section I, Issues and
                                          Alternatives.
Revise the medical surveillance          Responding to comments from
 provisions, including eliminating the    SERs, OSHA has revised the
 BeLPT: The BeLPT was the most common     medical surveillance provision
 complaint from SERs. The Panel           and removed the skin exposure
 recommends that OSHA carefully examine   trigger for medical
 the value of the BeLPT and consider      surveillance. As a result,
 whether it should be a requirement of    OSHA estimates that the number
 a medical surveillance program. The      of small-business employees
 Panel recommends that OSHA present the   requiring a BeLPT will be
 scientific evidence that supports the    substantially reduced.
 use of the BeLPT as several SERs were   OSHA has provided discussion of
 doubtful of its reliability. The Panel   the BeLPT in Appendix A to the
 recommends that OSHA also consider       regulatory text; in this
 reducing the frequency of physicals      preamble at section V, Health
 and the BeLPT, if these provisions are   Effects; and in this preamble
 included in a proposal. The Panel        at section XVIII, Summary and
 recommends that OSHA also consider a     Explanation, (k) Medical
 performance-based medical surveillance   Surveillance. In the
 program, permitting employers in         regulatory text, OSHA has
 consultation with physicians and         clarified that a test for
 health experts to develop appropriate    beryllium sensitization other
 tests and their frequency.               than the BeLPT may be used in
                                          lieu of the BeLPT if a more
                                          reliable and accurate
                                          diagnostic test is developed.
                                          In this preamble at Section I,
                                          Issues and Alternatives, the
                                          Agency requests comments on
                                          the BeLPT and on the
                                          reliability and accuracy of
                                          alternate tests.
                                         The frequency of periodic BeLPT
                                          testing in this proposed
                                          standard is biennial, whereas
                                          annual testing was included in
                                          the draft standard presented
                                          to the SBAR Panel.
                                         Regulatory Alternative #20
                                          would reduce the frequency of
                                          physical examinations from
                                          annual to biennial, matching
                                          the frequency of BeLPT testing
                                          in this proposed rule.
                                         In response to the suggestion
                                          to allow performance-based
                                          medical surveillance, OSHA is
                                          considering two regulatory
                                          alternatives that would
                                          provide greater flexibility in
                                          the program of tests provided
                                          as part of an employer's
                                          medical surveillance program.
                                          Regulatory Alternative #16
                                          would eliminate BeLPT testing
                                          requirements from this
                                          proposed standard. Regulatory
                                          Alternative #18 would
                                          eliminate the CT scan
                                          requirement from this proposed
                                          standard. These alternatives
                                          are discussed in the
                                          Regulatory Alternatives
                                          Chapter and in this preamble
                                          at Section XVIII, Summary and
                                          Explanation, (k) Medical
                                          Surveillance.
No medical removal protection (MRP):     This proposed standard includes
 OSHA's draft proposed standard did not   an MRP provision. OSHA
 include any provision for medical        discusses the basis of the
 removal protection, but OSHA did ask     provision and requests
 the SERs to comment on MRP as a          comments on it in this
 possibility. Based on the SER            preamble at Section XVIII,
 comments, the Panel recommends that if   Summary and Explanation, (l)
 OSHA includes an MRP provision, the      Medical Removal Protection.
 agency provide a thorough analysis of    OSHA provides an analysis of
 why such a provision is needed, what     costs and economic impacts of
 it might accomplish, and what its full   the provision in the PEA in
 costs and economic impacts on those      Chapter V and Chapter VI,
 small businesses that need to use it     respectively.
 might be.                               The Agency is considering
                                          Alternative #22, which would
                                          eliminate the MRP requirement
                                          from the standard. This
                                          alternative is discussed in
                                          the Regulatory Alternatives
                                          Chapter and in in this
                                          preamble at section XVIII,
                                          Summary and Explanation, (l)
                                          Medical Removal Protection.
------------------------------------------------------------------------

X. OMB Review Under the Paperwork Reduction Act of 1995

A. Overview

    The proposed general industry standard for occupational exposure to
beryllium contains collection of information (paperwork) requirements
that are subject to review by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (PRA-95), 44 U.S.C. 3501 et
seq., and OMB's regulations at 5 CFR part 1320. PRA-95 defines
``collection of information'' to mean, ``the obtaining, causing to be
obtained, soliciting, or requiring the disclosure to third parties or
the public, of facts or opinions by or for an agency, regardless of
form or format'' (44 U.S.C. 3502(3)(A)).
    Under PRA-95, a Federal agency cannot conduct or sponsor a
collection of information unless OMB approves it, and the agency
displays a currently valid OMB control number. In addition, the public
is not required to respond to a collection of information unless the
collection of information displays a currently valid OMB control
number. Also, notwithstanding any other provision of law, no person
shall be subject to penalty for failing to comply with a collection of
information if the collection of information does not display a
currently valid OMB control number.

B. Solicitation of Comments

    OSHA prepared and submitted an Information Collection Request (ICR)
for the collection of information requirements identified in this NPRM
to OMB for review in accordance with 44 U.S.C. 3507(d). The Agency
solicits comments on the proposed collection of information
requirements and the estimated burden hours and costs associated with
these requirements, including comments on the following items:
     Whether the proposed collection of information
requirements are necessary for the proper performance of the

Agency's functions, including whether the information is useful;
     The accuracy of OSHA's estimate of the burden (time and
cost) of the information collection requirements, including the
validity of the methodology and assumptions used;
     The quality, utility and clarity of the information
collected; and
     Ways to minimize the compliance burden on employers, for
example, by using automated or other technological techniques for
collecting and transmitting information.

