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DEPARTMENT OF LABOR XI. Summary and Explanation of the Final I. Executive Summary Rule On January 9, 2017, OSHA published Occupational Safety and Health List of Subjects for 29 CFR Part 1910 a final rule on Occupational Exposure to Administration Authority Beryllium and Beryllium Compounds Citation Method (82 FR 2470). This rule created health 29 CFR Part 1910 In the docket for this rulemaking standards for beryllium exposure in the [Docket No. OSHA–2018–0003] found at http://www.regulations.gov, general industry (29 CFR 1910.1024), RIN 1218–AD20 every submission was assigned a construction (29 CFR 1926.1124), and document identification (ID) number shipyards (29 CFR 1915.1024) sectors. Revising the Beryllium Standard for that consists of the docket number On December 11, 2018, OSHA General Industry (OSHA–2018–0003) followed by an published a Notice of Proposed additional four-digit number. For Rulemaking (NPRM) in which the AGENCY: Occupational Safety and Health agency proposed various amendments Administration (OSHA), Labor. example, the document ID number for the proposed rule is OSHA–2018–0003– to the beryllium standard for general ACTION: Final rule. 0016. Some document ID numbers industry (83 FR 63746). With the include one or more attachments (see, proposed revisions, OSHA sought to SUMMARY: OSHA is amending its clarify certain provisions and simplify existing general industry standard for e.g., Document ID OSHA–2018–0003– 0026). or improve compliance with the occupational exposure to beryllium and beryllium standard for general industry. When citing exhibits in the OSHA– beryllium compounds to clarify certain In this final rule, OSHA is finalizing the 2018–0003 docket in this preamble, provisions and simplify or improve majority of the changes proposed in the OSHA includes the term ‘‘Document compliance. The revisions in this final NPRM, with some revisions intended to ID’’ followed by the last four digits of rule are designed to maintain or address concerns raised by stakeholders the document number; the attachment enhance worker protections overall by during the comment period. OSHA number or other attachment identifier, if ensuring that the rule is well believes that these changes to the necessary for clarity; and page numbers understood and compliance is more standard will maintain safety and health (designated ‘‘p.’’ or ‘‘pp.’’). In a citation straightforward. protections for workers and will further that contains two or more document ID DATES: This final rule becomes effective enhance worker protections by ensuring numbers, the document ID numbers are on September 14, 2020. that the standard is well-understood. separated by semi-colons. For example, ADDRESSES: In accordance with 28 The changes to the final standard for a citation referring to National Jewish general industry are fully discussed in U.S.C. 2112(a)(2), OSHA designates Health’s comments and the first Edmund C. Baird, Associate Solicitor of Section XI, Summary and Explanation attachment to Materion Brush, Inc.’s of the Final Rule. Broadly, OSHA Labor for Occupational Safety and comments would be indicated as Health, to receive petitions for review of proposed to add one definition and follows: (Document ID 0022, pp. X–X; modify five existing terms in paragraph the final rule. Contact the Associate 0038–A1, p. X). Solicitor at the Office of the Solicitor, (b), Definitions; to amend paragraph (f), Room S–4004, U.S. Department of Occasionally this preamble refers to Methods of compliance; paragraph (h), Labor, 200 Constitution Avenue NW, documents located in the rulemaking Personal protective clothing and Washington, DC 20210; telephone: (202) dockets that were used for previous equipment; paragraph (i), Hygiene areas 693–5445. beryllium rulemaking activities, and practices; paragraph (j), including the 2017 final rule. When FOR FURTHER INFORMATION CONTACT: Housekeeping; paragraph (k), Medical citing exhibits in other dockets, OSHA Press inquiries: Mr. Frank Meilinger, surveillance; paragraph (m), includes the term ‘‘Document ID’’ OSHA Office of Communications, Communication of hazards; and followed by the full document number. Occupational Safety and Health paragraph (n), Recordkeeping; and to For example, this preamble cites a Administration; telephone: (202) 693– replace the 2017 final standard’s publication by Armstrong et al. (2014), 1999; email: [email protected]. Appendix A with a new appendix General information and technical titled ‘‘Migration of beryllium via designed to supplement the proposed inquiries: Ms. Maureen Ruskin, multiple exposure pathways among definition of beryllium work area. Directorate of Standards and Guidance, work processes in four different OSHA is finalizing these provisions as Occupational Safety and Health facilities,’’ designated Document ID proposed, with the following Administration; telephone: (202) 693– OSHA–H005C–2006–0870–0502. exceptions. First, OSHA is revising the 1950; email: [email protected]. The exhibits in the docket (and the definition of confirmed positive to state SUPPLEMENTARY INFORMATION: other beryllium-rulemaking dockets that the findings of two abnormal, one cited in this preamble), including public abnormal and one borderline, or three Table of Contents comments, supporting materials, borderline results need to occur from I. Executive Summary meeting transcripts, and other beryllium lymphocyte proliferation tests II. Events Leading to the Final Rule documents, are listed on http:// (BeLPTs) conducted within a three-year III. Legal Considerations www.regulations.gov. All exhibits are period. This differs from the definition IV. Final Economic Analysis and Regulatory listed in the docket index on http:// proposed in the 2018 NPRM, which Flexibility Act Certification (FEA) www.regulations.gov, but some exhibits would have required that any V. Office of Management and Budget (OMB) (e.g., copyrighted material) are not combination of test results specified in Review Under the Paperwork Reduction available to read or download from that the definition must be obtained within Act of 1995 website. All materials in the docket are the 30-day follow-up test period VI. Federalism VII. State Plans available for inspection at the OSHA required after a first abnormal or VIII. Unfunded Mandates Reform Act Docket Office, Room N–3508, U.S. borderline BeLPT test result. Second, IX. Consultation and Coordination With Department of Labor, 200 Constitution OSHA is modifying the proposed Indian Tribal Governments Avenue NW, Washington, DC 20210; paragraph (j)(3), which requires X. Environmental Impacts telephone (202) 693–2350. employers to take certain actions when

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transferring materials that contain at II. Events Leading to the Final Rule amending the text of the beryllium least 0.1 percent beryllium by weight or On January 9, 2017, OSHA published standard for general industry to clarify that are contaminated with beryllium the final rule Occupational Exposure to OSHA’s intent with respect to certain outside a plant for the purpose of Beryllium and Beryllium Compounds terms in the standard, including the disposal, recycling, or reuse, to clarify (2017 final rule) in the Federal Register definition of beryllium work area that only transfers outside of a plant, (82 FR 2470).1 Therein, OSHA (BWA), the definition of emergency, and including between facilities owned by concluded that employees exposed to the meaning of the terms dermal contact the same employer, are subject to the beryllium and beryllium compounds at and beryllium contamination (see 83 FR labeling requirements of paragraph the preceding permissible exposure at 19938). The DFR also clarified (m)(3). limits (PELs) were at significant risk of OSHA’s intent with respect to Third, in paragraphs (k)(2)(iii) and material impairment of health, provisions for disposal and recycling (iv), OSHA is modifying the proposed specifically chronic beryllium disease and with respect to provisions that the provisions pertaining to an employer’s (CBD) and lung cancer. The agency agency intended to apply only where obligation to offer a medical further determined that limiting skin can be exposed to materials examination after an employee is employee exposure to an 8-hour time- containing at least 0.1% beryllium by exposed to beryllium in an emergency. weighted average (TWA) PEL of 0.2 mg/ weight (83 FR at 19938). Because the Fourth, OSHA is amending proposed m3 would reduce this significant risk to agency did not receive any significant paragraph (k)(7)(i) to require that an the maximum extent feasible. Therefore, adverse comments, OSHA published a examination at a chronic beryllium the 2017 final rule adopted a TWA PEL Federal Register notice confirming the disease (CBD) diagnostic center be of 0.2 mg/m3. In addition to the revised effective date of the DFR as July 6, 2018, scheduled within 30 days of the PEL, the 2017 final rule established a and withdrawing the companion NPRM employer receiving certain types of new short-term exposure limit (STEL) of (83 FR 31045 (July 3, 2018)). documentation, listed in paragraph 2.0 mg/m3 over a 15-minute sampling On December 11, 2018, OSHA (k)(7)(i)(A) and (B), that trigger period and an action level of 0.1 mg/m3 published an NPRM in the Federal evaluation for CBD. OSHA is further as an 8-hour TWA, along with a number Register (83 FR 63746) in which the revising proposed paragraph (k)(7) by of ancillary provisions intended to agency proposed to further amend the adding a new provision, paragraph beryllium standard for general provide additional protections to 2 (k)(7)(ii), which clarifies that, as part of employees. The ancillary provisions industry. The proposal sought to clarify the evaluation at the CBD diagnostic included requirements for exposure certain provisions–with proposed center, the employer must ensure that assessment, methods for controlling changes designed to facilitate the employee is offered any tests exposure, respiratory protection, application of the standard consistent deemed appropriate by the examining personal protective clothing and with the intent of the 2017 final rule– physician at the CBD diagnostic center equipment, housekeeping, medical and to simplify or improve compliance, and to state that if any tests deemed surveillance, hazard communication, preventing costs that may flow from appropriate by the physician are not and recordkeeping that are similar to misinterpretation or misapplication of available at the CBD diagnostic center, those found in other OSHA health the standard. OSHA requested public they may be performed at another standards. comment on the proposed changes and location that is mutually agreed upon by The 2017 final rule went into effect on provided stakeholders 60 days to submit the employer and the employee. For a May 20, 2017, and OSHA began comments. OSHA received 22 full explanation of comments received enforcing the PEL and the general comments before the comment period and OSHA’s reasoning for these industry standard’s provisions for closed on February 11, 2019. revisions, see Section XI, Summary and exposure assessment, respiratory III. Legal Considerations Explanation of the Final Rule. protection, medical surveillance, and OSHA’s examination of the medical removal on May 11, 2018. See The purpose of the Occupational technological and economic feasibility Updated Interim Enforcement Guidance Safety and Health Act of 1970 (‘‘the of this final rule is presented in the for the Beryllium Standards, available at OSH Act’’ or ‘‘the Act’’), 29 U.S.C. 651 Final Economic Analysis and https://www.osha.gov/laws-regs/ et seq., is to assure so far as possible Regulatory Flexibility Analysis (FEA), standardinterpretations/2018-12-11. every working man and woman in the in Section IV of this preamble. As The majority of the general industry Nation safe and healthful working explained there, OSHA finds that none standard’s other provisions became conditions and to preserve our human of the revisions would impose any new enforceable on December 12, 2018, with resources. 29 U.S.C. 651(b). To achieve employer obligations or increase the compliance obligations for showers and this goal, Congress authorized the overall cost of compliance, while some change rooms following on March 11, Secretary of Labor (‘‘the Secretary’’) to of the revisions in this final rule will 2019 (83 FR 39351). OSHA began promulgate occupational safety and clarify and simplify compliance in such enforcing the general industry health standards pursuant to notice and a way that results in cost savings. OSHA requirements for engineering controls comment rulemaking. See 29 U.S.C. also finds that none of the revisions on March 10, 2020. 655(b). An occupational safety or health would require any new controls or other In response to concerns raised by standard is a standard which requires technology. OSHA therefore concludes stakeholders following the publication conditions, or the adoption or use of one that the final rule is both economically of the 2017 final rule, OSHA published or more practices, means, methods, and technologically feasible. a direct final rule (DFR) in the Federal operations, or processes, reasonably Further, this final rule is considered Register on May 7, 2018 (83 FR 19936), necessary or appropriate to provide safe to be an Executive Order (E.O.) 13771 deregulatory action. Pursuant to the 1 In the 2017 final rule, OSHA issued three 2 OSHA stated in the NPRM that the agency Congressional Review Act (5 U.S.C. 801 separate beryllium standards—general industry, believed that the standard as modified by the et seq.), the Office of Information and shipyards, and construction. This final rule amends proposal would provide equivalent protection to Regulatory Affairs designated this rule only the general industry standard. Therefore, the existing standard; and OSHA would therefore neither this Events Leading to the Final Rule accept compliance with the standard, as modified not a ‘‘major rule,’’ as defined by 5 section nor the remainder of the preamble will by the proposal, as compliance with the standard U.S.C. 804(2). include information about the other two standards. while the rulemaking was pending.

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or healthful employment and places of (‘‘Cotton Dust’’), 452 U.S. 490, 508–09 Finally, because section 6(b)(5) of the employment. 29 U.S.C. 652(8). (1981). The courts have further clarified Act explicitly requires OSHA to set The Act also authorizes the Secretary that a standard is technologically health standards that eliminate risk ‘‘to to ‘‘modify’’ or ‘‘revoke’’ any feasible if OSHA proves a reasonable the extent feasible,’’ OSHA uses occupational safety or health standard, possibility, ‘‘within the limits of the best feasibility analysis rather than cost- 29 U.S.C. 655(b), and under the available evidence . . . that the typical benefit analysis to make standards- Administrative Procedure Act, firm will be able to develop and install setting decisions dealing with toxic regulatory agencies generally may revise engineering and work practice controls materials or harmful physical agents. 29 their rules if the changes are supported that can meet the [standard] in most of U.S.C. 655(b)(5). An OSHA standard in by a reasoned analysis, see Motor its operations.’’ Lead I, 647 F.2d at 1272. this area must be technologically and Vehicle Mfrs. Ass’n v. State Farm Mut. With respect to economic feasibility, the economically feasible–and also cost Auto. Ins. Co., 463 U.S. 29, 42 (1983). courts have held that ‘‘[a] standard is effective, which means that the ‘‘While the removal of a regulation may feasible if it does not threaten massive protective measures it requires are the not entail the monetary expenditures dislocation to or imperil the existence of least costly of the available alternatives and other costs of enacting a new the industry.’’ Id. at 1265 (internal that achieve the same level of standard, and accordingly, it may be quotation marks and citations omitted). protection–but OSHA cannot choose an easier for an agency to justify a OSHA exercises significant discretion alternative that provides a lower level of deregulatory action, the direction in in carrying out its responsibilities under protection for workers’ health simply which an agency chooses to move does the Act. Indeed, ‘‘[a] number of terms of because it is less costly. See Int’l Union, not alter the standard of judicial review the statute give OSHA almost unlimited UAW v. OSHA, 37 F.3d 665, 668 (D.C. established by law.’’ Id. discretion to devise means to achieve Cir. 1994); see also Cotton Dust, 452 The Act provides that in promulgating the congressionally mandated goal’’ of U.S. at 513 n.32. In Cotton Dust, the health standards dealing with toxic ensuring worker safety and health. See Court explained that Congress itself had materials or harmful physical agents, Lead I, 647 F.2d at 1230 (citation defined the appropriate relationship such as the January 9, 2017, final rule omitted). Thus, where OSHA has between costs and benefits by regulating occupational exposure to chosen some measures to address a prioritizing the ‘‘benefit’’ of worker beryllium, the Secretary must set the significant risk over other measures, health above all other considerations, standard that most adequately assures, parties challenging the OSHA standard save those that would make this to the extent feasible and on the basis must ‘‘identify evidence that their ‘‘benefit’’ unachievable. The Court of the best available evidence, that no proposals would be feasible and further stated that any standard based employee will suffer material generate more than a de minimis benefit on a balancing of costs and benefits by impairment of health or functional to worker health.’’ N. Am.’s Bldg. the Secretary that strikes a different capacity even if such employee has balance than that struck by Congress regular exposure to the hazard dealt Trades Unions v. OSHA, 878 F.3d 271, would be inconsistent with the with by such standard for the period of 282 (D.C. Cir. 2017). command set forth in section 6(b)(5). his working life. 29 U.S.C. 655(b)(5). Although OSHA is required to set The Supreme Court has held that standards ‘‘on the basis of the best See Cotton Dust, 452 U.S. at 509. Thus, before the Secretary can promulgate any available evidence,’’ 29 U.S.C. 655(b)(5), while OSHA estimates the costs and permanent health or safety standard, he its determinations are ‘‘conclusive’’ if benefits of its proposed and final rules, must make a threshold finding that supported by ‘‘substantial evidence in in part to ensure compliance with significant risk is present and that such the record considered as a whole,’’ 29 requirements such as those in Executive risk can be eliminated or lessened by a U.S.C. 655(f). Similarly, as the Supreme Orders 12866 and 13771, these change in practices. See Indus. Union Court noted in Benzene, OSHA must calculations do not form the basis for Dep’t, AFL–CIO v. Am. Petroleum Inst. look to ‘‘a body of reputable scientific the agency’s regulatory decisions. (‘‘Benzene’’), 448 U.S. 607, 641–42 thought’’ in making determinations, but IV. Final Economic Analysis and (1980) (plurality opinion). OSHA need a reviewing court must ‘‘give OSHA Regulatory Flexibility Act Certification not make additional findings on risk for some leeway where its findings must be (FEA) this revised rule because OSHA made on the frontiers of scientific previously determined that the knowledge.’’ Benzene, 448 U.S. at 656. A. Summary of Economic Impact beryllium standard addresses a When there is disputed scientific This rule amends OSHA’s existing significant risk that can be eliminated or evidence in the record, OSHA must general industry standard for lessened by a change in practices, see 82 review the evidence on both sides and occupational exposure to beryllium and FR 2545–52, and the changes and ‘‘reasonably resolve’’ the dispute. Tyson, beryllium compounds (29 CFR clarifications in this final rule do not 796 F.2d at 1500. The ‘‘possibility of 1910.1024) to clarify certain provisions affect that determination. See, e.g., Pub. drawing two inconsistent conclusions and simplify or improve compliance. Citizen Health Research Grp. v. Tyson, from the evidence does not prevent the OSHA’s final economic analysis shows 796 F.2d 1479, 1502 n.16 (D.C. Cir. agency’s finding from being supported that these changes will result in 1986) (rejecting the argument that by substantial evidence.’’ N. Am.’s Bldg. unquantifiable cost savings, largely due OSHA must ‘‘find that each and every Trades Unions, 878 F.3d at 291 (quoting to the prevention of misinterpretation aspect of its standard eliminates a Cotton Dust, 452 U.S. at 523) and misapplication of the standard. significant risk’’). (alterations omitted). As the D.C. Circuit In promulgating the 2017 final rule, OSHA standards must also be both has noted, where ‘‘OSHA has the OSHA determined that the beryllium technologically and economically expertise we lack and it has exercised rule was both technologically and feasible. See United Steelworkers of that expertise by carefully reviewing the economically feasible. See 82 FR at Am., AFL–CIO–CLC v. Marshall (‘‘Lead scientific data,’’ a dispute within the 2582–86, 2590–96, Summary of the I’’), 647 F.2d 1189, 1264 (D.C. Cir. 1980). scientific community is not occasion for Final Economic Analysis. The changes The Supreme Court has defined the reviewing court to take sides about herein are intended to align the rule feasibility as ‘‘capable of being done.’’ which view is correct. Tyson, 796 F.2d more clearly with the intent of the 2017 Am. Textile Mfrs. Inst. v. Donovan at 1500. final rule. Because OSHA has