 C. Proposed Collection of Information Requirements

    As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(1), the
following paragraphs provide information about this ICR.
    1. Title: Occupational Exposure to Beryllium
    2. Description of the ICR: The proposed Beryllium standard contains
collection of information requirements which are essential components
of the occupational safety and health standard that will assist both
employers and their employees in identifying the exposures to beryllium
and beryllium compounds, the medical effects of such exposures, and the
means to reduce the risk of overexposures to beryllium and beryllium
compounds.
3. Brief Summary of the Collection of Information Requirements
    Below is a summary of the collection of information requirements
identified in the Beryllium proposal. Specific details contained in the
following collections of information requirements are discussed in
Section XVIII: Summary and Explanation of the Proposed Standard.
Sec.  1910.1024(d) Exposure Monitoring
    Under paragraph (d)(5)(i) of the proposed standard, within 15
working days after receiving the results of any exposure monitoring
completed under this standard, employers must notify each employee
whose exposure is characterized by the monitoring in writing. Employers
must either notify each of these employees individually in writing, or
post the exposure monitoring results in an appropriate location
accessible to all of these employees. In this proposed standard, the
following provisions require exposure monitoring: Sec.
1910.1024(d)(1), General; Sec.  1910.1024(d)(2), Initial Exposure
Monitoring; Sec.  1910.1024(d)(3), Periodic Exposure Monitoring; Sec.
1910.1024(d)(4), Additional Monitoring.
    Proposed paragraph (d)(5)(ii) details additional information an
employer would need to include in the written notification in
(d)(5)(i), should beryllium exposure exceed the TWA PEL or STEL: a
description of the suspected or known sources of exposure, and the
corrective action(s) the employer has taken or will take to reduce the
employee's exposure to or below the applicable PEL.
Sec.  1910.1024(e)(2)(i) & (ii) Demarcation of Beryllium Work Areas
    Proposed paragraph (e)(2)(i) would require employers to identify
each beryllium work area through signs or any other methods that
adequately establish and inform each employee of the boundaries of each
beryllium work area. Paragraph (e)(2)(ii) would require employers to
identify each regulated area in accordance with paragraph (m)(2).
Sec.  1910.1024(f)(1)(i), (ii), and (iii) Written Exposure Control Plan
    Proposed paragraph (f)(1)(i) would require employers to establish,
implement, and maintain a written exposure control plan for beryllium
work areas. The plan must contain: (A) An inventory of operations and
job titles reasonably expected to have exposure; (B) an inventory of
operations and job titles reasonably expected to have exposure at or
above the action level; (C) an inventory of operations and job titles
reasonably expected to have exposure above the TWA PEL or STEL; (D)
procedures for minimizing cross-contamination, including but not
limited to preventing the transfer of beryllium between surfaces,
equipment, clothing, materials, and articles within beryllium work
areas; (E) procedures for keeping surfaces in the beryllium work area
as free as practicable of beryllium; (F) procedures for minimizing the
migration of beryllium from beryllium work areas to other locations
within or outside the workplace; (G) an inventory of engineering and
work practice controls; and (H) procedures for removal, laundering,
storage, cleaning, repairing, and disposal of beryllium-contaminated
personal protective clothing and equipment, including respirators.
    Proposed paragraph (f)(1)(ii) would require employers to update
their exposure control plans whenever any change in production
processes, materials, equipment, personnel, work practices, or control
methods results or can reasonably be expected to result in new or
additional exposures to beryllium. Paragraph (f)(1)(ii) also requires
employers to update their plans when an employee is confirmed positive
for beryllium sensitization, is diagnosed with CBD, or shows other
signs or symptoms related to beryllium exposure. In addition, this
paragraph requires employers to update their plans if the employer has
any reason to believe that new or additional exposures are occurring or
will occur. Proposed paragraph (f)(1)(iii) would require employers to
make a copy of the exposure control plan accessible to each employee
who is or can reasonably be expected to be exposed to airborne
beryllium in accordance with OSHA's Access to Employee Exposure and
Medical Records (Records Access) standard (29 CFR 1910.1020(e)).
Sec.  1910.1024(g) Respiratory Protection
    Proposed paragraph (g)(1) would require employers to provide at no
cost and ensure that each employee uses respiratory protection during
certain periods or operations. Where the proposed standard requires an
employee to use respiratory protection, proposed paragraph (g)(2)
requires such use to be in accordance with the Respiratory Protection
Standard (29 CFR 1910.134).
    The Respiratory Protection Standard's collection of information
requirements indicate that employers must: develop a written respirator
program; obtain and maintain employee medical evaluation records;
provide the physician or other licensed health care professional
(PLHCP) with information about the employee's respirator and the
conditions under which the employee will use the respirator; administer
fit tests for employees who will use negative- or positive-pressure,
tight-fitting facepieces; and establish and retain written information
regarding medical evaluations, fit testing, and the respirator program.
Sec.  1910.1024(h) Personal Protective Clothing and Equipment
Sec.  1910.1024(h)(2)(v) Removal and Storage
    Proposed paragraph (h)(2)(v) would require employers to ensure that
any protective clothing or equipment required by the standard which is
removed from the workplace for laundering, cleaning, maintenance, or
disposal is labeled in accordance with paragraph (m)(3) of the proposed
standard and the Hazard Communication standard at 29 CFR 1910.1200.
Sec.  1910.1024(h)(3)(iii) Cleaning and Replacement
    Proposed paragraph (h)(3)(iii) would require employers to inform in
writing the persons or the business entities who launder, clean or
repair the protective clothing or equipment required by this

standard of the potentially harmful effects of exposure to airborne
beryllium and contact with soluble beryllium compounds and how the
protective clothing and equipment must be handled in accordance with
the standard.
Sec.  1910.1024(j)(3) Housekeeping
    Proposed paragraph (j)(3)(i) requires waste, debris, and materials
visibly contaminated with beryllium and consigned for disposal to be
disposed of in sealed, impermeable enclosures. Proposed paragraph
(j)(3)(ii) requires these enclosures to be labeled in accordance with
proposed paragraph (m)(3) of the standard.
    Proposed paragraph (j)(3)(iii) requires materials designated for
recycling that are visibly contaminated with beryllium to be cleaned to
remove the visible particulate or placed in sealed, impermeable
enclosures that are labeled in accordance with proposed paragraph
(m)(3) of the standard.
Sec.  1910.1024(k) Medical Surveillance
Sec.  1910.1024(k)(1), (2), and (3) Employee Medical Surveillance
    Proposed paragraph (k)(1) details when and under what conditions an
employer must make medical surveillance available to its employees.
Paragraph (k)(2) of the proposed standard specifies the frequency of
medical examinations that are to be offered to those employees covered
by the medical surveillance program, and proposed paragraph (k)(3)
details the content of the medical examinations.
Sec.  1910.1024(k)(4) Information Provided to the PLHCP
    Proposed paragraph (k)(4) would require employers to provide a copy
of this standard and its appendices to the examining PLHCP. In
addition, the proposed paragraph would require employers to provide the
following information, if known, to the PLHCP: (A) A description of the
employee's former and current duties that relate to the employee's
occupational exposure; (B) the employee's former and current levels of
occupational exposure; (C) a description of any protective clothing and
equipment, including respirators, used by the employee, including when
and for how long the employee has used that protective clothing and
equipment; and (D) information from records of employment-related
medical examinations previously provided to the employee, currently
within the control of the employer, after obtaining a medical release
from the employee.
Sec.  1910.1024(k)(5)(i), (ii), and (iii) Licensed Physician's Written
Medical Opinion
    Under proposed paragraph (k)(5)(i), the employer must obtain a
written medical opinion from the licensed physician within 30 days of
the employee's medical examination. The written medical opinion must
contain the following information: (A) The licensed physician's opinion
as to whether the employee has any detected medical condition that
would place the employee at increased risk of CBD from further
exposure; (B) any recommended limitations on the employee's exposure,
including the use and limitations of protective clothing or equipment,
including respirators; and (C) a statement that the PLHCP has explained
the results of the medical examination to the employee, including any
tests conducted, any medical conditions related to exposure that
require further evaluation or treatment, and any special provisions for
use of protective clothing or equipment.
    Proposed paragraph (k)(5)(ii) would require the employer to ensure
that neither the licensed physician nor any other PLHCP reveals to the
employer findings or diagnoses which are unrelated to beryllium
exposure.
    Proposed paragraph (k)(5)(iii) would require the employer to
provide a copy of the licensed physician's written medical opinion to
the employee within two weeks after receiving it.
Sec.  1910.1024(k)(7) Beryllium Sensitization Test Results Research
    Proposed paragraph (k)(7) would require employers, upon request by
OSHA, to convey employees' beryllium sensitization test results to OSHA
for evaluation and analysis.
Sec.  1910.1024(m) Communication of Hazards
    Proposed paragraph (m)(1)(i) would require chemical manufacturers,
importers, distributors, and employers to comply with all applicable
requirements of the Hazard Communication Standard (HCS) for beryllium
(29 CFR 1910.1200). Proposed paragraph (m)(1)(ii) requires that when
classifying the hazards of beryllium, the employer must address at
least the following: cancer; lung effects (chronic beryllium disease
and acute beryllium disease); beryllium sensitization; skin
sensitization; and skin, eye, and respiratory tract irritation.
    Proposed paragraph (m)(1)(iii) would require employers to include
beryllium in the hazard communication program established to comply
with the HCS, and ensure that each employee has access to labels on
containers and safety data sheets for beryllium.
    Proposed paragraph (m)(2)(i) would require employers to post
warning signs at each approach to a regulated area so that each
employee is able to read and understand the signs and take necessary
protective steps before entering the area. Proposed paragraph
(m)(2)(ii) would require these signs to be legible and readily visible,
and contains language that would be required to appear on each warning
sign.
    Proposed paragraph (m)(3) would require employers to label each bag
and container of clothing, equipment, and materials visibly
contaminated with beryllium consistent with the Hazard Communication
standard at 29 CFR 1910.1200. Proposed paragraph (m)(3) also contains
language that would be required to appear on every such label.
    Proposed paragraph (m)(4)(iv) would require employers to make
copies of the standard and its appendices readily available at no cost
to each employee and designated employee representative.
Sec.  1910.1024(m)(4)(iv) Employee Information
    Paragraph (m)(4)(iv) requires that employers make copies of the
standard and its appendices readily available at no cost to each
employee and designated employee representative.
Sec.  1910.1024(n) Recordkeeping
Sec.  1910.1024(n)(1)(i), (ii), and (iii) Exposure Measurements.
    Proposed paragraph (n)(1)(i) would require employers to keep
records of all measurements taken to monitor employee exposure to
beryllium as required by paragraph (d) of the standard.
    Proposed paragraph (n)(1)(ii) would require employers to include at
least the following information in the records: (A) The date of
measurement for each sample taken; (B) the operation that is being
monitored; (C) the sampling and analytical methods used and evidence of
their accuracy; (D) the number, duration, and results of samples taken;
(E) the type of personal protective clothing and equipment, including
respirators, worn by monitored employees at the time of monitoring;
and, (F) the name, social security number, and job classification of
each employee represented by the monitoring, indicating which employees
were actually monitored.
    Proposed paragraph (n)(1)(iii) would require employers to maintain
employee exposure monitoring records in