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determined that this final rule will the agency divided the proposed preliminarily anticipated that the decrease the costs of compliance by changes into two groups: (1) Proposed proposed provisions’ net effect would preventing misinterpretation and clarifications and (2) proposed result in some cost savings (83 FR at misapplication of the standard, and revisions. The ‘‘proposed clarifications’’ 63761). OSHA invited comment on all would require no new controls or other were those that were solely intended to aspects of the PEA, including these technology, OSHA has also determined clarify provisions and would not alter preliminary determinations (83 FR at that the rule is both technologically and the requirements and scope of the rule 63760–62, 63764–65). economically feasible. (83 FR at 63760–61). The items OSHA Stakeholders either agreed with or did Because this final rule only clarifies identified as clarifications included the not comment on OSHA’s analysis of the existing beryllium standard or addition of a definition of beryllium potential costs and costs savings makes minor revisions that will sensitization to paragraph (b); minor attributable to the vast majority of the generally aid in compliance, the revised changes to the definitions of CBD proposed clarifications and revisions beryllium standard will maintain safety diagnostic center and chronic beryllium (e.g., Document ID 0026, pp. 1–2; 0038, and health protections for workers. And, disease in paragraph (b); minor changes pp. 21, 26, 32). The only objections the to the extent this final rule helps to the written exposure control plan agency received related to two of the employers avoid misapplication of the provisions in paragraphs (f)(1)(i)(D) and four proposed paragraphs that OSHA is beryllium standard’s requirements and (f)(1)(ii)(B); a minor change in the PPE revising from the proposal in the final hence achieves greater compliance with removal provision of paragraph (h)(2)(i); rule: (1) The definition of the term the standard’s intended meaning, there minor changes to provisions for the confirmed positive; and (2) the will be increased protection for workers. cleaning of PPE in paragraph (h)(3)(iii); requirement related to examinations at B. Final Economic Analysis and minor changes to the cleaning of PPE CBD diagnostic centers (Document ID Regulatory Flexibility Act Certification upon entry to eating or drinking areas in 0021, p. 4; 0022, pp. 5–6). Those paragraph (i)(4)(ii); and minor changes comments, and OSHA’s final Executive Orders 12866 and 13563, to provisions for employee information determination that each of the four the Regulatory Flexibility Act (5 U.S.C. and training in paragraphs (m)(4)(ii)(A) 601–612), and the Unfunded Mandates paragraphs that OSHA is revising from and (m)(4)(ii)(E) (83 FR at 63760–61). the proposal will result in small and Reform Act (UMRA) (2 U.S.C. 1532(a)) The ‘‘proposed revisions,’’ on the require that OSHA estimate the benefits, unquantifiable cost savings, are other hand, were those that would go discussed in detail below. costs, and net benefits of regulations, beyond clarification and alter certain OSHA has also examined the record and analyze the impacts of certain rules requirements of the beryllium standard concerning the proposed clarifications that OSHA promulgates. Executive (83 FR at 63761). The proposed and revisions that OSHA has finalized Order 13563 emphasizes the importance provisions that OSHA identified as without change. As noted above, of quantifying both costs and benefits, revisions included changes to the stakeholders either agreed with or did reducing costs, harmonizing rules, and definitions of beryllium work area, not comment on OSHA’s analysis of promoting flexibility. confirmed positive, and dermal contact This final rule is not a ‘‘significant with beryllium in paragraph (b); a potential costs and costs savings regulatory action’’ under Executive change to the requirements for washing attributable to these proposed changes. Order 12866 or the UMRA. Neither the facilities in paragraph (i)(1); a change to Therefore, after carefully considering all benefits nor the costs of this final rule the requirements for provision of change the comments received and the would exceed $100 million in any given rooms in paragraph (i)(2); changes to the remainder of the record, OSHA affirms year. On the contrary, the possible requirements pertaining to disposal and its preliminary determination that these effects of each provision on costs and recycling in paragraph (j)(3); a change to clarifications and revisions are likely to benefits appear to be relatively small, the requirements for medical result in cost savings, largely from and OSHA has not been able to quantify surveillance following an employee’s improving employer understanding and them. Nor has OSHA been able to exposure to beryllium in an emergency facilitating application of the rule. quantify the cost savings it expects from in paragraph (k)(2); revision to OSHA also affirms its preliminary preventing misinterpretation and provisions for evaluation at a CBD determination that the only potential misapplication of the standard. diagnostic center in paragraph (k)(7)(i); new costs are de minimis costs for the However, OSHA does expect that this a change to the requirements for time employers would need to become final rule will increase understanding warning labels in paragraph (m)(3); and familiar with the revised portions of this and compliance with the standard and, changes to the requirements for final rule. therefore, the agency expects the rule to recordkeeping in paragraphs In summary, OSHA finds that both result in some, unquantifiable cost (n)(1)(ii)(F), (n)(3)(ii)(A), and (n)(4)(i). the four paragraphs that OSHA is savings. Moreover, and as discussed After carefully reviewing the revising from the proposal and the above, OSHA expects this final rule will proposed clarifications and revisions, remainder of the proposed clarifications maintain safety and health protections OSHA preliminarily determined that and revisions that OSHA is finalizing for workers. their net total effect would result in without change in the final rule will potential cost savings, mainly from result in potential cost savings mainly 1. Final Determinations Regarding Costs improving employer understanding and attributable to improving employer and Cost Savings Attributable to the facilitating application of the rule (83 understanding and facilitating Final Rule FR at 63760–61). OSHA preliminarily application of the rule, as well as In the Preliminary Economic Analysis identified a new potential cost, which preventing costs that would follow from and Regulatory Flexibility Act would result from the proposed changes misunderstanding the standard. OSHA Certification (PEA) in the 2018 NPRM, as a whole: A de minimis cost for the expects that the cost savings attributable OSHA considered whether each of the time employers would need to become to these changes will offset the de proposed changes could affect the costs familiar with the revised portions of this minimis employer familiarization costs, and, if so, how those costs might be final rule (83 FR at 63761, 63765). resulting in a net result of cost savings. affected (83 FR at 63760–65). For the Viewing all the proposed changes as a Therefore, OSHA finds that this final purposes of the preliminary analysis, whole, OSHA explained that it rule is likely to result in cost savings.

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

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OSHA has made one change to the removing the requirement for a medical In summary, OSHA preliminarily proposed provisions in paragraph (j)(3) examination within 30 days of exposure found that the end result of the in this final rule. When employers to beryllium during an emergency, proposed changes to paragraph (k)(2) transfer certain materials to another under paragraph (k)(2)(i)(B), and adding from a cost perspective would be that party for disposal, recycling, or reuse, paragraph (k)(2)(iv), which would the cost savings from the potential proposed paragraph (j)(3)(i) would have require the employer to offer a medical avoidance of a premature BeLPT within required employers to label the examination at least one year after but 30 days following an emergency would materials in accordance with paragraph no more than two years after the likely be largely canceled out by the (m)(3) of the standard. As explained in employee is exposed to beryllium acceleration of the cost of the CBD the Summary and Explanation for during an emergency (83 FR at 63757). diagnostic center evaluation and paragraph (j)(3), a comment alerted the In the PEA, OSHA preliminarily medical removal protection. Therefore, agency to a potential ambiguity in this determined that the net cost impact of OSHA preliminarily determined that the proposed text. Specifically, OSHA these proposed changes would be slight, net cost impact of the proposed changes realized that the phrase ‘‘to another with some possible cost savings. would be slight, with some possible cost party’’ could be read to suggest that Specifically, OSHA explained that, in savings (83 FR at 63764). Stakeholders transfers between two facilities owned the FEA for the 2017 final rule, the did not submit any comments related to by the same employer are exempted agency estimated that emergencies OSHA’s preliminary determinations from the labeling requirements in would affect a very small number of regarding potential costs of the paragraph (j)(3)(i). That was not the proposed revisions to paragraph (k)(2). agency’s intent in the proposal. To employees in a given year, likely less than 0.1 percent of the affected In sum, after considering the record as eliminate any ambiguity on this point, a whole, OSHA finds that its OSHA revised paragraph (j)(3)(i) in the population, representing a small addition to the costs of medical preliminary estimates were correct: A final rule to strike the phrase ‘‘to small change in costs, with possible cost another party’’ and add the ‘‘except for surveillance for the standard (Document ID OSHA–H005C–2006–0870–2042, p. savings. Nevertheless, as discussed in intra-plant transfers’’ language that is more detail in the Summary and found in paragraphs (j)(3)(ii) and (iii). V–196). Under the 2017 final rule, some employees might have required two Explanation for paragraph (k), Medical As with the proposed changes to Surveillance, some stakeholders paragraphs (j)(3)(ii) and (iii), which examinations to be confirmed positive: A first test cycle within the initial 30- expressed concerns about possible clarified that those paragraphs’ delays in medical consultations and requirements did not apply to intra- day period and a second BeLPT at least examinations and lack of employee plant transfers, OSHA finds that this two years later. Under the 2018 NPRM, knowledge of potential health effects, proposed change is not a substantive OSHA expected that more of the and one stakeholder argued that change to the standard. It is simply employees who became sensitized from employees who terminate employment clarifying OSHA’s original intent that all exposure in an emergency would be before receiving the post-emergency transfers outside of a plant, including confirmed positive through a single examination might not receive an between facilities owned by the same testing cycle because that test would examination at all after being exposed in employer, are subject to the labeling have been administrated one to two an emergency (Document ID 0023, pp. requirements of paragraph (m)(3). Since years following the emergency. The 2–3; 0024, p. 2; 0027, p. 4). this change does not alter the agency anticipated that the proposed requirements of the standard, it will not change would result in the elimination OSHA is revising paragraphs (k)(2) in affect the costs of compliance with the of one premature testing, which would the final rule in two ways to address standard. Therefore, OSHA finds that ensure better detection for more these concerns. First, OSHA has added none of the changes this final rule employees and incidentally trigger some two sub-provisions under paragraph makes to paragraph (j)(3) will increase cost savings (83 FR at 63764).3 (k)(2)(iv) to provide for post-emergency examination timing for two separate the costs of complying with the To the extent that lengthening the groups of employees. Final paragraph standard. time period in which the test must be (k)(2)(iv)(A) focuses on the very small Medical Surveillance. offered from within 30 days to between group of employees who are exposed in In the 2018 NPRM, OSHA proposed one and two years leads to earlier an emergency but have not received a two sets of changes to paragraph (k). confirmed positive results (within two medical examination under paragraph The first set of changes proposed is in years, as opposed to within two years (k)(1)(i) within the previous two years. paragraph (k)(2), which specifies when plus 30 days), OSHA preliminarily The requirement for these employees is and how frequently medical found that the proposed change could similar to the requirement contained in examinations are to be offered to those slightly accelerate costs to the employer the previous standard; i.e., under the employees covered by the medical for earlier CBD diagnostic center referral final standard, the employer must surveillance program. Paragraph and medical removal protection. OSHA provide these employees with a medical (k)(2)(i)(B) of the previous standard estimated that the proposed change examination within 30 days of the date required the employer to provide a would affect a very small percentage of of the emergency. Because the final medical examination within 30 days an already very small population. The standard treats these employees after determining that the employee agency preliminarily determined that similarly to the manner in which the shows signs or symptoms of CBD or the proposed revision would only previous standard treated all employees other beryllium-related health effects or potentially change the timing of the exposed in an emergency, OSHA does that the employee has been exposed to already-required BeLPT, CBD diagnostic not expect that there will be any change beryllium in an emergency. center referral, and medical removal Based on stakeholder feedback and in cost attributable to this change. In protection (83 FR at 63764, 63764 n.5). other evidence indicating that the 30- other words, for those employees who day period in the previous standard may have not had a medical examination 3 Assuming that this initial analysis does not be insufficient to detect beryllium result in a confirmed positive diagnosis, that within the past two years there is no sensitization in individuals exposed one employee would not be confirmed positive until a change in protocol and, thus, no change time in an emergency, OSHA proposed second test two years later under the current rule. in costs.