accordance with 29 CFR 1910.1020(d)(1)(ii).
Sec.  1910.1024(n)(2)(i), (ii), and (iii) Historical Monitoring Data
    Proposed paragraph (n)(2)(i) would require employers to establish
an accurate record of any historical monitoring data used to satisfy
the initial monitoring requirements in paragraph (d)(2) of the proposed
standard. Paragraph (n)(2)(ii) would require the employer to
demonstrate that the data comply with the requirements of paragraph
(d)(2) of the standard. Paragraph (n)(2)(iii) would require the
employer to maintain historical monitoring data in accordance with 29
CFR 1910.1020.
Sec.  1910.1024(n)(3)(i), (ii), and (iii) Objective Data
    Proposed paragraph (n)(3)(i) would require employers to establish
accurate records of any objective data relied upon to satisfy the
requirement for initial monitoring in proposed paragraph (d)(2).
Proposed paragraph (n)(3)(ii) would require employers to have at least
the following information in such records: (A) The data relied upon;
(B) the beryllium-containing material in question; (C) the source of
the objective data; (D) a description of the operation exempted from
initial monitoring and how the data support the exemption; and (E)
other information demonstrating that the data meet the requirements for
objective data contained in paragraph (d)(2)(ii) of the proposed
standard. Proposed paragraph (n)(3)(iii) would require employers to
maintain objective data records in accordance with 29 CFR 1910.1020.
Sec.  1910.1024(n)(4)(i), (ii), & (iii) Medical Surveillance
    Proposed paragraph (n)(4)(i) would require employers to establish
accurate records for each employee covered by the medical surveillance
requirements in proposed paragraph (k). Proposed paragraph (n)(4)(ii)
would require employers to include in employee medical records the
following information about the employee: (A) Name, social security
number, and job classification; (B) a copy of all licensed physicians'
written opinions; and (C) a copy of the information provided to the
PLHCP as required by paragraph (k)(4) of the proposed standard.
Proposed paragraph (n)(4)(iii) would require employers to maintain
medical records in accordance with 29 CFR 1910.1020.
Sec. Sec.  1910.1024(n)(5)(i) & (ii) Training
    Proposed paragraph (n)(5)(i) would require employers to prepare an
employee training record at the completion of any training required by
the proposed standard. The training record must contain the following
information: The name, social security number, and job classification
of each employee trained; the date the training was completed; and the
topic of the training. Proposed paragraph (n)(5)(ii) would require
employers to maintain employee training records for three years after
the completion of training. This record maintenance requirement would
also apply to records of annual retraining or additional training as
described in paragraph (m)(4) of the proposed standard.
Sec.  1910.1024(n)(6) Access to Records
    Under proposed paragraph (n)(6), employers must make all records
maintained as a requirement of the standard available for examination
and copying to the Assistant Secretary, the Director of NIOSH, each
employee, and each employee's designated representative(s) in
accordance with the Access to employee exposure and medical records
standard (29 CFR 1910.1020).
Sec.  1910.1024(n)(7) Transfer of Records
    Paragraph (n)(7) of the proposed standard would require employers
to comply with the transfer requirements contained in the Access to
employee exposure and medical records standard (29 CFR 1910.1020(h)).
That existing standard requires employers either to transfer records to
successor employers or, if there is no successor employer, to inform
employees of their access rights at least three months before the
cessation of the employer's business.
    4. Affected Public: Business or other for-profit. This standard
applies to employers in general industry who have employees that may
have occupational exposures to any form of beryllium, including
compounds and mixtures, except those articles and materials exempted by
paragraphs (a)(2) and (a)(3) of the proposed standard. This standard
does not apply to articles, as defined in the Hazard Communication
standard (HCS) (29 CFR 1910.1200(c)), that contain beryllium and that
the employer does not process. Also, this standard does not apply to
materials containing less than 0.1% beryllium by weight.
    5. Number of respondents: Employers in general industry that have
employees working in jobs affected by beryllium exposure (4,088
employers).
    6. Frequency of responses: Frequency of response varies depending
on the specific collection of information.
    7. Number of responses:155,818.
    8. Average time per response: Varies from 5 minutes (.08 hours) for
a clerical worker to generate and maintain an employee medical record,
to 8 hours for a human resource manager to develop and implement a
written exposure control plan.
    9. Estimated total burden hours: 80,776.
    10. Estimated cost (capital-operation and maintenance):
$10,900,579.

D. Submitting Comments

    Members of the public who wish to comment on the paperwork
requirements in this proposal must send their written comments to the
Office of Information and Regulatory Affairs, Attn: OMB Desk Officer
for the Department of Labor, OSHA (RIN-1218-AB76), Office of Management
and Budget, Room 10235, Washington, DC 20503, Fax:<PHONE_NUMBER> (this
is not a toll-free numbers), email<EMAIL_ADDRESS>The
Agency encourages commenters also to submit their comments on these
paperwork requirements to the rulemaking docket (Docket Number OSHA-
H005C-2006-0870), along with their comments on other parts of the
proposed rule. For instructions on submitting these comments to the
rulemaking docket, see the sections of this Federal Register notice
titled DATES and ADDRESSES.

E. Docket and Inquiries

    To access the docket to read or download comments and other
materials related to this paperwork determination, including the
complete Information Collection Request (ICR) (containing the
Supporting Statement with attachments describing the paperwork
determinations in detail) use the procedures described under the
section of this notice titled ADDRESSES. You also may obtain an
electronic copy of the complete ICR by visiting the Web page at http://www.reginfo.gov/public/do/PRAMain, scroll under ``Currently Under
Review'' to ``Department of Labor (DOL)'' to view all of the DOL's
ICRs, including those ICRs submitted for proposed rulemakings. To make
inquiries, or to request other information, contact Mr. Todd Owen,
Directorate of Standards and Guidance, OSHA, Room N-3609, U.S.
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210;
telephone<PHONE_NUMBER>.

XI. Federalism

    The Agency reviewed the proposed beryllium rule according to the
Executive Order (E.O.) on Federalism (E.O. 13132, 64 FR 43255, Aug. 10,
1999), which requires that Federal

agencies, to the extent possible, refrain from limiting State policy
options, consult with States before taking actions that would restrict
States' policy options and take such actions only when clear
constitutional authority exists and the problem is of national scope.
The E.O. allows Federal agencies to preempt State law only with the
expressed consent of Congress; in such cases, Federal agencies must
limit preemption of State law to the extent possible.
    Under Section 18 of the Occupational Safety and Health Act (the
``Act'' or ``OSH Act,'' 29 U.S.C. 667), Congress expressly provides
that States may adopt, with Federal approval, a plan for the
development and enforcement of occupational safety and health
standards; States that obtain Federal approval for such a plan are
referred to as ``State-Plan States.'' (29 U.S.C. 667). Occupational
safety and health standards developed by State-Plan States must be at
least as effective in providing safe and healthful employment and
places of employment as the Federal standards.
    While OSHA drafted this proposed rule to protect employees in every
State, Section 18(c)(2) of the OSHA Act permits State-Plan States to
develop and enforce their own standards, provided the requirements in
these standards are at least as safe and healthful as the requirements
specified in this proposed rule if it is promulgated.
    In summary, this proposed rule complies with E.O. 13132. In States
without OSHA-approved State plans, Congress expressly provides for OSHA
standards to preempt State occupational safety and health standards in
areas addressed by the Federal standards; in these States, this rule
limits State policy options in the same manner as every standard
promulgated by the Agency. In States with OSHA-approved State plans,
this rulemaking does not significantly limit State policy options.

XII. State-Plan States

    When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, the 27 State and U.S. territories
with their own OSHA-approved occupational safety and health plans
(``State-Plan States'') must revise their standards to reflect the new
standard or amendment. The State standard must be at least as effective
as the Federal standard or amendment, and must be promulgated within
six months of the publication date of the final Federal rule. 29 CFR
1953.5(a).
    The State may demonstrate that a standard change is not necessary
because, for example, the State standard is already the same as or at
least as effective as the Federal standard change. In order to avoid
delays in worker protection, the effective date of the State standard
and any of its delayed provisions must be the date of State
promulgation or the Federal effective date, whichever is later. The
Assistant Secretary may permit a longer time period if the State makes
a timely demonstration that good cause exists for extending the time
limitation. 29 CFR 1953.5(a).
    Of the 27 States and territories with OSHA-approved State plans, 22
cover public and private-sector employees: Alaska, Arizona, California,
Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada,
New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina,
Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The five
states and territories whose OSHA-approved State plans cover only
public-sector employees are: Connecticut, Illinois, New Jersey, New
York, and the Virgin Islands.
    This proposed beryllium rule applies to general industry. If
adopted as proposed, all State Plan States would be required to revise
their general industry standard appropriately within six months of
Federal promulgation.

XIII. Unfunded Mandates Reform Act

    Under Section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1532, an agency must prepare a written ``qualitative
and quantitative assessment'' of any regulation creating a mandate that
``may result in the expenditure by the State, local, and tribal
governments, in the aggregate, or by the private sector, of
$100,000,000 or more'' in any one year before issuing a notice of
proposed rulemaking. OSHA's proposal does not place a mandate on State
or local governments, for purposes of the UMRA, because OSHA cannot
enforce its regulations or standards on State or local governments (see
29 U.S.C. 652(5)). Under voluntary agreement with OSHA, some States
enforce compliance with their State standards on public sector
entities, and these agreements specify that these State standards must
be equivalent to OSHA standards. The OSH Act also does not cover tribal
governments in the performance of traditional governmental functions,
though it does when tribal governments engage in commercial activity.
However, the proposal would not require tribal governments to expend,
in the aggregate, $100,000,000 or more in any one year for their
commercial activities. Thus, although OSHA may include compliance costs
for affected governmental entities in its analysis of the expected
impacts associated with a proposal, the proposal does not trigger the
requirements of UMRA based on its impact on State, local, or tribal
governments.
    Based on the analysis presented in the Preliminary Economic
Analysis (see Section IX above), OSHA concludes that the proposal would
impose a Federal mandate on the private sector in excess of $100
million in expenditures in any one year. The Preliminary Economic
Analysis constitutes the written statement containing a qualitative and
quantitative assessment of the anticipated costs and benefits required
under Section 202(a) of the UMRA (2 U.S.C. 1532).

XIV. Protecting Children From Environmental Health and Safety Risks

    E.O.13045 (66 FR 19931 (Apr. 23, 2003)) requires that Federal
agencies submitting covered regulatory actions to OMB's Office of
Information and Regulatory Affairs (OIRA) for review pursuant to E.O.
12866 (58 FR 51735 (Oct. 4, 1993)) must provide OIRA with (1) an
evaluation of the environmental health or safety effects that the
planned regulation may have on children, and (2) an explanation of why
the planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the agency. E.O.13045
defines ``covered regulatory actions'' as rules that may (1) be
economically significant under E.O. 12866 (i.e., a rulemaking that has
an annual effect on the economy of $100 million or more, or would
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities), and (2) concern an environmental health risk or safety
risk that an agency has reason to believe may disproportionately affect
children. In this context, the term ``environmental health risks and
safety risks'' means risks to health or safety that are attributable to
products or substances that children are likely to come in contact with
or ingest (e.g., through air, food, water, soil, product use).
    The proposed beryllium rule is economically significant under E.O.
12866 (see Section IX of this preamble). However, after reviewing the
proposed beryllium rule, OSHA has determined that the rule would not
impose environmental health or safety risks to children as set forth in
E.O. 13045. The proposed rule would require employers to limit employee
exposure to beryllium and take other precautions to protect employees
from adverse health effects

associated with exposure to beryllium. OSHA is not aware of any studies
showing that exposure to beryllium disproportionately affects children
or that employees under 18 years of age who may be exposed to beryllium
are disproportionately affected by such exposure. Based on this
preliminary determination, OSHA believes that the proposed beryllium
rule does not constitute a covered regulatory action as defined by E.O.
13045. However, if such conditions exist, children who are exposed to
beryllium in the workplace would be better protected from exposure to
beryllium under the proposed rule than they are currently.

XV. Environmental Impacts

    OSHA has reviewed the beryllium proposal according to the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), the
regulations of the Council on Environmental Quality (40 CFR part 1500),
and the Department of Labor's NEPA procedures (29 CFR part 11). Based
on that review, OSHA does not expect that the proposed rule, in and of
itself, would create additional environmental issues. OSHA has made a
preliminary determination that the proposed standard will have no
impact on air, water, or soil quality; plant or animal life; the use of
land or aspects of the external environment. Therefore, OSHA concludes
that the proposed beryllium standard would have no significant
environmental impacts.

XVI. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this proposed rule in accordance with E.O. 13175 on
Consultation and Coordination with Indian Tribal Governments (65 FR
67249, November 9, 2000), and determined that it does not have ``tribal
implications'' as defined in that order. The rule, if promulgated,
would not have substantial direct effects on one or more Indian tribes,
on the relationship between the Federal government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.