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

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physician deems appropriate for reasons perform pulmonary function testing (as 3. Economic and Technological such as diagnosing or determining the outlined by the American Thoracic Feasibility severity of CBD (Document ID 0021, p. Society criteria), bronchoalveolar lavage In the FEA in support of OSHA’s 2017 3; 0022, p. 3; 0028, p. 2). This is (BAL), and transbronchial biopsy are Beryllium Final Rule, OSHA concluded discussed in more detail in the most likely to also provide other that the general industry beryllium 6 Summary and Explanation for medical tests related to CBD. As a standard was economically and paragraph (k), Medical Surveillance. To result, the CBD diagnostic center in the technologically feasible (see 82 FR at address these concerns, OSHA is adding vast majority of cases will be able to 2471). In the 2018 NPRM, OSHA a new provision, paragraph (k)(7)(ii), offer the additional testing deemed explained that it anticipated that none which clarifies that, as part of the necessary by the examining physician. of the proposed changes would impose evaluation at the CBD diagnostic center, Moreover, because the three tests noted any new employer obligations or the employer must ensure that the above are the tests that are commonly increase the overall cost of compliance, employee is offered any tests deemed needed to diagnose CBD, OSHA expects while some of the changes would clarify appropriate by the examining physician that these are the tests that would most and simplify compliance in such a way at the CBD diagnostic center, such as commonly be performed (see Section XI, that results in cost savings. In addition, pulmonary function testing as outlined Summary and Explanation of the Final OSHA preliminarily anticipated that the by American Thoracic Society criteria Rule). Given that this standard requires de minimis cost of any time spent testing, bronchoalveolar lavage (BAL), CBD diagnostic centers to be able to reviewing the proposed changes would 4 and transbronchial biopsy. If any of perform the three tests that are most be more than offset by the cost savings these tests deemed appropriate by the commonly performed to diagnose CBD described in the PEA. OSHA further examining physician are not available at and CBD diagnostic centers typically found that none of the proposed the CBD diagnostic center, the final rule would be able to offer any additional revisions would require any new allows them to be performed at another tests deemed necessary, OSHA expects controls or other technology. OSHA location that is mutually agreed upon by that employees would rarely, if ever, therefore preliminarily determined that 7 the employer and the employee. need to travel to a second location. In the proposed rule was both OSHA does not believe that requiring those rare cases, the added flexibility of economically and technologically employers to provide any tests deemed having the tests performed outside of a feasible. OSHA did not receive any appropriate by the examining physician CBD diagnostic center gives more comments objecting to or otherwise would change the costs of compliance options for the employer and employee questioning this preliminary with the standard because the agency and should lead to cost savings. Because determination.8 Therefore, after accounted for such costs in the 2017 this situation should be quite considering the record as a whole, final rule.5 Specifically, when uncommon, OSHA expects that the cost OSHA finds that the proposed calculating the unit cost for going to a savings of allowing employees to have provisions that are being adopted in this CBD diagnostic center in the 2017 FEA, additional tests outside of a CBD final rule are economically and the agency used a typical suite of tests diagnostic center are likely to be de technologically feasible. that would be performed (Document ID minimis. OSHA also finds that the few new This change to paragraph (k)(7) OSHA–H005C–2006–0870–2042, p. V– changes between the proposal and the clarifies OSHA’s intent that the 205). Consequently, OSHA’s unit cost in final rule would not require any new employer provide any tests deemed the 2017 final rule for an evaluation at controls or other technology and will appropriate by the examining physician a CBD diagnostic center was an average result in cost savings. Therefore, OSHA at the CBD diagnostic center, or at for standard tests that are required. The finds that these final provisions, and the another location if not available at the agency finds that this average set of tests final rule as a whole, are economically CBD diagnostic center, but does not by definition is constructed to give the and technologically feasible. average cost for the tests deemed substantively change the requirements appropriate by the examining physician of the beryllium standard. OSHA 4. Effects on Benefits and, thus, concludes that there are no expects that the changes described here In the 2017 FEA, OSHA attributed costs or cost savings attributable to this would maintain safety and health approximately 67 percent of the change. protections for workers. beryllium sensitization cases and the Paragraph (k)(7)(ii) requires that if any CBD cases avoided, and none of the test deemed appropriate by the 6 Document ID OSHA–H005C–2006–0870–0637 provides some information from the NJH website, lung cancer cases avoided, solely to the examining physician is not available at which provides an overview of the types of tests ancillary provisions of the standard the CBD diagnostic center, the test must performed. (Document ID OSHA–H005C–2006– be performed at another location that is 7 OSHA also notes that it has always intended for 0870–2042, pp. VII–4 to VII–5, VII–24). mutually agreed to by the employer and employers to make available any additional tests deemed appropriate by the examining physician This estimate was based on the ancillary employee. OSHA believes that such (see the discussion of paragraph (k), Medical provisions as a whole, rather than each circumstances would be very rare. CBD Surveillance, in Section XI, Summary and provision separately. diagnostic centers with the ability to Explanation of the Final Rule, of this preamble). The economic analysis of the 2017 final rule did not 8 Although the agency did not receive any 4 explicitly account for these rare cases where a test As discussed in Section XI, Summary and recommended by the examining physician of the comments questioning the economic or Explanation of the Final Rule, OSHA also CBD diagnostic center was not available at the same technological feasibility of the proposed changes, at redesignated previous paragraphs (k)(7)(ii), (iii), center. Hence, there would be a de minimis cost least one stakeholder argued that the previous (iv), and (v) as paragraphs (k)(7)(iii), (iv), (v), and adjustment increase of the total cost of the 2017 standard was not economically or technologically (vi), respectively. This redesignation in paragraph final rule due to this consideration. This is not a feasible and that the proposed provisions remedied (k) also affects a reference in paragraph (l)(1)(ii). change in people’s behavior, simply a some of that stakeholder’s concerns with feasibility These changes are merely administrative and do not methodological change. The current final rule could (Document ID 0038, pp. 13, 21–22, 43). Because the have any substantive or monetary effect. affect people’s behavior and be a true change feasibility of the January 2017 final rule as a whole 5 As discussed in the Summary and Explanation (decrease) in costs. This change merely provides is not at issue in this rulemaking, OSHA considers for paragraph (k), Medical Surveillance, OSHA employers with a more flexible, potentially less these comments indicating that these changes never intended to limit the required tests to the expensive, manner to provide those tests in the rare provide both economic and technological feasibility three tests listed in the previous definition of the situation where they are not available at the original relief as support for the economic and technological term CBD diagnostic center. CBD diagnostic center. feasibility of the proposed revisions.

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In the PEA, OSHA considered the V. Office of Management and Budget On December 11, 2018, OSHA potential effect of each proposed change (OMB) Review Under the Paperwork published a Notice of Proposed to ancillary provisions on employee Reduction Act of 1995 Rulemaking (NPRM) to modify the general industry beryllium standard by protections. Because the proposed A. Overview revisions to the standard would not clarifying certain provisions to improve remove or change the general nature of This final rule revises information and simplify compliance (83 FR 63746). any ancillary provisions, and because collection (paperwork) requirements in The 2018 NPRM proposed to revise the the occupational exposure to beryllium the agency expected the proposed collections of information contained in in general industry (29 CFR 1910.1024) the general industry standard by revisions to maintain safety and health standard that are subject to Office of protections for workers and facilitate modifying provisions for the written Management and Budget (OMB) exposure control plan; the cleaning and employer understanding and approval under the Paperwork replacement of personal protection compliance, OSHA preliminarily Reduction Act of 1995 (PRA) (44 U.S.C. equipment; the disposal, recycling, and determined that the proposed changes 3501 et seq.) and its implementing reuse of contaminated materials; certain would increase the standard’s benefits regulations (5 CFR part 1320). OSHA is aspects of medical surveillance; and the as a whole by enhancing worker revising the previously approved collection of social security numbers in protections overall and by preventing paperwork package under OMB control recordkeeping. OSHA prepared and costs that follow from misunderstanding number 1218–0267, as it pertains to submitted to OMB an ICR for the 2018 the standard. general industry only. The collection of proposed rule for review in accordance OSHA did not receive any comments information items contained in the with 44 U.S.C. 3507(d). A copy of the related to its preliminary assessment of Information Collection Request (ICR) proposed ICR is available to the public the proposed provisions’ effects on pertaining to occupational exposure to at http://www.reginfo.gov/public/do/ beryllium in the construction and benefits. Having considered the record PRAOMBHistory?ombControlNumber= shipyard sectors remain in the ICR as a whole, including all the comments 1218-0267. without change. In accordance with the PRA (44 received, OSHA finds that the changes The PRA generally requires that U.S.C. 3506(c)(2)), OSHA solicited in this final rule will maintain safety agencies consider the impact of public comments on the collection of and health protections for workers paperwork and other information information contained in the 2018 while aligning the standard with the collection burdens imposed on the proposed rule. OSHA encouraged intent behind the 2017 final rule and public, obtain public input, and obtain commenters to submit their comments otherwise preventing costs that could approval from OMB before conducting on the information collection follow from misinterpretation or any collection of information (44 U.S.C. requirements contained in the proposed misapplication of the standard. And the 3507). The PRA defines a collection of rule under docket number OSHA–2018– agency reaffirms its determination that information as ‘‘the obtaining, causing 0003, along with their comments on facilitating employer understanding and to be obtained, soliciting, or requiring other parts of the proposed rule. In compliance has the benefit of enhancing the disclosure to third parties or the addition to generally soliciting worker protections overall. Therefore, public, of facts or opinions by or for an comments on the collection of OSHA finds that the changes in this agency, regardless of form or format’’ information requirements, the proposed final rule will increase the benefits of (44 U.S.C. 3502(3)(A)). Federal agencies rule indicated that OSHA and OMB the standard as a whole. generally cannot conduct or sponsor a were particularly interested in the collection of information, and the public following items: 5. Regulatory Flexibility Act is generally not required to respond to • Whether the proposed collection of Certification an information collection, unless it is information is necessary for the proper approved by OMB under the PRA and performance of the agency’s functions, In accordance with the Regulatory displays a valid OMB control number including whether the information is Flexibility Act, 5 U.S.C. 601 et seq. (as (44 U.S.C. 3507). Also, notwithstanding useful; amended), OSHA has examined the any other provision of law, no person • The accuracy of the agency’s regulatory requirements of this final rule shall be subject to penalty for failing to estimate of the burden of the proposed to revise the general industry beryllium comply with a collection of information collection of information, including the standard to determine whether they if the collection of information does not validity of the methodology and would have a significant economic display a valid OMB control number (44 assumptions used; impact on a substantial number of small U.S.C. 3512). • The quality, utility, and clarity of entities. The final rule modifies the the information to be collected; and B. Solicitation of Comments general industry standard to clarify • Ways to minimize the compliance certain provisions and simplify or On January 9, 2017, OSHA published burden on employers, for example, improve compliance. It does not impose a final rule establishing new permissible through the use of automated or other any new duties or increase the overall exposure limits and other provisions to technological techniques for collecting cost of compliance, and OSHA expects protect employees from beryllium and transmitting information (83 FR exposure, such as requirements for it will provide some cost savings. OSHA 63766). exposure assessment, respiratory On March 29, 2019, OMB issued a therefore expects that this final rule will protection, personal protective clothing Notice of Action (NOA) stating, ‘‘Terms not have a significant economic impact and equipment, housekeeping, medical of the previous clearance remain in on any small entities. Accordingly, surveillance, hazard communication, effect. OMB is withholding approval at OSHA certifies that this final rule will and recordkeeping for the general this time. Prior to publication of the not have a significant economic impact industry, construction, and shipyard final rule, the agency should provide a on a substantial number of small sectors. OMB approved the collections summary of any comments related to entities. of information contained in the final the information collection and their rule under OMB Control Number 1218– response, including any changes made 0267. to the ICR as a result of comments. In

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addition, the agency must enter the C. Summary of Information Collection c. Number of responses: 39,420. correct burden estimates’’ (see OMB Requirements d. Estimated Total Burden Hours: Conclusion Action on ICR Reference No. As required by 5 CFR 1320.5(a)(1)(iv) 25,269. 201812–1218–001, dated March 29, and 1320.8(d)(2), the following e. Estimated Cost: $8,774,874. 2019, available at: https://www.reginfo. paragraphs provide information about 7. Total Estimated Burden Hours and gov/public/do/PRAOMBHistory? the ICR. Cost for All Three Industries: ombControlNumber=1218-0267). 1. Title: Beryllium Standard for a. Estimated Total Number of responses: 173,990. The agency did not receive any public General Industry (29 CFR 1910.1024), b. Estimated Total Burden Hours: comments in response to the proposed Construction (29 CFR 1926.1124), and Maritime (29 CFR 1915.1024). 108,091. ICR submitted to OMB for review. c. Estimated Cost: $27,516,414. Public comments submitted in response 2. Type of Review: Revision. 3. OMB Control Number: 1218–0267. to the NPRM, however, substantively D. Summary of Changes in the 4. Affected Public: Business or Other Collection of Information Requirements addressed provisions containing For-Profit. This final rule applies to collection of information. OSHA employers in general industry who have This final standard for occupational considered these comments when it employees that may have occupational exposure to beryllium and beryllium developed the revised ICR for this final exposures to any form of beryllium, compounds in general industry revises rule. Summaries of comments received including compounds and mixtures, the collection of information on the NPRM and OSHA’s responses are except those articles and materials requirements contained in the existing found in Sections XI, Summary and exempted by paragraphs (a)(2) and ICR for general industry, approved Explanation of the Final Rule, and IV, (a)(3). under OMB control number 1218–0267. Final Economic Analysis and 5. Occupational Exposure to OSHA is updating the new ICR to reflect Regulatory Flexibility Act Certification. Beryllium in General Industry only: those changes, which include changes to the written exposure control plan; the The Department of Labor submitted a. Number of Respondents: 4,538. b. Frequency of Responses: On cleaning and replacement of personal the final ICR concurrent with the protection equipment; the disposal, publication of this final rule, containing occasion, quarterly, semi-annually, annually, biannually. recycling, and reuse of contaminated the full analysis and description of the c. Number of Responses: 134,570. materials; certain aspects of medical burden hours and costs associated with d. Estimated Total Burden Hours: surveillance; and the collection of the final rule, to OMB for approval. A 82,822. Social Security numbers in copy of this ICR will be available to the e. Estimated Cost: $18,741,540. recordkeeping (see Table V.1 below). public at http://www.reginfo.gov/public/ 6. Occupational Exposure to The majority of these changes were _ do/PRAViewICR?ref nbr=202006-1218- Beryllium in Construction and Shipyard adopted by the agency as proposed. 006 (this link will become active on the Sectors (previously-approved costs not However, in response to comments on day following publication of this affected by this rulemaking): the proposed rule, OSHA has revised a notice). At the conclusion of OMB’s a. Number of Respondents: 2,796. few of the provisions of the final rule review, OSHA will publish a separate b. Frequency of responses: On that affect the collection of information. notice in the Federal Register to occasion, quarterly, semi-annually, Those changes are also noted in Table announce the results. annually, biannually. V.1 below.

TABLE V.1—CHANGES TO COLLECTION OF INFORMATION REQUIREMENTS IN THE FINAL RULE FOR GENERAL INDUSTRY

Explanation of this final rule’s changes to the Information collection requirements in this final rule information collection requirements

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

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Explanation of this final rule’s changes to the Information collection requirements in this final rule information collection requirements

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

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Explanation of this final rule’s changes to the Information collection requirements in this final rule information collection requirements

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

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Explanation of this final rule’s changes to the Information collection requirements in this final rule information collection requirements

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

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Explanation of this final rule’s changes to the Information collection requirements in this final rule information collection requirements

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

VI. Federalism VII. State Plans considering all of the changes made by this final rule and the record as a whole, OSHA reviewed this rule in When federal OSHA promulgates a new standard or more stringent OSHA believes that this final rule accordance with the Executive Order on enhances employee safety, in part by Federalism (Executive Order 13132, 64 amendment to an existing standard, the states and U.S. Territories with their revising provisions that may be FR 43255, August 10, 1999), which own OSHA-approved occupational misinterpreted. Therefore, OSHA has requires that federal agencies, to the safety and health plans (State Plans) determined that, within six months of extent possible, refrain from limiting must promulgate a state standard the rule’s promulgation date, State Plans state policy options, consult with states adopting such new federal standard, or must review their state standards and prior to taking any actions that would more stringent amendment to an adopt amendments to those standards restrict state policy options, and take existing federal standard, or an at least that are at least as effective as the such actions only when clear as effective equivalent thereof, within amendments to the beryllium general constitutional and statutory authority six months of promulgation of the new industry standard finalized herein, as exists and the problem is national in federal standard or more stringent required by 29 CFR 1953.5(a), unless the scope. Executive Order 13132 provides amendment. The state may demonstrate State Plans demonstrate that such for preemption of state law only with that a standard change is not necessary amendments are not necessary because the expressed consent of Congress. Any because the state standard is already the their existing standards are already at such preemption is to be limited to the same or at least as effective as the least as effective at protecting workers extent possible. federal standard change. Because a state as this final rule. This decision is also Under Section 18 of the OSH Act, may include standards and standard informed by a comment from Materion Congress expressly provides that states provisions that are equally or more Brush, Inc. (Materion), in which and U.S. territories may adopt, with stringent than federal standards, it Materion argued that OSHA should require states to adopt the proposed federal approval, a plan for the would generally be unnecessary for a changes (Document ID 0038–A5, p. 2).9 development and enforcement of state to revoke a standard when the No other stakeholders opined on this occupational safety and health comparable federal standard is revoked issue. standards. OSHA refers to such states or made less stringent. To avoid delays and territories as ‘‘State Plans’’ (29 in worker protection, the effective date VIII. Unfunded Mandates Reform Act of the state standard and any of its U.S.C. 667). Occupational safety and OSHA reviewed this final rule delayed provisions must be the date of health standards developed by State according to the Unfunded Mandates state promulgation or the federal Plans must be at least as effective in Reform Act of 1995 (UMRA) (2 U.S.C. effective date, whichever is later. The providing safe and healthful 1501 et seq.) and Executive Order 13132 Assistant Secretary may permit a longer employment and places of employment (64 FR 43255). As discussed above in time period if the state makes a timely as the federal standards. Subject to these Section IV, Final Economic Analysis demonstration that good cause exists for requirements, State Plans are free to and Regulatory Flexibility Act extending the time limitation (29 CFR develop and enforce under state law Certification (FEA), of this preamble, the their own requirements for safety and 1953.5(a)). Of the 28 states and territories with agency determined that this final rule health standards. OSHA-approved State Plans, 22 cover will not impose significant additional OSHA previously concluded from its public and private-sector employees: costs on any private- or public-sector analysis for the 2017 final rule that Alaska, Arizona, California, Hawaii, entity. Further, OSHA previously promulgation of the beryllium standard Indiana, Iowa, Kentucky, Maryland, concluded that the rule will not impose complies with E.O. 13132 (82 FR at Michigan, Minnesota, Nevada, New a federal mandate on the private sector 2633). The amendments in this final Mexico, North Carolina, Oregon, Puerto in excess of $100 million (adjusted rule do not change that conclusion. In Rico, South Carolina, Tennessee, Utah, annually for inflation) in expenditures states without OSHA-approved State Vermont, Virginia, Washington, and in any one year (82 FR at 2634). Plans, Congress expressly provides for Wyoming. The remaining six states and Accordingly, this final rule will not OSHA standards to preempt state territories cover only state and local require significant additional occupational safety and health government employees: Connecticut, standards in areas addressed by the Illinois, Maine, New Jersey, New York, 9 OSHA notes that Materion also argued that the State Plans that have already adopted the original federal standards. In these states, this and the Virgin Islands. OSHA standard should be required to adopt the rule limits state policy options in the As discussed in detail below in changes OSHA previously adopted in the 2018 same manner as every standard Section XI, Summary and Explanation direct final rule, as well as the changes that result promulgated by OSHA. In states with of the Final Rule, the majority of the from the current rulemaking (Document ID 0038– A5, p. 1). Whether OSHA should require State Plans OSHA-approved State Plans, this changes made by this final rule will to adopt the changes made in the 2018 direct final rulemaking does not significantly limit clarify certain provisions and simplify rule is out of the scope of this rulemaking and, thus, state policy options. or improve employer compliance. After will not be considered here.