XVII. Public Participation

    OSHA encourages members of the public to participate in this
rulemaking by submitting comments on the proposal.
    Written Comments. OSHA invites interested persons to submit written
data, views, and arguments concerning this proposal. In particular,
OSHA encourages interested persons to comment on the issues raised at
the end of each section. When submitting comments, persons must follow
the procedures specified above in the sections titled DATES and
ADDRESSES.
    Informal public hearings. The Agency will schedule an informal
public hearing on the proposed rule if requested during the comment
period.

XVIII. Summary and Explanation

Introduction

    This section of the preamble explains the requirements that OSHA
proposes to control occupational exposure to beryllium, including the
purpose of these requirements and how they will protect workers from
hazardous beryllium exposures.
    OSHA believes, based on currently available information, that the
proposed requirements are necessary and appropriate to protect workers
exposed to beryllium. In developing this proposed rule, OSHA has
considered many sources of data and information, including responses to
the Request for Information (RFI) for ``Occupational Exposure to
Beryllium'' (OSHA, 2002); the responses from Small Entity
Representatives (SERs) who participated in the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 601 et
seq.) process (OSHA, 2007a); recommendations of the Small Business
Advocacy Review (SBAR) Panel (OSHA, 2008b); the Department of Energy
(DOE) Chronic Beryllium Disease Prevention Program rule (DOE, 1999);
and numerous scientific studies, professional journal articles, and
other data obtained by the Agency.
    The provisions in the proposed standard are generally consistent
with other recent OSHA health standards, such as chromium (VI)(29 CFR
1910.1026) and cadmium (29 CFR 1910.1027). Using a similar approach
across health standards, when possible, makes them more understandable
and easier for employers to follow, and helps to facilitate uniformity
of interpretation. This approach is also consistent with section
6(b)(5) of the OSH Act, which states that health standards shall
consider ``experience gained under this and other health and safety
laws'' (29 U.S.C. 655(b)(5)). However, to the extent that protecting
workers from occupational exposure to beryllium requires different or
unique approaches, the Agency has formulated proposed requirements to
address the specific hazards and working conditions associated with
beryllium exposure.
    Also pursuant to section 6(b)(5), OSHA has expressed the proposed
requirements in performance-based language, where possible, to provide
employers with greater flexibility in determining the most effective
strategies for controlling beryllium hazards in their workplaces. OSHA
believes this approach allows employers to incorporate changes and
advancements in control strategy, technology, and industry practice,
thereby reducing the need to revise the rule when those changes occur.
(a) Scope and Application
    In paragraph (a)(1), OSHA proposes to apply this standard to
occupational exposure to beryllium in all forms, compounds, and
mixtures in general industry.
    For the purpose of the proposed rule, OSHA is treating beryllium
generally, instead of individually addressing specific compounds,
forms, and mixtures. Based on a review of scientific studies, OSHA has
preliminarily determined that the toxicological effects of beryllium
exposure on the human body are similar regardless of the form of
beryllium (see the Health Effects section of this preamble at V.B.5;
V.G). OSHA is not aware of any information that would lead the Agency
to conclude that exposure to different forms of beryllium necessitates
different regulatory approaches or requirements.
    OSHA has preliminarily decided to limit the scope of the rulemaking
to general industry. This proposal is modeled on a suggested rule that
was crafted by two major stakeholders in general industry, Materion
Brush and the United Steelworkers Union (Materion and USW, 2012). In
the course of developing this proposal, they provided OSHA with data on
exposure and control measures and information on their experiences with
handling beryllium in general industry settings. At this time, the
information available to OSHA on beryllium exposures outside of general
industry is limited, but suggests that most operations in other sectors
are unlikely to involve beryllium exposure. The Agency hopes to
expedite the rulemaking process by limiting the scope of this proposal
to general industry and relying on already existing standards to
protect workers in those operations outside of general industry where
beryllium exposure may exist.
    The proposed rule would not apply to marine terminals, longshoring,
or agriculture. OSHA has not found evidence indicating that beryllium
is used or handled in these sectors in a way that might result in
beryllium exposure. The proposed rule also excludes the construction
and shipyard sectors. OSHA believes that occupational exposures to
beryllium in

the construction and shipyard sectors occur primarily in abrasive
blasting operations.
    Abrasive blasters and ancillary abrasive blasting workers are
exposed to beryllium from coal slag and other abrasive blast material
that may contain beryllium as a trace contaminant. Airborne
concentrations of beryllium have been measured above the current TWA
PEL of 2 [mu]g/m\3\ when blast material containing beryllium is used as
intended (see Appendix IV-C in the PEA, OSHA 2014). Abrasive blasters,
pot tenders, and cleanup workers have the potential for significant
airborne exposure during blasting operations and during cleanup of
spent material that may contain beryllium as a trace contaminant.
    To address high concentrations of various hazardous chemicals in
abrasive blasting material, employers must already be using engineering
and work practice controls to limit workers' exposures and must be
supplementing these controls with respiratory protection when
necessary. For example, abrasive blasters in the construction industry
fall under the protection of the Ventilation standard (29 CFR 1926.57).
The Ventilation standard includes an abrasive blasting subsection (29
CFR 1926.57(f)), which requires that abrasive blasting respirators be
worn by all abrasive blasting operators when working inside blast-
cleaning rooms (29 CFR 1926.57(f)(5)(ii)(A)), or when using silica sand
in manual blasting operations where the nozzle and blast are not
physically separated from the operator in an exhaust-ventilated
enclosure (29 CFR 1926.57(f)(5)(ii)(B)), or when needed to protect
workers from exposures to hazardous substances in excess of the limits
set in Sec.  1926.55 (29 CFR 1926.57(f)(5)(ii)(C); ACGIH, 1971)). For
maritime, standard 29 CFR 1915.34(c) covers similar requirements for
respiratory protection needed in blasting operations. Due to these
requirements, OSHA believes that abrasive blasters already have
controls in place and wear respiratory protection during blasting
operations. Thus, in estimating costs for Regulatory Alternatives #2a
and #2b, OSHA judged that the reduction of the TWA PEL would not impose
costs for additional engineering controls or respiratory protection in
abrasive blasting (see Appendix VIII-C in this chapter for details).
OSHA requests comment on this issue--in particular, whether abrasive
blasters using blast material that may contain beryllium as a trace
contaminant are already using all feasible engineering and work
practice controls, respiratory protection, and PPE that would be
required by Regulatory Alternatives #2a and #2b.
    OSHA requests comment on the limitation of the scope to general
industry, as well as information on beryllium exposures in all industry
sectors. The Agency requests information on whether employees in the
construction, maritime, longshoring, shipyard, and agricultural sectors
are exposed to beryllium in any form and, if so, their levels of
exposure and what types of exposure controls are currently in place. In
particular, OSHA requests comment on whether abrasive blasters using
blast material that may contain beryllium as a trace contaminant are
already using all feasible engineering and work practice controls,
respiratory protection, and PPE. OSHA also requests comment on
Regulatory Alternatives #2a and #2b, presented at the end of this
section, that would provide protection to workers in sectors outside of
general industry. Regulatory Alternative #2a would expand the scope of
the proposed standard to include employers in construction and
maritime. Regulatory #2b would change the Z tables in 29 CFR 1910.1000
and 29 CFR 1915.1000, and Appendix A of 29 CFR 1926.55, to lower the
permissible exposure limits for beryllium for workers in all beryllium-
exposed occupations. Another regulatory alternative that would impact
the scope of affected industries, extending eligibility for medical
surveillance to employees in shipyards, construction, and parts of
general industry excluded from the scope of the proposed standard, is
discussed along with other medical surveillance alternatives (see this
preamble at Section XVIII, paragraph (k), Regulatory Alternative #21).
Depending on the nature of the data and comments provided, OSHA
envisions possible expansions of its regulation of beryllium either as
part of this rulemaking or at a later time.
    Paragraph (a)(2) specifies that the proposed rule would not apply
to articles, as defined in the Hazard Communication standard (HCS) (29
CFR 1910.1200(c)), that contain beryllium and that the employer does
not process. The HCS defines an article as ``a manufactured item other
than a fluid or particle: (i) Which is formed to a specific shape or
design during manufacture; (ii) which has end use function(s) dependent
in whole or in part upon its shape or design during end use; and (iii)
which under normal conditions of use does not release more than very
small quantities e.g., minute or trace amounts of a hazardous chemical
(as determined under paragraph (d) of this section), and does not pose
a physical hazard or health risk to employees.'' For example, items or
parts containing beryllium that employers assemble where the physical
integrity of the item is not compromised are unlikely to release more
than a very small quantity of beryllium that would not pose a physical
or health hazard for workers. These items would be considered articles
that are exempt from the scope of the proposed standard. Similarly,
finished or processed items or parts containing beryllium that
employers are simply packing in containers or affixing with shipping
tags or labels are unlikely to release more than a minute or trace
amount of beryllium. These items would also come within the proposed
exemption. By contrast, if an employer performs operations such as
machining, grinding, blasting, sanding, or other processes that
physically alter an item, these operations would not fall within the
exemption in proposed paragraph (a)(2) because they involve processing
of the item and could result in significant exposure to beryllium-
containing material.
    Paragraph (a)(3) specifies that the proposed rule would not apply
to materials containing less than 0.1% beryllium by weight. A similar
exemption is included in several previously promulgated standards,
including Benzene (29 CFR 1910.1028), Methylenedianiline (MDA) (29 CFR
1910.1050), and 1,3-Butadiene (BD) (29 CFR 1910.1051). These exemptions
were established to limit the regulatory burden on employers who do not
use materials containing 0.1 percent or more of the substance in
question, on the premise that workers in exempted industries are not
exposed at levels of concern. In the preamble to the MDA standard, OSHA
states that the Agency relied on data showing that worker exposure to
mixtures or materials of MDA containing less than 0.1 percent MDA did
not create any hazards other than those expected from worker exposure
beneath the action level (57 FR 35630, 35645-46, August 10, 1992). The
exemption in the BD standard does not apply where airborne
concentrations generated by such mixtures can exceed the action level
or STEL. The exemption in the Benzene standard was based on indications
that exposures resulting from substances containing trace amounts of
benzene would generally be below the exposure limit, and on OSHA's
belief that the exemption would encourage employers to reduce the
concentration of benzene in certain

substances (43 FR 27962, 27968, June 27, 1978).
    OSHA is aware of two industries in the general industry sector that
would be exempted from the proposed standard under proposed paragraph
(a)(3): Coal-fired electric power generation and primary aluminum
production. As discussed in the PEA, Chapter IV, Appendices A and B,
most employees' TWA exposures in these industries do not exceed the
proposed action level of 0.1 [mu]g/m\3\. However, exposures above the
proposed PEL of 0.2 [mu]g/m\3\ have been found in some jobs and in
facilities with poor housekeeping and work practices. In coal-fired
electric power generation, these higher exposures are associated with
intermittent exposure to fly ash during maintenance work in and around
baghouses and boilers. Fly ash contains less than 0.01% beryllium;
however, exposures between 0.1 and 0.4 [mu]g/m\3\ were observed among
workers maintaining boilers. Exposures for baghouse cleaning frequently
exceeded the current PEL, reaching as high as 13 [mu]g/m\3\. In
aluminum production, the bauxite ore used as a raw material contains
naturally occurring beryllium in the part per million range (i.e.
<0.0001%); however, a study of four smelters showed that the arithmetic
mean exposure was slightly above the proposed PEL, and the 95th
percentile exposure (of 965 samples) was above 1 [mu]g/m\3\. BeLPT
testing in a group of 734 aluminum workers found two cases of confirmed
beryllium sensitization (0.27%) and an additional few abnormal results
that could not be confirmed, either because the worker was not retested
or the retest appeared normal (Taiwo et al., 2008).
    OSHA requests comment on the exemption proposed for the beryllium
standard. Is it appropriate to include an exemption for operations
where beryllium exists only as a trace contaminant, but some workers
can nevertheless be significantly exposed? Should the Agency consider
dropping the exemption, or constraining it to operations where
exposures are below the proposed action level and STEL? OSHA requests
additional data describing the levels of airborne beryllium in
workplaces that fall under this exemption and comments on regulatory
alternatives, discussed at the end of this section, that would
eliminate or modify the exemption.
    A number of stakeholders, including SERs who participated in the
SBREFA process, urged OSHA to exempt certain industries or processes
and activities from the proposed standard. In support of this request,
SERs from the stamping industry argued that their exposures are low,
below 0.2 [micro]g/m\3\ (OSHA, 2007a). In addition, some SERs requested
exemptions from particular requirements. SERs from the dental
laboratory industry requested exemptions from all requirements other
than training and the permissible exposure limit (PEL). In support of
this request, they also argued that their exposures are very low,
around 0.02 [mu]g/m\3\ when ventilation is used. They indicated that
they already have sufficient engineering and work practice controls in
place to keep exposures low (OSHA, 2008b). The SBREFA Panel recommended
that OSHA consider a more limited scope of industries (OSHA, 2008b).
    The Panel's recommendation is addressed in part in this proposed
standard, which has a much more limited scope than the draft standard
reviewed by the SBREFA Panel. Whereas the draft reviewed by the Panel
covered beryllium in all forms and compounds in general industry,
construction, and maritime, the scope of the current beryllium proposal
includes general industry only, and does not apply to employers in
construction and maritime. In addition, it provides an exemption for
those working with materials that contain beryllium only as a trace
contaminant (less than 0.1 percent composition by weight).
    Although much narrower than the scope in the SBREFA draft, the
current proposal's scope includes industries of concern for some SERs.
OSHA's preliminary feasibility analysis indicates that worker exposures
in both dental laboratories and stamping facilities exceed or have the
potential to exceed the proposed TWA PEL where appropriate controls are
not in place (see section IX of this preamble, Summary of the
Preliminary Economic Analysis and Initial Regulatory Flexibility
Analysis). Accordingly, OSHA has not exempted them from the proposed
standard. However, if employers in these industries have historical or
objective data that meet the requirements set forth in proposed
paragraph (d)(2) demonstrating that they have no exposures or that
exposures are below the action level and at or below the STEL, these
employers may be able to satisfy many of their obligations under this
proposed standard by reference to these data.
    Some stakeholders, including employers who do stripping operations,
urged that OSHA exempt them from the proposed rule because any
beryllium exposures generated in their facilities were comprised of
larger-sized particles, which they contended were not as harmful as
smaller ones (OSHA, 2008b). OSHA has decided not to exempt operations
based on particle size. As discussed in this preamble at section V,
Health Effects, there is not sufficient evidence to demonstrate that
particle size has a significant bearing on health outcomes.
    While acknowledging the concerns raised by SERs that the scope of
the standard might be too broad, OSHA is concerned that the scope of
the current proposal might be too narrow. Exposures have the potential
to exceed the proposed PEL in some blasting operations in construction
and maritime, and in some general industry operations where beryllium
exists as a trace contaminant. Abrasive blasters and ancillary abrasive
blasting workers are exposed to beryllium from coal slags and other
abrasive blast material, which contain beryllium in amounts less than
0.1 percent. Airborne concentrations of beryllium have been measured
above the current TWA PEL of 2 [mu]g/m\3\ when the blast material is
used as intended. Abrasive blasters, pot tenders, and cleanup workers
working primarily in construction and shipyards have the potential for
significant airborne exposure during blasting operations and during
cleanup of spent blast material. Coal fly ash in coal powered utility
facilities is also known to contain trace amounts of beryllium, which
may become airborne during furnace and bag house operations and result
in exposures exceeding the current PELs. Similarly, beryllium exists as
a contaminant in aluminum ore and may result in exposures above the
proposed PELs during aluminum refining and production.
    OSHA invites comment on the proposed scope of the standard and on
Regulatory Alternatives 1 and 2 below, which would increase protection
for workers in maritime and construction industries and in occupations
dealing with beryllium as a trace contaminant.
Regulatory Alternatives 1a and 1b
    Regulatory Alternative #1a would modify the proposed scope to
eliminate the exemption for materials containing less than 0.1 percent
beryllium by weight. Under this alternative, the scope of the rule
would cover employers in general industry, including industries or
occupations where beryllium exists as a trace contaminant. Regulatory
Alternative #1a would expand the scope of the proposed standard to
include all operations in general industry where beryllium exists only
as a trace contaminant; that is, where the materials used contain no
more than 0.1 percent beryllium by weight. Regulatory