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expenditures by either public or private carefully considering these comments to beryllium. While not every beryllium- employers. and the remainder of the record, OSHA sensitized person will develop chronic As noted above under Section VII, has decided to adopt the majority of the beryllium disease (CBD), beryllium State Plans, the agency’s standards do changes proposed, as well as additional sensitization is essential for not apply to state and local governments changes that were prompted by the development of CBD.’’ The agency is except in states that have elected comments received. These changes adding this definition to clarify other voluntarily to adopt a State Plan clarify certain provisions and simplify provisions in the standard, such as the approved by the agency. Consequently, or improve compliance for the other definitions of chronic beryllium disease this final rule does not meet the provisions of the standard. OSHA (CBD) and confirmed positive, as well as definition of a ‘‘federal believes that these changes will the provisions for medical surveillance intergovernmental mandate’’ (see maintain safety and health protections in paragraph (k) and hazard Section 421(5) of the UMRA (2 U.S.C. for workers and will further enhance communication in paragraph (m). 658(5))). Therefore, for the purposes of worker protections by ensuring that the This definition of beryllium the UMRA, the agency certifies that this standard is well understood and sensitization is identical to the final rule will not mandate that state, implemented according to the agency’s definition proposed in the 2018 NPRM local, or tribal governments adopt new, intent. and is consistent with information unfunded regulatory obligations of, or The following discussion summarizes provided in the 2017 final beryllium increase expenditures by the private the comments received on the proposed rule (82 FR 2470). In the preamble to the sector by, more than $100 million in any changes to the general industry 2017 final rule, OSHA found that year. standard, lays out OSHA’s responses to individuals sensitized through either and final determinations regarding the the dermal or inhalation exposure IX. Consultation and Coordination With issues in the comments, and explains pathways respond to beryllium through Indian Tribal Governments each new or revised provision in this the formation of a beryllium-protein OSHA has reviewed this final rule in final rule including details on any complex, which then binds to T-cells accordance with Executive Order 13175 modification made from the proposal. stimulating a beryllium-specific (65 FR 67249) and determined that it As discussed in detail below, the immune response (82 FR at 2494). The does not have ‘‘tribal implications’’ as changes include the addition of one formation of the T-cell-beryllium- defined in that order. This final rule definition and modifications to five protein complex that results in does not have substantial direct effects existing definitions in paragraph (b) and beryllium sensitization rarely manifests on one or more Indian tribes, on the revisions to seven of the standard’s in any outward symptoms (such as relationship between the federal other paragraphs, including paragraph coughing or wheezing); most who are government and Indian tribes, or on the (f), Methods of compliance; paragraph sensitized show no symptoms at all (see distribution of power and (h), Personal protective clothing and 82 FR at 2492, 2527). Once an responsibilities between the federal equipment; paragraph (i), Hygiene areas individual has been sensitized, any government and Indian tribes. and practices; paragraph (j), subsequent beryllium exposures via Housekeeping; paragraph (k), Medical inhalation can progress to serious lung X. Environmental Impacts surveillance; paragraph (m), disease through the formation of OSHA has reviewed this final rule in Communication of hazards; and granulomas and fibrosis (see 82 FR at accordance with the requirements of the paragraph (n), Recordkeeping. The final 2491–98). Since the pathogenesis of National Environmental Policy Act of rule also replaces the 2017 standard’s CBD involves a beryllium-specific, cell- 1969 (NEPA) (42 U.S.C. 4321 et seq.), Appendix A with a new appendix mediated immune response, CBD the Council on Environmental Quality designed to supplement the final cannot occur in the absence of NEPA regulations (40 CFR part 1500– standard’s definition of beryllium work sensitization (82 FR at 2492; see also 1508), and the Department of Labor’s area. NAS, 2008 (Document ID OSHA– NEPA procedures (29 CFR part 11). As Definitions. H005C–2006–0870–1355)). Therefore, a result of this review, OSHA has Paragraph (b) of the beryllium this definition’s explanation that determined that this final rule will not standard for general industry provides beryllium sensitization is essential for have a significant impact on air, water, definitions of key terms used in the development of CBD is consistent with or soil quality; plant or animal life; the standard. In this final rule, OSHA is the agency’s findings in the 2017 final use of land; or aspects of the external changing or adding six terms in the rule. environment. definitions paragraph of the standard. Several commenters expressed The terms that OSHA is changing or support for OSHA’s inclusion of a XI. Summary and Explanation of the adding are beryllium sensitization, definition of beryllium sensitization in Final Rule beryllium work area, CBD diagnostic the beryllium general industry standard, On December 11, 2018, OSHA center, chronic beryllium disease, including NJH (Document ID 0022, p. 2), published a Notice of Proposed confirmed positive, and dermal contact the United Steelworkers (USW) Rulemaking (83 FR 63746) (2018 NPRM) with beryllium. (Document ID 0033, p. 1), Materion proposing changes to a number of Beryllium sensitization. (Document ID 0038, p. 8), the U.S. provisions in the general industry OSHA is adding the following Department of Defense (DOD) beryllium standard. Following definition for beryllium sensitization: ‘‘a (Document ID 0029, p. 1), and Edison publication of the 2018 NPRM, a variety response in the immune system of a Electric Institute (EEI) (Document ID of stakeholders, including specific individual who has been 0031, p. 2). According to the USW, the representatives of industry, labor, exposed to beryllium. There are no proposed definition is clear and medical groups, public health associated physical or clinical accurate, and is necessary because the organizations, federal and state symptoms and no illness or disability beryllium standard includes many government agencies, academia, trade with beryllium sensitization alone, but provisions related to the recognition of associations, and private citizens, the response that occurs through and appropriate response to beryllium submitted comments on OSHA’s beryllium sensitization can enable the sensitization among beryllium-exposed proposed changes. After reviewing and immune system to recognize and react workers (Document ID 0033, p. 1).

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

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

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area as an area that contains processes and when to establish a beryllium work and for providing better clarity with or operations that release beryllium to area. First, OSHA proposed a new respect to beryllium work areas which workers could be exposed. appendix to the standard (Appendix A), (Document ID 0017; 0022, pp. 6–7; Additionally, OSHA accounted for containing Table A.1, which includes a 0029, p. 1; 0033, pp. 1–4; 0038, pp. 8– NIOSH’s concern by including the list of operations that are commonly 9). For example, the USW agreed with potential for dermal contact with performed when processing beryllium OSHA that the revisions proposed in the beryllium in the definition (see 82 FR at materials and are known to generate NPRM would make the definition more 2658–60). airborne beryllium. OSHA proposed to precise and help to ensure that In the preamble to the 2017 final rule, revise the definition of beryllium work employers can appropriately comply however, OSHA disagreed with area so that any work area where an with the standard. The USW stated that commenters who claimed that the operation that is listed in proposed the proposed definition ‘‘provides proposed definition of beryllium work Appendix A occurs, and involves employers with a clearer means of area was impermissibly vague. The materials containing at least 0.1 percent understanding when and where agency explained that, by limiting the beryllium by weight, is a beryllium demarcation is required’’ for beryllium trigger for beryllium work areas to work area. For work areas where no work areas (Document ID 0033, p. 2). exposures generated from a beryllium- operations listed in proposed Appendix Materion likewise indicated that this releasing process or operation within A occur, the proposed definition would new approach ‘‘greatly improves and the area, the definition made clear that require a beryllium work area wherever simplifies an understanding of where the requirements were not triggered materials containing at least 0.1 percent beryllium work areas should be in a solely on the fact that an employee may beryllium by weight are processed and facility, allowing employers and be handling solid material containing where employees are, or can be employees to know and understand how beryllium. Additionally, any employer reasonably expected to be, exposed to to comply with the requirement to who had doubts about whether a airborne beryllium at or above the establish these protective work areas’’ process was releasing beryllium or action level. The list of operations in (Document ID 0038, p. 9). created the potential for dermal contact Table A.1 was compiled based on the While there was general support for with beryllium could use air sampling experience of Materion, the primary this proposed approach to beryllium or wipe sampling to determine where beryllium manufacturer in the United work areas, several commenters the boundary of a beryllium work area States, and the USW, the primary union expressed concerns about various should be established. OSHA reasoned representing employees with beryllium aspects of the new definition and new that, rather than rendering the provision exposure.10 As noted in the preamble to Appendix A. For example, DOSH agreed vague, defining a beryllium work area in the 2018 NPRM, OSHA intends the list that the addition of a new Appendix A a performance-based manner left to cover all operations and processes would provide clarity to the beryllium employers flexibility in complying with that have the potential for exposure to work area requirements but expressed the standard (82 FR at 2659). airborne beryllium (83 FR at 63761). concern that removal of the dermal Nevertheless, following publication of Second, OSHA proposed to remove contact trigger would reduce worker the 2017 standard, OSHA continued to the reference to dermal contact from the protections. DOSH suggested the use of hear from stakeholders that the definition of the term beryllium work a defined lower limit for beryllium definition of beryllium work area area. OSHA preliminarily determined contamination on surfaces that would remained a source of substantial that this change would make it less address this concern while maintaining uncertainty and confusion. Some likely that the definition could be the protection for workers (Document ID stakeholders expressed concern that misinterpreted as extending to areas of 0023, pp. 1–2). defining a beryllium work area to a facility where work processes or OSHA does not agree that removing include any area where unspecified operations that release beryllium do not the reference to dermal contact from the processes can reasonably be expected to occur or even to entire facilities (83 FR definition of the term beryllium work generate any level of airborne beryllium, at 63749). Further, the agency explained area reduces protections. As noted or where there is a process or operation that it was unaware of beryllium- above and explained in both the that can release beryllium or the releasing processes or operations that preambles to the 2017 final rule and the potential for dermal contact with have a potential for dermal contact that 2018 NPRM, OSHA’s intent was to beryllium, could lead to the designation are not included in the proposed capture those areas of a facility where of entire facilities as beryllium work Appendix A or do not generate airborne beryllium-generating processes or areas because minute quantities of exposures at or above the action level operations are located; OSHA never beryllium can sometimes be detected in (83 FR at 63749). Therefore, OSHA intended for dermal contact alone to areas of a facility far distant from the preliminarily determined that the trigger the standard’s beryllium work work processes that create beryllium proposed change would be as protective area requirements (82 FR at 2659; 83 FR exposures. Stakeholders requested that as the previous definition, while more at 63748). Contrary to DOSH’s assertion, OSHA provide a list of operations that clearly avoiding the erroneous the requirement to establish a beryllium are known to release airborne beryllium, perception that the standard would work area was dependent on the which would allow employers to more require employers to treat entire presence of a process or operation that accurately identify where beryllium facilities as beryllium work areas. can release beryllium and that involves work areas must be established and Comments submitted in response to material that contains at least 0.1 demarcated at their workplaces. As the NPRM showed general support from percent beryllium by weight in the area described in more detail below, employers, unions, and public health in question; exposure alone, whether stakeholders also requested that experts for OSHA’s proposed approach airborne or dermal, was never a trigger ‘‘dermal contact’’ be removed from the for the beryllium work area definition of beryllium work area. 10 Table A.1 is divided into three categories: (1) requirements. In response to this feedback, OSHA Beryllium Metal Alloy Operations (generally <10% Moreover, again as noted above, beryllium by weight); (2) Beryllium Composite proposed in this rulemaking to modify Operations (generally >10% beryllium by weight) OSHA explained in the 2018 NPRM that the definition of beryllium work area to and Beryllium Metal Operations; and (3) Beryllium it did not know of any beryllium- provide clarity for employers on where Oxide Operations. releasing processes or operations with

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the potential for dermal contact that are these areas receive the protective 0022, pp. 6–7). OSHA believes NJH’s not included in the proposed Appendix benefits of these requirements. If a concern is misplaced. First, OSHA A or that do not generate airborne beryllium work area is defined overly requested comment on whether there exposures at or above the action level. broadly, then more employees may were additional operations that should Put more simply, OSHA was unaware of inadvertently be exposed to beryllium be included on the list of operations in any situation where an employer would within the beryllium work area and Appendix A, and no suggestions for be required to establish a beryllium would not receive some of these additional operations were put forth by work area under the previous definition benefits. Moreover, as stated in the 2018 commenters. More importantly, the final but would not be required to do so NPRM, PPE requirements to protect standard requires that a beryllium work under the proposed definition. against dermal exposure to beryllium do area be established if exposures can However, in the interest of caution, not depend on the existence of a reasonably be expected to exceed the OSHA asked stakeholders specifically beryllium work area. The standard action level where materials that whether there are any operations or requires employers to provide and contain at least 0.1 percent beryllium by processes that trigger beryllium work ensure the use of appropriate PPE weight are processed, regardless of areas under the previous definition that whenever there is a reasonable whether the operation is listed in would not be covered under the expectation of dermal contact with Appendix A. As the USW noted, this proposed definition (83 FR at 63749). beryllium, regardless of whether or not requirement ‘‘provides a backstop for Commenters did not point to any such the area is a beryllium work area (see 83 any unforeseen operation which can processes. On the contrary, the only FR at 63749). expose employees above the action stakeholder to squarely address this OSHA also does not agree with DOSH level’’ (Document ID 0033, p. 2). Thus, issue, Materion, noted that it too was that a lower limit for beryllium employees who may be exposed above ‘‘unaware of work areas containing contamination on surfaces is necessary the action level during a process not beryllium-releasing processes or as a trigger for establishing a beryllium listed in Appendix A will still receive operations that have a potential for work area. In the 2017 final rule, OSHA the protections afforded by the dermal contact that are not included in chose not to set quantitative limits for beryllium work area requirements. the proposed Appendix A or generate surface contamination because the best DOD, while generally supportive of airborne exposures at or above the available scientific evidence on adverse the proposed definition of beryllium action level’’ (Document ID 0038 p. 13). health effects from dermal contact with work area, expressed some concerns Furthermore, another stakeholder, the beryllium made it difficult to identify an about Appendix A (Document ID 0029, USW commented that it supported appropriate limit for surface p. 1). First, DOD suggested, without OSHA’s proposed removal of the contamination (82 FR at 2688). This explanation, that OSHA remove the reference to dermal contact from the remains the case today. OSHA discusses word ‘‘generally’’ from the description definition of the term beryllium work the limitations of this data more fully of the table in Appendix A, which area (Document ID 0033, p. 3). The below in the Summary and Explanation describes beryllium metal alloy USW stated that it does not have of the definition of dermal contact with operations as being ‘‘generally < 10% reservations about the proposed change beryllium. beryllium by weight’’ and beryllium and explained its belief ‘‘that dermal Two commenters objected to the composite operations as being exposure is properly addressed exemption for materials that contain ‘‘generally ≤ 10% beryllium by weight.’’ elsewhere in the standard’’ (Document less than 0.1 percent beryllium from the OSHA disagrees with this suggestion. ID 0033, pp. 1–3). According to the definition of beryllium work area The table in Appendix A reflects USW, ‘‘[a]lthough dermal exposure to (Document ID 0022, p. 7; 0027, p. 2). materials that are on the market today. beryllium is important and must be However, OSHA incorporated this However, the inclusion of the word properly addressed, removal of dermal change in the 2018 direct final rule. At ‘‘generally’’ accounts for the possibility exposure from this definition will the time, OSHA explained that it was of beryllium metal alloy operations and reduce the confounding factors that never the agency’s intent that the beryllium composite operations might result in unnecessarily extending requirements related to beryllium work involving different materials. Thus, if beryllium work areas beyond needed areas apply to these materials (83 FR alloys are developed with greater than portions of a workplace’’ (Document ID 19936, 19938 (May 7, 2018)). OSHA did 10 percent beryllium or composites less 0033, p. 3). not receive any adverse comments on than 10 percent beryllium, these In addition, DOSH did not explain the direct final rule and therefore materials will be covered under Table why it believes the change would finalized the change. The 2018 NPRM A.1. Because OSHA does not intend to reduce worker protections. Given that did not propose to amend this portion limit Table A.1 to processes involving DOSH did not point to any particular of the definition and therefore only those materials on the market loss of worker protection and the lack of comments related to the 0.1 percent today, the agency is retaining the word evidence of any differences between the limitation are not within the scope of ‘‘generally’’ in the description of the coverage of the two definitions, OSHA this rulemaking. tables in Appendix A.11 has decided to adopt the proposed OSHA also received comments on the definition, which commenters have new Appendix A. NJH expressed 11 The agency notes that DOD’s comment suggests indicated reduces the confusion caused concerns that the proposed list of there might be some confusion as to whether operations in Appendix A was geared beryllium alloys and beryllium composites are by the previous definition. OSHA analogous. In fact, these materials have different expects the revised definition to provide toward manufacturing and that it ‘‘may structures and should be treated differently from a clarity on the proper boundaries of a restrict employers’ interpretations of a control strategy point of view. A metal alloy is a beryllium work area. Employers are beryllium work area and prevent metal which is a homogeneous mixture of two or more metals or of a metal and another element to required by paragraph (j)(1), in employees from the protections afforded provide unique characteristics or properties (see conjunction with paragraph (f)(1), to by the beryllium standard. Employers https://www.thefreedictionary.com/Metal+alloy). A minimize the migration of beryllium may only consider these featured tasks ‘‘beryllium composite,’’ on the other hand, is a from beryllium work areas, and clearly as those that dictate a beryllium work metal matrix composite or (MMC) which typically contain at least two distinct constituent parts (see defining the beryllium work area area, when other tasks may be https://www.azom.com/article.aspx? ensures employees working outside of considered as such’’ (Document ID ArticleID=9843).