Alternative #1b is similar to Regulatory Alternative #1a, but exempts
operations where the employer can show that employees' exposures will
not meet or exceed the action level or exceed the STEL. Where the
employer has objective data demonstrating that a material containing
beryllium or a specific process, operation, or activity involving
beryllium cannot release beryllium in concentrations at or above the
proposed action level or above the proposed STEL under any expected
conditions of use, the specific process, operation, or activity would
be exempt from the proposed standard except for recordkeeping
requirements pertaining to the objective data. Alternative #1a and
Alternative #1b, like the proposed rule, would not cover employers or
employees in construction or shipyards.
Regulatory Alternatives 2a and 2b
    These two alternatives would increase protections for workers in
the construction and maritime sectors. Regulatory alternative #2a would
expand the scope of the proposed standard to also include employers in
construction and maritime. For example, this alternative would cover
abrasive blasters, pot tenders, and cleanup staff working in
construction and shipyards who have the potential for airborne
beryllium exposure during blasting operations and during cleanup of
spent media. Regulatory alternative #2b would amend 29 CFR 1910.1000
Table Z-1, 29 CFR 1915.1000 Table Z, and 29 CFR 1926.55 Appendix A to
replace the current permissible exposure limits for beryllium and
beryllium compounds (and the reference in 1910.1000 Table Z-1 to Table
Z-2) with the TWA PEL and STEL adopted through this rulemaking. This
alternative would also delete the entry for beryllium and beryllium
compounds in 29 CFR 1910.1000 Table Z-2 because the entry would instead
be listed in Table Z-1 as described above. Note that OSHA is proposing
an 8-hour TWA PEL of 0.2 [mu]g/m\3\ and a 15-minute STEL of 2 [mu]g/
m\3\, and is also considering alternative TWA PELs of 0.1 [mu]g/m\3\
and 0.5 [mu]g/m\3\, and alternative STELs of 0.5 [mu]g/m\3\, 1 [mu]g/
m\3\, and 2.5 [mu]g/m\3\. This alternative would limit permissible
airborne beryllium exposures for workers in all beryllium-exposed
occupations including construction, maritime and other industries where
beryllium is a trace contaminant.
    The Z Tables and 1926.55 Appendix A do not incorporate ancillary
provisions such as exposure monitoring, medical surveillance, medical
removal, and PPE. However, many of the occupations excluded from the
scope of the proposed beryllium standard receive some ancillary
provision protections from other rules, such as Personal Protective
Equipment (1910 Subpart I, 1915 Subpart I, 1926.28, also 1926 Subpart
E), Ventilation (1926.57), Hazard Communication (1910.1200), and
specific provisions for welding (1910 Subpart Q, 1915 Subpart D, 1926
Subpart J) and abrasive blasting (1910.109, 1926 Subpart U).
(b) Definitions
    Proposed paragraph (b) includes definitions of key terms used in
the proposed standard. To the extent possible, OSHA uses the same terms
and definitions in the proposed standard as the Agency has used in
other OSHA health standards. Using similar terms across health
standards, when possible, makes them more understandable and easier for
employers to follow. In addition, using similar terms and definitions
helps to facilitate uniformity of interpretation.
    ``Action level'' means an airborne concentration of beryllium of
0.1 micrograms per cubic meter of air ([mu]g/m\3\) calculated as an
eight-hour time-weighted average (TWA). Exposures at or above the
action level but below the TWA PEL trigger the proposed requirements
for periodic exposure monitoring (see paragraph (d)(3)). In addition,
paragraph (f)(1)(i)(B) requires employers to list as part of their
Written Exposure Control Plan the operations and job titles reasonably
expected to have exposure at or above the action level. Paragraph
(f)(2)(i) requires employers to ensure that at least one of the
controls listed in paragraph (f)(2)(i)(A) is in place unless employers
can demonstrate for each operation or process either that such controls
are not feasible, or that employee exposures do not exceed the action
level based on at least two representative personal breathing zone
samples taken seven days apart. Furthermore, whenever an employer
allows employees to consume food or beverages in a beryllium work area,
the employer must ensure that no employee is exposed to beryllium at or
above the action level (paragraph (i)(4)(ii)). The action level is also
relevant to the proposed medical removal requirements. Employees
eligible for removal can chose to remain in environments with exposures
above the action level provided they wear respirators (paragraph
(l)(2)(ii)). These employees may also choose to be transferred to
comparable work in environments with exposures below the action level
(or if comparable work is not available, they may choose to be placed
on paid leave for a period of at least six months (paragraph (l)(3)).
    OSHA's preliminary risk assessment indicates that significant risk
remains at the proposed TWA PEL (see this preamble at section VI,
Significance of Risk). When there is a continuing exposure risk at the
PEL, the courts have ruled that OSHA has the legal authority to impose
additional requirements, such as action levels, on employers to further
reduce risk when those requirements will result in a greater than
minimal incremental benefit to workers' health (Asbestos II, 838 F.2d
at 1274). OSHA's preliminary conclusion is that an action level for
beryllium exposure will result in a further reduction in risk beyond
that provided by the PEL alone.
    Another important reason for proposing an action level involves the
variable nature of employee exposures to beryllium. Because of this
fact, OSHA believes that maintaining exposures below the action level
provides reasonable assurance that employees will not be exposed to
beryllium above the TWA PEL on days when no exposure measurements are
made. This consideration is discussed later in this section of the
preamble regarding proposed paragraph (d)(3).
    OSHA's decision to propose an action level of one-half of the TWA
PEL is consistent with previous standards, including those for
inorganic arsenic (29 CFR 1910.1018), chromium (VI) (29 CFR 1910.1026),
benzene (29 CFR 1910.1028), ethylene oxide (29 CFR 1910.1047), and
methylene chloride (29 CFR 1910.1052).
    ``Assistant Secretary'' means the Assistant Secretary of Labor for
Occupational Safety and Health, United States Department of Labor, or
designee. Proposed paragraph (k)(7) requires employers to report
employee BeLPT results to OSHA for evaluation and analysis if requested
by the Assistant Secretary. Proposed paragraph (n)(6) requires
employers to make all records required under this section available, if
requested, to the Assistant Secretary for examination and copying.
    ``Beryllium lymphocyte proliferation test (BeLPT)'' means the
measurement of blood lymphocyte proliferation in a laboratory test when
lymphocytes are challenged with a soluble beryllium salt. A confirmed
positive test result indicates the person has beryllium sensitization.
For additional explanation of the BeLPT, see the Health Effects section
of this preamble (section V), and Appendix A of this proposed standard.
Under paragraph (f)(1)(ii)(B), employers must update the exposure
control plan when an employee is confirmed positive. The BeLPT could be
used to