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DOD, along with DOSH, also the definition of beryllium work area (Document ID 0022, p. 2; 0021, p. 2). questioned the deletion of the Appendix and the corresponding update to According to NJH, clinics that regularly A published with the 2017 final Appendix A as proposed, with the evaluate patients for CBD have beryllium rule. That old appendix exception of correcting the physicians with experience in provided non-mandatory general control typographical error in Appendix A occupational health conduct the clinical strategies for common operations. These noted by Materion. evaluation for CBD, in conjunction with commenters thought that the old CBD diagnostic center. a pulmonologist who performs a appendix was useful and should be OSHA is amending the 2017 final bronchoscopy (Document ID 0022, pp. retained in the standard (Document ID rule’s definition of CBD diagnostic 2–3). 0029, p. 1; 0023, p. 3). OSHA agrees that center to clarify certain requirements OSHA notes that, although the agency the old appendix contained useful used to qualify an existing medical is requiring facilities to have a information, but expects that in time it facility as a CBD diagnostic center. The pulmonologist or pulmonary specialist would have become either obsolete or clarification does not change the on staff who is able to interpret the incomplete. Instead, OSHA plans to requirement for the employer to offer a biopsy pathology and the BAL provide this information about general follow-up examination at a CBD diagnostic test results, OSHA does not control strategies in guidance materials diagnostic center to employees meeting intend that all aspects of clinical tailored to reach the targeted audience. the criteria set forth in paragraph (k). evaluation for CBD must be performed This will make it easier to update as OSHA is defining CBD diagnostic center by a pulmonologist or pulmonary new technologies or beryllium processes to mean a medical diagnostic center that specialist. In the preamble to the 2017 become available. has a pulmonologist or pulmonary final rule, OSHA explained that the In addition, under paragraph (f)(2), specialist on staff and on-site facilities agency was defining a CBD diagnostic Engineering and work practices, to perform a clinical evaluation for the center as a facility with a pulmonary employers are obligated to use presence of CBD. The revised definition specialist ‘‘on-site’’ specifically to engineering controls in beryllium work also states that a CBD diagnostic center indicate that the specialist need not areas. OSHA requires employers to use must have the capacity to perform personally perform the BeLPT testing at least one type of control that is listed pulmonary function testing (as outlined (82 FR at 2645). Moreover, paragraph in paragraph (f)(2)(ii) (substitution, by the American Thoracic Society (k)(7), which sets out the substantive isolation, local exhaust ventilation, or criteria), bronchoalveolar lavage (BAL), requirements for the evaluation at the process controls) unless controls are and transbronchial biopsy. In the CBD diagnostic center, refers to infeasible or exposures are revised definition, the CBD diagnostic recommendations of the ‘‘examining demonstrated to be below the action center must also have the capacity to physician,’’ not necessarily the level. These general controls are the transfer BAL samples to a laboratory for pulmonologist or pulmonary specialist. same types of controls that were listed appropriate diagnostic testing within 24 Paragraph (b), in turn, defines in Appendix A and are required hours and the pulmonologist or physician or other licensed health care regardless of whether that appendix is pulmonary specialist must be able to professional (PLHCP) as an individual retained. For these reasons, this final interpret the biopsy pathology and the licensed to provide some or all of the standard does not retain the old BAL diagnostic test results. This services required by paragraph (k). As Appendix A. definition is identical to the definition such, some parts of the evaluation, such Materion fully supported the of CBD diagnostic center that OSHA as lung function tests, might be proposed changes to the beryllium work proposed in the 2018 NPRM. performed by a certified medical area definition and the proposed The revised definition of CBD professional other than a pulmonologist Appendix A. However, it noted a diagnostic center differs from the former or pulmonary specialist. The typographical error in Appendix A for definition in a number of ways. First, arrangement that NJH describes as ‘‘High Speed Machining (≤ 10,000 whereas the 2017 final rule’s definition typical for clinics treating CBD patients, rpm),’’ which should be (≤ 10,000 rpm) specified only that a CBD diagnostic in which physicians with experience in (Document ID 0038, p. 10). OSHA agrees center must have a pulmonary occupational health conduct the clinical that the entry in the NPRM’s Appendix specialist, OSHA is adding the term evaluation for CBD in conjunction with A is incorrect and made the appropriate ‘‘pulmonologist’’ to clarify that either a pulmonologist who performs a correction in this final rule. type of specialist is qualified to perform bronchoscopy, is consistent with After careful consideration of the a clinical evaluation for the presence of OSHA’s intent for the definition of CBD record, OSHA has determined that the CBD. Additionally, the 2017 definition diagnostic center and other provisions revised definition of beryllium work required that a CBD diagnostic center of the standard related to CBD area will improve compliance with the have an on-site pulmonary specialist. diagnosis. Therefore, OSHA has standard by providing greater clarity to The revised definition states that the determined that it is not necessary to employers regarding when and where CBD diagnostic center must simply have revise the definition of CBD diagnostic beryllium work areas should be a pulmonologist or pulmonary specialist center to require that the clinical established in the workplace. The on staff. This clarifies OSHA’s intent evaluation for CBD be conducted by a agency further finds that properly that a specialist must be available to the pulmonologist, occupational medicine identifying beryllium work areas will CBD diagnostic center but need not specialist, or physician with expertise in reduce potential exposure for workers necessarily be on site at all times. beryllium disease. outside of these areas through the In their comments on the 2018 NPRM, An additional change to the definition various provisions triggered by two commenters, NJH and the ATS, of CBD diagnostic center clarifies that beryllium work areas. In sum, OSHA recommended that a pulmonologist, the diagnostic center must have the has determined that the revision to the occupational medicine specialist, or capacity to perform pulmonary function definition of beryllium work area will physician with expertise in beryllium testing (according to American Thoracic ensure that the standard’s requirements disease should conduct the clinical Society criteria), bronchoalveolar lavage related to beryllium work areas are evaluation for CBD and that a (BAL), and tranbronchial biopsy. OSHA workable and properly understood. pulmonologist should be on staff or determined that the former definition— Therefore, OSHA has decided to finalize available to perform the bronchoscopy which stated that the evaluation at the

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diagnostic center ‘‘must include’’ these of paragraph (k), the revised definition necessary clarification to ensure the tests—could have been misinterpreted of CBD diagnostic center cannot definition provided is specific to to mean that the examining physician reasonably be read to limit the types of chronic beryllium disease (Document ID was required to perform each of these tests available to the employee (see the 0038, p. 17). The USW similarly tests during every clinical evaluation at Summary and Explanation for supported the proposed definition, a CBD diagnostic center. The agency’s paragraph (k)(7) for a full discussion of stating that it clarifies the previous intent is not to dictate which tests an this topic). Thus, after considering these definition which ‘‘could be read to evaluation at a CBD diagnostic center comments, OSHA has decided to retain apply to any chronic lung disease should include, but to ensure that any the proposed change to the definition of caused by beryllium, including lung CBD diagnostic center has the capacity CBD diagnostic center. cancer’’ (Document ID 0033, p. 5). These to perform any of these tests, which are Chronic beryllium disease (CBD). comments reinforce OSHA’s commonly needed to diagnose CBD. OSHA is also amending the definition determination that adding the term OSHA expects that these are the tests of chronic beryllium disease. For the ‘‘granulomatous’’ to the definition will that would most commonly be purposes of this standard, the agency is better distinguish CBD from other requested for a CBD evaluation. using the term chronic beryllium occupationally associated chronic Therefore, the agency is revising the disease to mean a chronic pulmonary diseases. As OSHA definition to clarify that the CBD granulomatous lung disease caused by explained in the preamble to the 2017 diagnostic center must simply have the inhalation of airborne beryllium by an final rule, the formation of the type of ability to perform each of these tests individual who is beryllium sensitized. lung granuloma specific to a beryllium when deemed appropriate. These OSHA is finalizing the definition as immune response can occur only in changes clarify the definition of CBD proposed. It includes several changes to those with CBD (82 FR at 2492–2502). diagnostic center, and OSHA expects the 2017 final rule’s definition of Several commenters expressed they will maintain safety and health chronic beryllium disease, which was ‘‘a concern that the proposed definition of protections for workers. chronic lung disease associated with chronic beryllium disease does not Materion submitted comments exposure to airborne beryllium’’ (82 FR provide sufficient information to guide supporting OSHA’s intent to specify the at 2645–46). The revisions serve to diagnosis of CBD, and specifically that required capacities of a CBD diagnostic differentiate CBD from other respiratory OSHA’s emphasis on the role of center, rather than the contents of a CBD diseases associated with beryllium sensitization in the development of CBD evaluation, in the definition of CBD exposure (e.g., lung cancer) and to make may confuse diagnostic efforts. The ATS diagnostic center (Document ID 0038, clear that beryllium sensitization and noted that demonstrating beryllium pp. 16–17). NJH expressed concern that the presence of beryllium in the lung are sensitization may be challenging in this change to the definition may essential in the development of CBD certain settings and recommended that indicate that the clinical evaluation for (see 82 FR at 2492). OSHA’s definition of chronic beryllium CBD need not include certain aspects of First, OSHA is adding the term disease use the diagnostic criteria for a CBD evaluation, which NJH, the ‘‘granulomatous’’ to the definition. A CBD outlined in a 2014 ATS document Association of Occupational and granulomatous lung formation is a focal on diagnosis and management of Environmental Clinics (AOEC), and the collection of inflammatory cells (e.g., T- beryllium sensitivity and CBD (‘‘the ATS recommend should typically cells) creating a nodule in the lung (see ATS Statement’’). These diagnostic include full pulmonary function testing Ohshimo et al., 2017, Document ID criteria include confirmation of an (lung volumes, spirometry, and OSHA–H005C–2006–0870–2171, p. 2). immune response to beryllium and diffusion capacity for carbon The formation of the type of lung granulomatous lung inflammation using monoxide), chest imaging, and granuloma specific to a beryllium lung biopsy and emphasize the various cardiopulmonary exercise testing, and immune response can occur only in approaches which may be used may also include bronchoscopy in some those with CBD (82 FR at 2492–2502). ‘‘[d]epending on the clinical setting, cases (Document ID 0022, p. 3; 0028, p. Next, OSHA is removing the phrase feasibility of certain diagnostic tests, 2; 0021, pp. 1–2). Similarly, the ATS ‘‘associated with airborne exposure to and degree of diagnostic certainty commented that not requiring certain beryllium’’ and replacing it with needed’’ (Document ID 0021, p. 5). diagnostic tests ‘‘could reduce the ‘‘caused by inhalation of airborne DOSH similarly emphasized that potential to diagnose CBD and beryllium.’’ This change is more individuals may be diagnosed with CBD determine disease severity’’ (Document consistent with the findings in the 2017 without a confirmed positive BeLPT ID 0021, p. 3). NJH recommended that final rule that beryllium is the causative result and advocated that the definition OSHA require the ATS agent for CBD and that CBD occurs only of chronic beryllium disease ‘‘ensure recommendations for diagnostic after inhalation of beryllium (82 FR at employers and medical providers are evaluation, which the NJH stated 2513). Finally, OSHA is clarifying that given a clear expectation of how include the BeLPT; pulmonary function CBD is caused by inhalation of airborne beryllium conditions are properly testing and chest imaging; and in some beryllium ‘‘by an individual who is identified’’ (Document ID 0023, p. 2). cases bronchoscopy (Document ID 0022, beryllium sensitized.’’ Along with the OSHA notes that the standard’s p. 3). revised definition of beryllium definition of chronic beryllium disease As explained below in the Summary sensitization discussed above, this is not intended to provide criteria for and Explanation of paragraph (k)(7), that revision emphasizes to employers and the diagnosis of CBD. The agency’s provision—which establishes the employees the role that beryllium intent is to provide readers who may substantive requirements for the sensitization plays in the development have little or no familiarity with CBD evaluation at the CBD diagnostic of CBD. with a general understanding of the center—makes clear that the employer NJH, the USW, and Materion agreed term, rather than to provide diagnostic must offer any tests that the examining with OSHA that the 2017 final criteria for healthcare professionals in physician at the CBD diagnostic center standard’s definition of chronic addressing CBD. deems appropriate. The definition of beryllium disease should be clarified. Due to differences in individual cases CBD diagnostic center in paragraph (b) Materion supported the changes OSHA and circumstances, medical specialists does not alter this requirement. In light proposed, which it characterized as a may need to apply somewhat different