determine whether an employee is confirmed positive (see definition of
confirmed positive in paragraph (b) of this proposed standard).
Paragraph (k)(3)(ii)(E) requires the BeLPT unless a more reliable and
accurate test becomes available (see section I of this preamble, Issues
and Alternatives, for discussion and request for comment regarding how
OSHA should determine whether a test is more reliable and accurate than
the BeLPT). Under paragraph (k)(7), employers must convey the results
of medical tests such as the BeLPT to OSHA if requested.
    ``Beryllium work area'' means any work area where employees are, or
can reasonably be expected to be, exposed to airborne beryllium,
regardless of the level of exposure. OSHA notes both a distinction and
some overlap between the definitions of beryllium work area and
regulated area in this proposal. Beryllium work areas are areas where
employees are or can reasonably be expected to be exposed to airborne
beryllium at any level, whereas an area is a regulated area only if
employees are or can reasonably be expected to be exposed above the TWA
PEL or STEL. Therefore, while not all beryllium work areas are
regulated areas, all regulated areas are beryllium work areas because
they are areas with exposure to beryllium. Accordingly, all
requirements for beryllium work areas also apply in all regulated
areas, but requirements specific to regulated areas apply only to
regulated areas and not to beryllium work areas where exposures do not
exceed the TWA PEL or STEL.
    The presence of a beryllium work area triggers a number of the
requirements in this proposal. Under paragraphs (d)(1)(ii) and (iii),
employers must determine exposures for each beryllium work area.
Furthermore, paragraphs (e)(1)(i) and (e)(2)(i) require employers to
establish, maintain, identify, and demarcate the boundaries of each
beryllium work area. Under paragraph (f)(1)(i), employers must
establish and maintain a written exposure control plan for beryllium
work areas. And paragraph (f)(2)(i) requires employers to implement at
least one of the controls listed in (f)(2)(i)(A)(1) through (4) for
each operation in a beryllium work area unless one of the exemptions in
(f)(2)(i)(B) applies. In addition, paragraph (i)(1) requires employers
to provide readily accessible washing facilities to employees working
in a beryllium work area, and to instruct employees to use these
facilities when necessary. Where employees are allowed to eat or drink
in beryllium work areas, employers must ensure that surfaces in these
areas are as free as practicable of beryllium, that exposures are below
the action level, and that these areas comply with the Sanitation
standard (29 CFR 1910.141) (paragraph (i)(4)). Employers must maintain
surfaces in all beryllium work areas as free as practicable of
beryllium (paragraph (j)(1)(i)). Paragraph (j)(2) requires certain
practices and prohibits other practices for cleaning surfaces in
beryllium work areas.
    ``CBD Diagnostic Center'' means a medical facility that has the
capability of performing an on-site clinical evaluation for the
presence of chronic beryllium disease (CBD) that includes
bronchoalveolar lavage, transbronchial biopsy and interpretation of the
biopsy pathology, and the beryllium bronchoalveolar lavage lymphocyte
proliferation test (BeBALLPT). For purposes of this proposal, the term
``CBD Diagnostic Center'' refers to any medical facility that meets
these criteria, whether or not the medical facility formally refers to
itself as a CBD diagnostic center. For example, if a hospital has all
of the capabilities required by this proposal for CBD diagnostic
centers, the hospital would be considered a CBD diagnostic center for
purposes of this proposal.
    Proposed paragraph (k)(6) requires employers to offer employees who
have been confirmed positive a referral to a CBD diagnostic center for
a clinical evaluation.
    ``Chronic beryllium disease (CBD)'' means a chronic lung disease
associated with exposure to airborne beryllium. The Health Effects
section of this preamble, section V, contains more information on CBD.
CBD is relevant to several provisions of this proposal. Paragraph
(f)(1)(ii)(B) requires employers to update the exposure control plan
whenever an employee is diagnosed with CBD. Under paragraph
(k)(1)(i)(B), employers must make medical surveillance available at no
cost to employees who show signs and symptoms of CBD. Paragraph
(k)(3)(ii)(B) requires medical examinations conducted under this
standard to emphasize screening for respiratory conditions, which would
include CBD. Under paragraph (k)(5)(i)(A), the licensed physician's
opinion must advise the employee on whether or not the employee has any
detected medical condition that would place the employee at an
increased risk of CBD from further exposure to beryllium. Furthermore,
CBD is a criterion for medical removal under paragraph (l)(1). Under
paragraph (m)(1)(ii), employers must address CBD in classifying
beryllium hazards under the HCS. Employers must also train employees on
the signs and symptoms of CBD (see paragraph (m)(4)(ii)(A)).
    ``Confirmed positive'' means two abnormal test results from
consecutive BeLPTs or a second abnormal BeLPT result within a two-year
period of the first abnormal result. The definition of confirmed
positive also includes a single result of a more reliable test
indicating that a person has been identified as sensitized to
beryllium. OSHA recognizes that diagnostic tests for beryllium
sensitization could eventually be developed that would not require a
second test to confirm sensitization. OSHA requests comment on how best
to determine whether a new method is more reliable and accurate than
the BeLPT for detecting beryllium sensitization (see section I of this
preamble, Issues and Alternatives).
    Paragraph (f)(1)(ii)(B) requires employers to update the exposure
control plan whenever an employee is confirmed positive or is diagnosed
with CBD. Under proposed paragraph (k)(3)(ii)(E), employers are
required to ensure that a BeLPT is offered to each eligible employee at
the employee's first medical examination under this proposed standard,
and every two years from the date of the first examination unless the
employee receives an abnormal BeLPT result. If the employee's first
BeLPT result is abnormal, the employer must provide the employee a
second test within one month of the first test. If the employee's
second BeLPT result is also abnormal, the employee is considered
confirmed positive for purposes of this proposed standard. OSHA
requests comment on the methods used to determine when a BeLPT test
result is abnormal, and on standardizing the use and interpretation of
the BeLPT (see section I of this preamble, Issues and Alternatives).
    A confirmed positive result will indicate to the licensed physician
that the employee is sensitized to beryllium and is at increased risk
of developing CBD (see paragraph (k)(5)(i)(A)). Employees who are
confirmed positive are eligible for medical removal under proposed
paragraph (l)(1).
    ``Director'' means the Director of the National Institute for
Occupational Safety and Health (NIOSH), U.S. Department of Health and
Human Services, or designee. The proposed recordkeeping requirements
mandate that, upon request, employers make all records required by this
standard available to the Director (as well as the Assistant Secretary)
for examination and copying (see paragraph (n)(6)). Typically, the
Assistant Secretary sends representatives to review workplace safety
and health records. However, the

Director may also review these records while conducting studies such as
Health Hazard Evaluations of workplaces, or for other purposes.
    ``Emergency'' means any uncontrolled release of airborne beryllium.
An emergency could result from equipment failure, rupture of
containers, or failure of control equipment, among other causes.