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testing regimens and/or diagnostic DOSH nor the ATS contend that technical definition for diagnostic use. criteria to different individuals they OSHA’s definition is inaccurate. The suggested addition is not necessary evaluate for CBD. Furthermore, the Furthermore, as OSHA explained to describe the nature of CBD in general diagnostic tools and criteria available to previously in its discussion of the terms. With the addition of the term medical specialists may change over beryllium sensitization definition, the ‘‘granulomatous,’’ the definition is time. As discussed in the Summary and agency believes that a correct sufficiently specific for OSHA’s Explanation for paragraph (k)(7), OSHA understanding of the relationship purposes in the context of paragraph (b). believes that the physician at the CBD between beryllium sensitization and In summary, for the purposes of this diagnostic center should have the CBD is key to workers’ and employers’ standard OSHA is defining chronic latitude to use any tests he or she deems understanding of many provisions of the beryllium disease as a chronic appropriate for the purpose of beryllium standard. By stating the role granulomatous lung disease caused by diagnosing or otherwise evaluating CBD that sensitization plays in the inhalation of airborne beryllium by an in a patient, and has revised paragraph development of CBD in the standard’s individual who is beryllium sensitized. (k)(7) to make this clear. Therefore, definition of chronic beryllium disease, This definition is identical to the OSHA has determined that it is neither OSHA intends to convey clearly to the definition of chronic beryllium disease necessary nor appropriate to specify regulated community why protecting OSHA proposed in 2018 and includes diagnostic criteria in the beryllium workers from becoming beryllium only minor changes from the definition standard’s definition of chronic sensitized is key to the prevention of included in the 2017 final standard. beryllium disease. Instead, OSHA has CBD and why workers who are OSHA is providing this definition to decided to retain a definition that confirmed positive for beryllium enhance stakeholders’ general provides the reader with a general sensitization should be offered both a understanding of the beryllium understanding of the term. clinical evaluation for CBD and medical standard; it is neither intended nor NJH suggested that the agency define removal protection. suitable to provide guidance to medical chronic beryllium disease as a disease OSHA acknowledges that it is not professionals on the diagnosis of CBD. ‘‘characterized by evidence of always necessary to identify a worker as OSHA expects these changes to the 2017 granulomatous lung inflammation in an confirmed positive for beryllium definition of chronic beryllium disease individual who is sensitized to sensitization using the BeLPT as part of will clarify the standard, and will beryllium.’’ According to NJH, this a diagnosis of CBD and that the BeLPT therefore maintain safety and health definition would allow for diagnosis can yield false-negative results in some protections for workers. based on different combinations of individuals. For this reason, an Confirmed positive. clinical evaluation results as detailed examining physician should have the OSHA is amending the definition of the ATS Statement (Document ID 0022, latitude to diagnose CBD even in the confirmed positive to mean (1) the p. 3). OSHA believes that the definition absence of a ‘‘confirmed positive’’ person tested has had two abnormal the agency proposed—a chronic pattern of BeLPT results. As explained BeLPT test results, an abnormal and a granulomatous lung disease caused by in the Summary and Explanation of borderline test result, or three inhalation of airborne beryllium by an paragraph (k)(7) of the 2017 final rule, borderline test results, obtained from individual who is beryllium that provision gives the examining tests conducted within a three-year sensitized—conveys the substance of physician this latitude (82 FR 2704, period; or (2) the result of a more NJH’s recommended definition while 2709). Because the substantive reliable and accurate test indicating a also emphasizing that CBD results from provisions of the standard leave the person has been identified as having the inhalation of airborne beryllium. examining physician discretion in beryllium sensitization. The revised OSHA has therefore decided not to diagnosing CBD, OSHA does not agree definition includes several changes to adopt the definition NJH suggested. that acknowledging the role of the 2017 definition of confirmed The ATS expressed concern that beryllium sensitization in the positive and one change from the OSHA’s proposed changes to the development of CBD will result in definition of confirmed positive that definition of chronic beryllium disease diagnostic confusion. OSHA proposed in the 2018 NPRM. could create confusion in the diagnosis The NSSP recommended the First, the agency is removing the of CBD because it may be challenging in following addition to OSHA’s proposed phrase ‘‘beryllium sensitization’’ from certain settings to identify sensitization definition of chronic beryllium disease: the first sentence of the definition, and granulomatous lung disease based ‘‘The presence of interstitial which previously stated that a person is on lung pathology (Document ID 0021, mononuclear cell (T cell) infiltrates confirmed positive if that person has p. 5). DOSH similarly commented that (lymphocytosis) is characteristic of beryllium sensitization, as indicated by the proposed definition may be chronic beryllium disease’’ (Document two abnormal BeLPT test results, an misleading because, although those with ID 0027, pp. 3–4). The NSSP argued that abnormal and a borderline test result, or CBD have sensitization to beryllium, the the presence of these infiltrates on lung three borderline test results. OSHA current testing for sensitization has a biopsy indicates the presence of chronic intends that confirmed positive act only high false-negative rate and individuals beryllium disease, and should therefore as a trigger for requirements such as may be diagnosed with CBD without be included in the standard’s definition continued medical monitoring and first being confirmed positive for (Document ID 0027, p. 4). OSHA surveillance for the purposes of this beryllium sensitization (Document ID disagrees. The agency believes that the standard, and not as a general-purpose 0023, p. 2). term ‘‘granulomatous’’ sufficiently definition of beryllium sensitization. By Although OSHA agrees that addresses the presence of T-cell removing the phrase ‘‘beryllium employees may be diagnosed with CBD infiltrates, which occur at an early stage sensitization’’ from the first sentence of without confirmed positive BeLPT in the development of granulomas (82 the definition, the agency hopes to results, the agency does not agree with FR at 2492–2502). As discussed avoid confusion resulting from scientific these commenters that references to previously, OSHA’s intent in defining disagreements over whether certain test sensitization should be excluded from chronic beryllium disease is to provide results, such as three borderlines, the definition of chronic beryllium the reader a general understanding of necessarily prove that sensitization has disease. OSHA first notes that neither what CBD is, rather than provide a occurred. For purposes of the beryllium

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standard, any worker with the BeLPT p. 2). The ATS further stated without findings of two abnormal, one abnormal test results specified in the definition of explanation that removing the term and one borderline, or three borderline confirmed positive should be offered an ‘‘beryllium sensitization’’ from the results need to occur from BeLPTs evaluation for CBD with continued definition of confirmed positive would conducted within a three-year period. medical surveillance as well as the reduce worker protections.13 The NSSP This change in the definition of option of medical removal protection, also expressed disagreement with confirmed positive differs from the even though some small percentage of OSHA’s proposal to remove ‘‘beryllium proposal and is based on comments workers who are confirmed positive by sensitization’’ from the first part of the submitted to the record following this definition may not in fact be confirmed positive definition, but did publication of the 2018 NPRM. sensitized to beryllium, as is the case for not state the reasons for their concern The 2017 final rule did not specify a any diagnostic test (Middleton et al., (Document ID 0027, p. 3). time limit within which the BeLPT tests 2008 (Document ID OSHA–H005C– Following consideration of the that contribute toward a finding of 2006–0870–0480, p. 4)).12 concerns raised by these organizations, ‘‘confirmed positive’’ must occur. After Both the USW and Materion OSHA disagrees that removing the publication of the 2017 final rule, supported this proposed revision. The phrase ‘‘beryllium sensitization’’ from stakeholders suggested to OSHA that the USW stated that the former definition of the first sentence of the definition of definition of confirmed positive could confirmed positive had acted ‘‘as a de confirmed positive will create confusion be interpreted as meaning that findings facto definition of sensitization’’ and or reduce worker protections. The of two abnormal, one abnormal and one that removing the phrase from this provisions of the standard intended to borderline, or three borderline results portion of the definition ensures that a benefit workers who may be sensitized over any time period, even as long as 10 finding of confirmed positive will (evaluation at a CBD diagnostic center years, would result in the employee trigger medical surveillance and and medical removal protection) are being confirmed positive and medical removal protection ‘‘without an available to all workers who meet the automatically referred to a CBD intermediate stop at a finding of definition of confirmed positive. diagnostic center for evaluation. As sensitization’’ (Document ID 0033, p. 5). Therefore, removing the term discussed in the preamble to the 2017 Similarly, Materion commented that the ‘‘beryllium sensitization’’ from the first standard, clinical evaluation for CBD revised definition allows individuals sentence of the definition will not involves bronchoalveolar lavage and with three borderline BeLPT results to change the access to these benefits for biopsy (82 FR at 2497) which, like all obtain the protections of the standard, any workers. By removing the term invasive medical procedures, carry risks 14 including evaluation for CBD and ‘‘beryllium sensitization’’ from the first of infection and other complications. medical removal protection, without sentence of the definition, OSHA seeks Given such risks, and the possibility necessarily being ‘‘declared sensitized’’ to ensure that workers with three that some repeat abnormal or borderline (Document ID 0038, p. 18). Materion borderline BeLPT results (or other results obtained over a long period of further asserted that the change patterns of test results that some time could be false positives, it was not enhances employee protection by physician or other licensed health care the agency’s intent that workers with increasing the number of persons professionals (PLHCPs) may consider rarely recurring abnormal or borderline eligible for further testing (Document ID ambiguous) will receive the benefits of BeLPT results should necessarily 0038, p. 19). the standard regardless of whether their proceed to evaluation at a CBD NJH opposed the revised definition, PLHCP views their results as firm diagnostic center unless recommended asserting that the removal of the phrase evidence of sensitization. Furthermore, to do so by their examining physician. ‘‘beryllium sensitization’’ could prevent OSHA disagrees that removing the At the same time, OSHA notes that individuals who meet the definition of reference to ‘‘beryllium sensitization’’ under paragraph (k)(5)(iii), the licensed being confirmed positive from being will lead to confusion about what the physician performing the BeLPT testing identified as sensitized. NJH further BeLPT results are supposed to indicate retains the discretion to refer an expressed concern that this could make because the second sentence of the employee to a CBD diagnostic center if it difficult for some workers to access definition of confirmed positive makes the licensed physician deems it the medical testing and workplace clear that a worker who has been appropriate, regardless of the BeLPT protections required by the rule diagnosed with beryllium sensitization result. In the 2018 NPRM OSHA proposed (Document ID 0022, p. 4). would also meet the definition of that any combination of test results The ATS and the AOEC also confirmed positive: ‘‘It [confirmed specified in the definition of confirmed disagreed with the removal of the positive] also means the result of a more positive must result from the tests phrase ‘‘beryllium sensitization’’ from reliable and accurate test indicating a conducted in one cycle of testing, the definition of confirmed positive, person has been identified as having including the initial BeLPT and the stating the medically accepted beryllium sensitization.’’ An additional change to the definition follow-up retesting offered within 30 interpretation of BeLPT testing results is of confirmed positive provides that the days of an abnormal or borderline result that they indicate beryllium (paragraph (k)(3)(ii)(E)). As outlined in sensitization, and that removing this 13 The ATS also asserted that the removal of the proposed paragraph (k)(3)(ii)(E), an phrase may cause confusion about what phrase ‘‘beryllium sensitization’’ would reduce employee would be offered a follow-up condition the term confirmed positive workers’ right to file for worker’s compensation BeLPT within 30 days if the initial test refers to (Document ID 0021, p. 3; 0028, (Document ID 0021, p. 3). The ATS did not explain how the definition of confirmed positive in the result is anything other than normal, beryllium standard could affect worker’s unless the employee had been 12 In the preamble to the 2017 final rule, OSHA compensation claims and at least one other confirmed positive (e.g., if the initial found that three borderline BeLPT results recognize commenter questioned the ATS’s assertion (see a change in a person’s immune system with respect Document ID 0038, p. 19). Regardless, OSHA to beryllium exposure based on Middleton et al.’s intends the definition of confirmed positive to serve 14 Bronchoalveolar lavage is a method of 2011 finding that three borderline BeLPT results only as a trigger for certain provisions of the ‘‘washing’’ the lungs with fluid inserted via a have a positive predictive value (PPV) of over 90 beryllium standard. How OSHA defines this phrase flexible fiberoptic instrument known as a percent (82 FR at 2501), and therefore the agency for purposes of the beryllium standard in no way bronchoscope, removing the fluid and analyzing the included three borderline results in the criteria for limits healthcare professionals’ ability or incentive content for the inclusion of immune cells reactive confirmed positive (82 FR at 2646). to diagnose beryllium sensitization. to beryllium exposure (82 FR at 2497).

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BeLPT was performed on a split sample the change ‘‘increases employee results (Document ID OSHA H005C– and showed two abnormal results). protections by establishing an employee 2006–0870–1360, pp. 610–12). These Thus, for example, if an employee’s as confirmed positive in a shorter time findings suggest a high rate of false- initial test result was abnormal, and the frame, thus, making the medical negative results and are consistent with result of the follow-up testing offered to removal benefit option available to the results reported in a study by Stange et confirm the initial test result was worker in a more timely manner’’ al. (2004). That study found an average abnormal or borderline, the employee (Document ID 0038, p. 19). Stakeholders false-positive rate of 1.09 percent, and a would be confirmed positive. from the medical community disagreed false-negative rate of 27.7 percent for the Alternatively, if the result of the follow- and raised concerns that limiting test BeLPT (Document ID OSHA–H005C– up testing offered to confirm the initial results to one test cycle would affect the 2006–0870–1402, p. 459). abnormal test result was normal, the ability to identify workers who should Other public health organizations, employee would not be confirmed be referred for a CBD evaluation and including DOSH, the ATS, the NSSP, positive. Any additional abnormal or receive other protections under the and the AOEC, agreed with NJH that borderline results obtained from the standard. workers who are sensitized to beryllium next required BeLPT for that employee The NSSP cited data from healthcare may show varying test results over time; (typically, two years later) would not providers to demonstrate that a 30-day and restricting the time period for identify that employee as confirmed testing cycle is insufficient to properly determining ‘‘confirmed positive’’ status positive under the proposed identify sensitized workers. According to 30 days would cause sensitized modification to confirmed positive. to the NSSP, in over 20 years of individuals to go undetected (Document OSHA requested comments on the conducting BeLPTs in worker ID 0023, p. 2; 0021, p. 2; 0027, p. 3; appropriateness of this proposed time populations, Oak Ridge Associated 0028, p. 2). The ATS and the AOEC period. Universities observed approximate recommended that results from tests Several stakeholders, including median times of 45 days (range of 3 days performed up to at least three years after Materion, NJH, the ATS, DOSH, the to 16 years) between first and second the initial abnormal or borderline test NSSP, the AOEC, the USW, and The abnormal tests, 1.5 years (range of 30 result should be used to determine American College of Occupational and days to 11 years) for the abnormal/ whether the person tested is confirmed Environmental Medicine (ACOEM), borderline test combination, and 1 year positive for beryllium sensitization submitted comments regarding OSHA’s (range of 30 days to 11 years) for three (Document ID 0021, p. 2; 0028, p. 2). proposal to require that the test results borderlines (Document ID 0027, p. 3). The ATS stated that a timeframe of at specified in the agency’s definition of Under the proposed 30-day least three years, which encompasses confirmed positive must occur within a requirement, the NSSP stated that the two rounds of regularly scheduled single testing cycle. Commenters majority of workers who have been testing required biennially by the focused on several aspects of the identified as sensitized in the past beryllium standard, would adequately proposed timing. First, many of the would not meet the proposed definition address its concerns regarding logistical comments focused on the logistics of of confirmed positive (Document ID feasibility, would improve diagnostic OSHA’s proposed change. Materion 0027, p. 3). accuracy, and help ensure that supported the proposed definition of NJH reported similar findings in new sensitized workers are identified confirmed positive, stating that a 30-day evidence submitted to the record (Document ID 0021, p. 4). The AOEC allowance for follow-up testing after a (Document ID 0022, pp. 4–5). The agreed that consideration of BeLPT test first abnormal or borderline BeLPT evidence indicates that many workers results obtained during a time period of result is appropriate to ensure that who develop CBD have abnormal or at least three years ‘‘will increase the testing is completed in a timely manner borderline results that do not potential that workers are accurately (Document ID 0038, p. 17). However, immediately repeat upon retesting. To diagnosed with beryllium sensitization NJH, the ATS, ACOEM, the USW, and the contrary, many CBD patients have a [and] will receive the necessary care’’ the NSSP all indicated that requiring series of tests which alternate between (Document ID 0028, p. 2). results with a 30-day testing cycle could normal and abnormal. Data based on The approaches recommended by the create logistical challenges, for example NJH’s extensive experience show that ATS and the AOEC are similar to the due to repeat testing requirements or for the BeLPT does not yield consistently approach NJH used in providing businesses in remote areas with limited abnormal results among CBD patients. medical surveillance consultation to healthcare facilities (Document ID 0022, Of 194 patients diagnosed with CBD at workforces that use beryllium. NJH p. 4; 0021, p. 4; 0024, p. 1; 0033, p. 5; NJH, the length of time between stated that, if an individual’s BeLPT 0027, p. 3). In this final rule and abnormal results ranged from 14 days to results are abnormal and normal on preamble, OSHA clarifies that it did not 5.8 years, with a 95th percentile of 2.9 their initial round of BeLPT testing, they intend that the initial and follow-up years. In this group, 150 patients (or 77 will usually request another BeLPT tests had to be completed and percent) would not have been evaluated within a month. If the result of that test interpreted within 30 days. It intended for CBD if two abnormal BeLPT results is normal, they do not request further that the test results used to determine if were required to occur within a 30-day testing until the next regularly a worker is confirmed positive be testing cycle (Document ID 0022, p. 5). scheduled BeLPT. If the result of the obtained during one cycle of testing Although the information the NSSP next regularly scheduled BeLPT comes (i.e., an initial or periodic examination), and NJH submitted to the record is back abnormal, they refer the worker for including follow-up testing conducted unpublished, their findings are clinical evaluation even though the tests within 30 days of an abnormal or consistent with published studies. are separated by the two-year testing borderline result. Kreiss et al. (1997) reported that nine cycle (Document ID 0022, p. 5). Secondly, stakeholders commented individuals had initial abnormal BeLPT Following consideration of the on the appropriateness of limiting the results followed by two normal tests; six comments and of the new evidence use of the BeLPT from one test cycle in of those individuals were re-tested submitted to the record following the determining if a worker is confirmed approximately one year later and four proposal, OSHA is convinced that some positive. Materion agreed with the were confirmed positive for beryllium workers who are ultimately found to be proposed timing and commented that sensitization based on abnormal BeLPT sensitized to beryllium or diagnosed

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with CBD may have alternating Only other than normal BeLPT results weight; or (3) visible dust, fumes, or abnormal and normal BeLPT results, must be followed up within 30 days of mists containing beryllium in and that the time period for abnormal or the same test cycle (i.e., an initial or concentrations greater than or equal to borderline results to repeat can be periodic medical examination). 0.1 percent by weight. The definition months or years. OSHA is also As an example, an employee who also states that handling of beryllium convinced that requiring two abnormal, receives a borderline result during one materials in non-particulate solid form an abnormal and borderline, or three periodic examination conducted in 2020 that are free from visible dust containing borderline results to occur in one cycle would be retested within 30 days, and beryllium in concentrations greater than of an initial or periodic exam before an if the follow-up test is normal, testing or equal to 0.1 percent by weight is not employee can be confirmed positive would stop. That employee would be considered dermal contact under the could result in beryllium sensitization offered another BeLPT at the next standard. Several of the standard’s or CBD going undetected in many periodic examination conducted in provisions are triggered where an employees. This is demonstrated by the 2022. However, if the result of the 2022 employee has, or can be reasonably unpublished data submitted by NJH test is borderline, the employee would expected to have, dermal contact with showing that a substantial percentage of be retested within 30 days of that test beryllium. These include provisions in individuals with CBD (77 percent) may result receipt, and if the follow-up test paragraph (f), Written exposure control not have been referred for further testing is borderline, the employee would be plan; paragraph (h), Personal protective based on results obtained within a 30- confirmed positive because of receiving clothing and equipment (PPE); day cycle of testing and is confirmed by three borderline tests within three years. paragraph (i), Hygiene areas and the experience of the NSSP. Therefore, A three-year period for the employee to practices; paragraph (k), Medical OSHA finds that its proposed change be confirmed positive would ensure surveillance; and paragraph (m), would have the unintended and sufficient time for such follow-up tests Communication of hazards. unacceptable consequence of reducing that may need to be conducted over two This final rule makes two changes to employee protections because some cycles of medical examinations. the previous definition, which was employees who are sensitized or have DOD recommended changing the term added to the standard through the 2018 CBD would be deprived of the benefits ‘‘confirmed positive’’ to another term direct final rule (83 FR at 19940) available through the standard, such as such as ‘‘confirmed non-negative,’’ following OSHA’s promulgation of the a timely evaluation at a CBD diagnostic ‘‘confirmed finding of concern,’’ or final rule in January 2017. That direct center. In addition, requiring that results ‘‘pattern of concern.’’ According to the final rule defined dermal contact with be obtained in one test cycle is not DOD, the term ‘‘confirmed positive’’ beryllium as skin exposure to soluble consistent with the approaches typically ‘‘implies an initial positive test beryllium compounds, beryllium currently applied or supported by the that was repeated with another test or solutions, or dust, fumes, or mists medical community. another, more sensitive test, which containing beryllium, where these For these reasons, OSHA is revising confirms the initial positive test result’’ materials contain beryllium in the definition of confirmed positive to (Document ID 0029, p. 2). The CBD concentrations greater than or equal to specify that the findings of two literature, however, commonly treats 0.1 percent by weight (83 FR at 19940). abnormal, one abnormal and one individuals as confirmed positive for First, this final rule modifies the borderline, or three borderline results sensitization through sequentially definition to refer to ‘‘visible’’ dust, must be obtained from BeLPTs conducted BeLPTs (see, for example, the fumes, or mists containing beryllium in conducted within a three-year period. ATS Statement on Diagnosis and concentrations greater than or equal to OSHA agrees with the ATS and the Management of Beryllium Sensitivity 0.1 percent by weight. Second, OSHA is AOEC that a three-year period will and Chronic Beryllium Disease, ATS adding a sentence to the definition facilitate the identification of sensitized 2014, Document ID OSHA–H005C– specifying that handling beryllium workers enrolled in medical 2006–0870–0364, p. e41; see also materials in non-particulate solid form surveillance (see Document ID 0022, p. Document ID OSHA–H005C–2006– that are free from visible dust containing 5; 0028, p. 2). In addition, this approach 0870–1543, 0603, 0398, 1403, 1449). beryllium in concentrations greater than is consistent with the practices and Additionally, OSHA again emphasizes or equal to 0.1 percent by weight is not recommendations from the medical that terms defined in the beryllium considered dermal contact with community, including NJH, which standard are defined only for purposes beryllium under the standard. This final provides beryllium-related medical of the standard and are not intended as rule’s definition of dermal contact with surveillance consultation. OSHA diagnostic, scientific, or all-purpose beryllium is identical to the definition believes that allowing a worker to be definitions. OSHA believes that its that OSHA proposed in the 2018 NPRM. confirmed positive based on BeLPT definition of confirmed positive clearly The revisions incorporated in this results obtained over a three-year time indicates what that term means for definition are intended to help period strikes a reasonable balance that purposes of the beryllium standard and employers more accurately identify would allow a timely evaluation for therefore disagrees with DOD’s concern areas where the provisions triggered by CBD, while at the same time, that the term may cause confusion. dermal contact apply. Based on maintaining OSHA’s original intent that Accordingly, OSHA is retaining the feedback OSHA received from a confirmed positive finding not be term ‘‘confirmed positive’’ in this final stakeholders following publication of based on results obtained over an standard. the 2017 final standard, OSHA became indefinite time period. Dermal contact with beryllium. concerned that employers might have OSHA emphasizes that this revision Paragraph (b) of this final rule defines difficulty accurately identifying when does not modify the requirements of dermal contact with beryllium as skin and where the provisions triggered by paragraph (k)(3)(ii)(E). Under that exposure to (1) soluble beryllium dermal contact are required. Beryllium- paragraph, if the results of the BeLPT compounds containing beryllium in generating processes can release are other than normal, a follow-up concentrations greater than or equal to beryllium in varying particle sizes and BeLPT must be offered within 30 days 0.1 percent by weight; (2) solutions amounts, some of which are visible to of receiving the results, unless the containing beryllium in concentrations the naked eye and some of which are employee has been confirmed positive. greater than or equal to 0.1 percent by not. OSHA was concerned that

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employers could reasonably interpret Century Aluminum Company engineering and work practice controls the provisions triggered by dermal (Century Aluminum) (Document ID or respiratory protection. The standard’s contact with beryllium (e.g., the use of 0026, p. 2) and DOD (Document ID permissible exposure limits and PPE) as extending to every employee 0029, p. 1) also agreed with the proposal requirements for quantitative exposure who could potentially encounter a to add the term ‘‘visible’’ to the assessments and use of respiratory minute and non-visible amount of definition. However, DOD protection are of paramount importance beryllium particulate at its facility, recommended that OSHA revise the for ensuring that workers are protected irrespective of the employee’s job duties definition to explicitly identify skin from CBD, and these requirements are and tasks, or who might handle an exposure to ‘‘visible dust that has unaffected by the changes to the dermal object containing beryllium. Such an accumulated on surfaces’’ in addition to contact with beryllium definition. In interpretation would be contrary to visible dust, fumes, or mists containing addition, the standard’s requirements to OSHA’s intent and could prompt beryllium in concentrations greater than train workers on the health hazards of employers to attempt infeasible or equal to 0.1 percent by weight. OSHA exposure to beryllium and on the compliance measures. Therefore, as does not believe this added phrase is employer’s exposure control plan explained in the 2018 NPRM, OSHA necessary. The definition of dermal (paragraph (m)(4)) apply to all proposed adding the term ‘‘visible’’ to contact with beryllium does not employees within the scope of the clarify when skin exposure to distinguish the exposure routes that general industry standard who have, or beryllium-containing dust, fumes, or cause the skin exposure and, as can reasonably be expected to have, mist should be considered dermal proposed, the phrase ‘‘visible dust’’ airborne exposure (regardless of the size contact with beryllium for the purpose encompasses exposures via both air and fraction) to or dermal contact with of triggering the standard’s surface contamination. beryllium, thus including all workers requirements. OSHA also proposed The ATS commented that adding that would be considered to be adding a sentence to state that handling ‘‘visible’’ to the definition to trigger potentially at risk of beryllium-related of beryllium materials in non- provisions related to dermal contact disease.15 particulate solid form that are free from ‘‘could be helpful,’’ but cautioned that DOSH advocated for surface sampling visible dust containing beryllium in inhalation of beryllium particulate that as being a ‘‘practical method’’ for concentrations greater than or equal to is not visible is ‘‘the major concern’’ for assessing exposure and asserted that 0.1 percent by weight is not considered developing CBD (Document ID 0021, p. adopting a ‘‘specific numerical surface ‘‘dermal contact with beryllium’’ under 5). It urged OSHA to ensure that the contamination criterion’’ to assess the standard. revised definition neither undermines dermal contact hazard was a more the requirements of the beryllium protective strategy. DOSH further Several commenters supported standard which limit exposure to revising the definition of dermal contact suggested that, in establishing this respirable beryllium, nor limits numerical criterion, OSHA ‘‘consider with beryllium to apply to visible education on the health effects of levels that could result in uptake of particulate, agreeing that the revised beryllium to only those workers with beryllium by workers at rates similar to definition would facilitate compliance exposure to visible dust (Document ID action level airborne exposures’’ with the standard. In its submission, 0021, p. 5). Materion stated that the proposed NJH objected to OSHA’s proposal to (Document ID 0023, p. 2). change to the definition ‘‘clears up the restrict the definition to visible dust, With respect to inhalation hazards ambiguity and eliminates the vagueness fumes, and mists, believing that doing associated with beryllium, OSHA agrees of the [previous] . . . standard,’’ and so could reduce employee protections that relying on the visibility of that from beryllium-induced sensitization particulate does not adequately protect workers from CBD or lung cancer, and Revising the standard to provide and disease (Document ID 0022 p. 7). employees as well as employers clear lines NJH commented that the smallest that both conducting routine air will likely immeasurably help not only with respirable particles are not visible and sampling and ensuring no employees compliance but with enforcement of the are inhaled into the deepest part of the are exposed to airborne beryllium in standard. Without the visible cue, employees lung. It further commented that a excess of the PELs are essential to will have no idea whether and when they ‘‘monitoring program that routinely minimizing workers’ exposures to should be protected by PPE.... OSHA has samples all departments with air and airborne particulate. The TWA PEL for fixed this problem with a sensible and clear beryllium is based on robust evidence demarcation threshold for dermal contact, wipe samples can accomplish identifying ‘nonvisible’ dust from studies of beryllium workers that and has done so in a manner that does not permitted the agency to determine that sacrifice protection against the risk of CBD. contamination and should be part of any industry that needs to comply with an there is significant risk of sensitization, (Document ID 0038, p. 21). Similarly, exposure limit’’ (Document ID 0022, p. CBD, and lung cancer associated with the USW stated that dermal exposure to 7). Other commenters voiced similar the previous TWA PEL, and that this beryllium needed to be ‘‘properly concerns about the risk posed by addressed,’’ but that triggering exposure to ultrafine particles 15 NJH also asserted that ‘‘[a]ll workers in a provisions by dermal contact with containing beryllium, including the beryllium using industry should receive beryllium education with programs tailored to specific jobs materials containing beryllium at any NSSP (Document ID 0027, p. 3), the and processes’’ (Document ID 0022, p. 7). Mount level ‘‘could extend the application of AOEC (Document ID 0028, p. 2), and Sinai Selikoff Centers for Occupational Health the standard far beyond what OSHA DOSH (Document ID 0023, p. 2). similarly advocated for ‘‘intensive training and intended or what is necessary to protect OSHA agrees that exposure to protective gear for all workers who may be at risk of beryllium exposure’’ (Document ID 0032, p. 3). workers’’ (Document ID 0033, p. 4). The airborne beryllium, even when not OSHA notes that the beryllium standard has never USW referred to non-sparking tools visible to the naked eye, is an important required all workers in a beryllium-using industry made from beryllium-copper alloy and risk factor for developing CBD and that to receive training. Rather, the standard has always beryllium foil used for x-ray windows as it would be inappropriate to rely on the required training for those workers who have or are reasonably expected to have airborne exposure to examples of materials where dermal presence of visible airborne particulate beryllium regardless of the size fraction. The contact should not trigger provisions of to assess workers’ exposure to airborne standard continues to require training for all such the standard (Document ID 0033, p. 4). beryllium and the need to implement workers.

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risk would be substantially reduced by finished beryllium products only by the a reasonable expectation that the new PEL (82 FR at 2545–52). presence of visible dust, asserting that oxidization may result in visible surface Unlike the case for inhalation, the gloves are warranted because beryllium contamination, an employer must not available data on the effects of dermal could oxidize on the surface (Document wait for the surface to be contaminated contact with beryllium make it difficult ID 0022, p. 7). However, for the reasons to require PPE for potentially exposed to establish a reasonably precise, explained below, OSHA considers these employees. For example, if the surface objective limit on surface contamination comments to be beyond the scope of the of a solid object must be heat treated, above which protective measures proposal. The agency also notes that the and the employer has reason to believe should be triggered. The most recent revision NJH’s comment refers to merely this will result in surface oxidation effort to derive a health-based measure clarifies the meaning of the 2017 absent cleaning the surface, PPE would of surface cleanliness for beryllium was standard, rather than modifying it be required under this final rule. that of Shay et al. (Document ID H005C– substantively. After carefully considering the record 2006–0870–0417), who used models OSHA’s revision to the definition of of public comments on this topic, OSHA that accounted for particulate dermal contact with beryllium clarifies finds that the revised definition of dissipation, resuspension into air, OSHA’s intent that the provisions in the dermal contact with beryllium will transfer efficiency from surface to skin, standard related to dermal contact with provide a clearer and more workable dermal absorption of particulate through beryllium do not apply to the handling definition, without reducing worker intact or damaged skin, and other of solid beryllium-containing objects protections. The specification of ‘‘visible factors. The authors used these models that the employer does not process, dust, fumes, or mists containing along with both oral and inhalation unless visible beryllium particulate has beryllium in concentrations greater than toxicity values derived by the contaminated the surface of the object. or equal to 0.1 percent by weight’’ and Environmental Protection Agency to OSHA explained in the 2017 final rule clarification regarding beryllium- relate the level of surface contamination that beryllium-containing solid objects, containing articles will allow employers to target risk values for cancer and or ‘‘articles,’’ with uncompromised to accurately identify the employees, noncancer effects that would generally physical integrity are unlikely to release particularly those working outside of be considered to be de minimis (i.e., an beryllium that would pose a health beryllium work areas or regulated areas, exposure associated with either a hazard for workers (82 FR at 2640). An to whom the provisions triggered by lifetime cancer risk of one death per article, by definition, ‘‘under normal dermal contact with beryllium apply, million persons exposed, or no excess conditions of use does not release more including the requirement in paragraph risk of adverse noncancer effects). After than very small quantities, e.g., minute (h) to provide employees with PPE to accounting for these factors, the or trace amounts of a hazardous protect against reasonably expected resulting surface dust cleanup criteria chemical ..., and does not pose a dermal contact with beryllium. The for each health endpoint ranged over physical hazard or health risk to revised definition will also render more several orders of magnitude, reflecting a employees’’ (29 CFR 1910.1200(c)). The workable the additional provisions in high degree of uncertainty (for the agency therefore excluded articles that the standard that are triggered by dermal noncancer endpoint, the criteria ranged contain beryllium, and that the contact with beryllium, which include from 5 to 370 mg/cm2 for damaged skin, employer does not process, from the provisions in paragraph (f), Written and from 17 to 3,337 mg/cm2 for intact scope of the 2017 beryllium standard exposure control plan; paragraph (i), skin; for cancer, the criteria ranged from (see paragraph (a)(3)). OSHA did not Hygiene areas and practices; paragraph 51 to 485 mg/cm2). intend for the 2018 NPRM to open the (k), Medical surveillance; and paragraph This study illustrates the difficulty in agency’s underlying findings on the (m), Communication of hazards. establishing a reliable and objective handling of beryllium-containing This final rule better addresses the risk-based limit on surface articles, nor their exclusion from the practical aspects of a ‘‘reasonable contamination that could be used to scope of the standard, for notice and expectation’’ trigger for PPE than did the trigger measures that would prevent comment. To the extent NJH’s comment previous rule, which could have been dermal contact with beryllium challenges the articles exemption, these read as effectively requiring employees particulate when such contact is comments are beyond the scope of the to wear PPE facility-wide, even when sufficient to contribute to a significant proposal. not in proximity to beryllium generating risk of disease. Absent an objective Nevertheless, even for those solid processes, such as in administrative measure, OSHA finds that it is beryllium-containing objects that do not offices. OSHA believes that use of PPE preferable to base the definition of fall under the definition of an article, in that circumstance is unwarranted and dermal contact with beryllium on a such as ingots that might be processed would not meaningfully enhance clear, qualitative indicator of when further, OSHA notes that PPE would be worker protections against beryllium dermal contact is occurring or is required if there is a reasonable exposure. Where an employer has a reasonably anticipated to occur so that expectation that oxidation may result in reasonable expectation that even very employers can have assurance that they visible surface contamination. In its small amounts of beryllium dust, fume, are in compliance with the provisions comments on the 2015 NPRM, Materion or mist might spread outside of that are triggered by dermal contact. explained that beryllium oxides are beryllium work areas, they might have Accordingly, the final rule’s definition created through particular interpreted the language of the previous of dermal contact with beryllium refers manufacturing processes, typically rule to require all employees in the to skin exposure to visible dusts, fumes, those involving heating of the facility to wear PPE all of the time. or mists, as well as to soluble beryllium-containing materials (e.g., hot OSHA did not intend and did not cost compounds and solutions of beryllium, forming operations, melting, or heat the previous rule as requiring PPE to as was proposed. As stated above, treating) (see Document ID OSHA– protect against dermal contact with non- OSHA expects that revisions in this H005C–2006–0870–1662, p. 16). These visible beryllium dust, fumes, or mists final rule will maintain worker operations may give rise to a reasonable outside of beryllium work areas. The protections. expectation of dermal contact due to the addition of a visual cue will enable NJH also objected to defining dermal expected oxidization that will occur as employers to accurately identify the contact with beryllium when handling a result of the process. Where there is employees outside of beryllium work

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areas who need to wear PPE due to their and that the surface and skin wipe Personal Protective Equipment reasonably-expected dermal contact samples may underestimate the mass of standards (subpart I of 29 CFR 1910) with beryllium. beryllium that is present. The Day study and provide their employees with As OSHA explained in the 2018 demonstrates that there is a correlation appropriate PPE. NPRM (83 FR at 63752), the agency between airborne and potential for skin Because it will help employers expects that the use of PPE will always exposures (Document ID OSHA– identify which employees have, or can be required in beryllium work areas H005C–2006–0870–1548, p. 79). be reasonably expected to have, dermal because both the operations listed in As OSHA discussed in the NPRM, contact with beryllium, the revised Appendix A and those that can be this finding is supported by a follow-up definition will allow employers to more reasonably expected to generate study by Armstrong et al. (2014) accurately comply with the requirement exposure at or above the action level conducted at four different Materion in paragraph (f)(1)(i)(A) to establish, would create a reasonable expectation of manufacturing locations over a wide implement, and maintain a written dermal contact with beryllium. This variety of jobs. This study also showed exposure control plan that includes a expectation is based, in part, on a study strong positive correlations between air, list of operations and job titles conducted by NIOSH and Materion and dermal, and surface exposures among reasonably expected to involve airborne published in the Journal of the four different facilities that process exposure to or dermal contact with Occupational and Environmental beryllium (Document ID OSHA–H005C– beryllium. OSHA expects that the list Hygiene (Document ID OSHA–H005C– 2006–0870–0502, p. 791). The study would likely include all operations and 2006–0870–0502, p. 791). In the 2018 further concludes that this correlation job titles in beryllium work areas, along NPRM, OSHA explained that this study implies that one type of measurement with any additional operations or job identified a strong correlation between can be indicative of other exposure titles for employees whose skin could be airborne beryllium concentrations and pathways. OSHA finds that these exposed to visible beryllium dust, the amount measured on gloves worn by studies demonstrate a correlation fumes, or mists in concentrations of 0.1 workers at multiple beryllium facilities between airborne exposure and the percent by weight or more. Under the and jobs, indicating the potential for reasonable expectation of dermal previous definition, employers could skin exposure where airborne beryllium contact.16 have reasonably interpreted the is present. The study further concluded In the 2018 NPRM, OSHA specifically standard as requiring them to list the job that this correlation implies that one requested comments on whether title for every employee at the facility type of measurement can be indicative processes exist that could trigger the who could come into contact with a of other exposure pathways (Document creation of a beryllium work area, but minute and non-visible amount of ID OSHA–H005C–2006–0870–0502, p. could be reasonably expected to release beryllium particulate, including 791). OSHA further explained that the only non-visible beryllium-containing employees who do not work in expectation of dermal contact within dusts, fumes, or mists. No commenter proximity to beryllium-releasing beryllium work areas is also based on provided evidence of such processes. processes. OSHA’s review of data collected during Materion asserted that OSHA should not Similarly, the revised definition will site visits conducted by the agency that ‘‘automatically classify’’ beryllium work facilitate employer compliance with the cover a wide range of processes (e.g., areas as having a reasonable expectation requirement to provide information and furnace and melting operations, casting, of dermal contact because this would training (in accordance with the Hazard grinding/deburring, machining and serve as ‘‘a serious disincentive for Communication standard (29 CFR stamping) and a wide range of materials employers to eliminate exposure 1910.1200(h)) to each employee who including beryllium composite, meeting the definition of dermal has, or can reasonably be expected to have, airborne exposure to or dermal beryllium alloy, and beryllium oxide. contact’’ (Document ID 0038, p. 15). contact with beryllium by the time of The data show that those operations that However, Materion did not explain how the employee’s initial assignment and would create a reasonable expectation of such a presumption would serve as a annually thereafter (paragraphs dermal contact, either through disincentive and, more importantly, did (m)(4)(i)(A)–(C)). Under this beryllium surface contamination or skin not identify any process that could requirement, employees entitled to contamination, are covered either by trigger the creation of a beryllium work training include all employees who proposed Appendix A or have area while not also, in fact, creating a work in beryllium work areas and any exposures above the action level (see reasonable expectation of dermal Document ID OSHA–H005C–2006– other employees who may not be contact. working directly with a beryllium- 0870–0341). Accordingly, OSHA reaffirms its In its comment, Materion questioned generating process, but who may expectation that both the provisions OSHA’s reliance on the 2007 Day et al. nonetheless reasonably be expected to associated with beryllium work areas study (82 FR at 2488–89) and suggested have airborne exposure to and/or skin (listed above) and the provisions that, contrary to OSHA’s statement, Day contact with soluble beryllium, associated with dermal contact with did not identify a ‘‘strong correlation’’ beryllium solutions, or visible beryllium beryllium would apply to employees in between airborne concentrations and dust, fumes, or mists in concentrations skin exposure (Document ID 0038, pp. a beryllium work area. OSHA expects of 0.1 percent by weight or more. As 13–14). Materion cited Day’s finding of that employers will, for each beryllium discussed previously, OSHA intends the a potential for greater transfer of work area, assess the PPE needs as revised definition of dermal contact beryllium from surfaces to cotton gloves required by paragraph (f)(1) and OSHA’s with beryllium to provide employers that could lead to an overestimation of with a workable indicator for 16 Materion also asserted that the evidence in the the amount of beryllium transferred. record is insufficient to conclude that ‘‘dermal determining which employees outside OSHA disagrees with Materion’s contact alone is sufficient to create a significant risk of beryllium work areas should receive assessment of the Day study. Day of CBD or even beryllium sensitization’’ (Document this information and training. indicates that the underlying ID 0038, pp. 14–15). However, in the 2017 final Because the change would allow rule, OSHA specifically found that that dermal assumption that glove-sampling exposure can result in sensitization (see 82 FR at employers to more accurately identify techniques actually remove the majority 2489). The 2018 NPRM did not propose revisiting areas where provisions related to dermal of the contamination may be overstated this finding. contact should apply, the revised

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definition would also facilitate proper each employee working in a beryllium plan. Paragraph (f)(1)(ii) directs compliance with paragraph (i)(1)(ii), work area with readily accessible employers to review and evaluate each which requires employers to ensure washing facilities (paragraph (i)(1)(i)) plan at least annually and update it employees who have dermal contact and a designated change room where under specified circumstances. with beryllium wash any exposed skin employees are required to remove their In the 2018 NPRM, OSHA proposed at the end of the activity, process, or personal clothing (paragraph (i)(2)). But, two wording changes to paragraph (f)(1) work shift and prior to eating, drinking, as explained earlier in this section, (83 FR at 63754). The first proposed smoking, chewing tobacco or gum, OSHA is revising the definition of change relates to the contents of the applying cosmetics, or using the toilet. beryllium work area so that the written exposure control plan. Under OSHA’s revisions to the definition of requirement to establish these areas is paragraph (f)(1)(i)(D), employers were dermal contact with beryllium would no longer triggered on the potential for previously required to include prevent employers from speculating that dermal contact with beryllium. procedures in their plans for all employees in a facility, including OSHA intends for the washing minimizing cross-contamination, those employees who do not work near facilities and change rooms ‘‘including preventing the transfer of beryllium-releasing processes, must requirements to apply where employees beryllium’’ between surfaces, wash their exposed skin because they are reasonably expected to have dermal equipment, clothing, materials, and might have come into contact with non- contact with beryllium, regardless of articles within beryllium work areas. visible beryllium particulate or handled whether they work in a beryllium work OSHA proposed removing the word articles that contain beryllium. Such an area, as now defined in this final rule. ‘‘preventing’’ from the regulatory text to interpretation would be contrary to As discussed above, there may be clarify that these procedures may not OSHA’s intent. employees outside of the beryllium totally eliminate the transfer of The revised definition is designed to work area that may have a reasonable beryllium, but should minimize cross- further improve employer compliance expectation of dermal contact with contamination of beryllium, including with the requirements in paragraph (k) beryllium. Therefore, as was proposed, between surfaces, equipment, clothing, to offer employees a medical OSHA is adding two additional materials, and articles. examination including a medical and references to dermal contact with The second proposed change involves work history that emphasizes past and beryllium to paragraph (i). First, OSHA one of the circumstance when present airborne exposure to or dermal is revising paragraph (i)(1) so that the employers must update their written contact with beryllium (paragraph requirements would apply to each exposure control plans. Paragraph (k)(3)(ii)(A)), and to provide the employee who works in a beryllium (f)(1)(ii)(B) of the standard directed examining physician or other licensed work area or who can reasonably be employers to update the written health care professional (PLHCP) (and expected to have dermal contact with exposure control plan, as necessary, the agreed-upon CBD diagnostic center, beryllium. Paragraph (i)(1)(i) would when they are notified that an employee if such an evaluation is required) with then require employers to provide is eligible for medical removal in a description of the employee’s former washing facilities to all employees who accordance with paragraph (l)(1), and current duties that relate to the can be reasonably expected to have referred for evaluation at a CBD employee’s airborne exposure to and dermal contact with beryllium. Second, diagnostic center, or shows signs or dermal contact with beryllium OSHA is revising paragraph (i)(2) so that symptoms associated with ‘‘airborne (paragraph (k)(4)(i)). Because it would employers are required to provide exposure to or dermal contact with improve employers’ ability to identify change rooms to employees who are beryllium.’’ In the 2018 NPRM, OSHA when dermal contact with beryllium has required to use personal protective proposed to replace the phrase occurred or could occur, this change clothing or equipment under paragraph ‘‘airborne exposure to and dermal would permit employers to accurately (h)(1)(ii), if those employees are contact with beryllium’’ with ‘‘exposure complete employee medical and work required by the employer to remove to beryllium.’’ The agency explained histories and the reports that they must their personal clothing. Because that the change would simplify the provide to examining PLHCPs or CBD paragraph (h)(1)(ii) requires the use of language of the provision while still diagnostic centers. As with the PPE where there is a reasonable capturing all potential exposure provisions discussed above, OSHA’s expectation of dermal contact with scenarios currently covered. Because revisions to the definition of dermal beryllium, the change to paragraph (i)(2) these proposed changes are merely contact with beryllium will prevent ensures that the requirement for change clarifying, OSHA explained that it employers from including superfluous rooms would continue to protect those expected that they would maintain information in these medical and work employees who can reasonably be safety and health protections for histories and reports because they are expected to have dermal contact with workers. concerned that an employee might have beryllium. All of the stakeholders that submitted conceivably had skin contact with Methods of Compliance. comments related to OSHA’s proposed minute, non-visible beryllium Paragraph (f) of the beryllium changes to the written exposure control particulate or handled beryllium- standard for general industry contains plan provisions supported the changes containing articles outside of a provisions covering methods for (see, e.g., Document ID 0031, p. 2; 0038, beryllium work area. Such an expansive reducing employee exposure to p. 31). For example, EEI observed that interpretation is again contrary to beryllium through the use of a written OSHA’s discussion of the proposed OSHA’s intent. exposure control plan and engineering changes were appropriate modifications OSHA is adding two references to and work practice controls. Paragraph to the beryllium standard (Document ID dermal contact with beryllium in (f)(1) sets forth the requirements for 0031, p. 2). Materion also supported the paragraph (i), Hygiene areas and written exposure control plans. proposed changes and agreed with practices, to account for the final rule’s Paragraph (f)(1)(i) requires employers to OSHA that these proposed changes are changes to the definition of beryllium establish, implement, and maintain merely clarifying, and that they will work area in paragraph (b). Paragraph (i) such a plan, and paragraphs (f)(1)(i)(A)– maintain safety and health protections in the previous rule included (H) specifies the information and for employees. In addition, Materion requirements for employers to provide procedures that must be included in the noted that it ‘‘identifie[d] no reduction

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in protection to employees associated multiple tasks involving beryllium contamination of PPE, any with these clarifying language successively or intermittently contamination present will likely be revisions’’ (Document ID 0038, p. 31). throughout the day, the employer must minute and will not contaminate other After reviewing these comments and ensure that each employee removes all work areas to such a degree as to considering the record as a whole, beryllium-contaminated PPE at the materially increase worker exposures. OSHA has determined that the proposed completion of the set of tasks involving Furthermore, as explained in the changes will clarify for employers the beryllium, not necessarily after each preamble to the 2017 final rule (82 FR requirements of the written exposure separate task. If, however, employees at 2682), because the purpose of PPE is control plan without sacrificing safety perform tasks involving beryllium to serve as a barrier between an and health protections for workers. exposure for only a portion of a work employee’s body and ambient or surface Therefore, OSHA is finalizing the shift, and then perform tasks that do not beryllium, PPE becomes contaminated proposed changes to paragraph (f) in involve exposure to beryllium, the with beryllium immediately as part of this final rule. employer must ensure that employees its protective function. Requiring PPE to Personal Protective Clothing and remove their PPE after the beryllium be changed upon contamination with Equipment. exposure period. Unless the PPE any amount of beryllium is Paragraph (h) of the beryllium becomes visibly contaminated with unreasonable and unnecessary to standard for general industry requires beryllium, OSHA did not intend this protect employees. This is because employers to provide employees with provision to require multiple PPE contamination of PPE with beryllium personal protective clothing and changes throughout the work shift. during work processes does not reduce equipment (PPE) where employee Thus, the proposed revision to the effectiveness of PPE or create exposure exceeds, or can reasonably be paragraph (h)(2)(i) clarifies OSHA’s hazards to employees unless sufficient expected to exceed, the TWA PEL or original intent. beryllium accumulates on the PPE to STEL, or where there is a reasonable OSHA received multiple comments in impair its function or create additional expectation of dermal contact with support of the proposed change to exposures, such as by dispersing beryllium. Paragraph (h) also contains paragraph (h)(2)(i). The USW accumulated beryllium into the air. provisions for the safe removal, storage, commented that it believes the change Moreover, the process of changing cleaning, and replacement of the PPE is reasonable and clarifies the intent of contaminated PPE can create required by this standard. As explained the standard (Document ID 0033, p. 6). opportunities for both inhalation in the 2017 final rule preamble, these Similarly, Century Aluminum expressed exposure and dermal contact with PPE requirements are intended to its support for this ‘‘sensibl[e]’’ revision, beryllium. Accordingly, the use of protect employees by preventing dermal commenting that it is an example of a ‘‘visibly contaminated’’ protects exposure to beryllium and the logical and workable requirement that employees from potential exposures accumulation of airborne beryllium on will produce better work practices and while changing PPE by limiting the PPE, and to protect employees and other habits and, in turn, improve employee requirement to change PPE during work individuals both inside and outside the health and safety outcomes (Document tasks involving beryllium exposure to workplace from exposures that could ID 0026, p. 2). In addition, Century those circumstances when changing it is occur if contaminated clothing were to Aluminum commented that requiring necessary to maintain its protective transfer beryllium (82 FR at 2678). PPE to be changed after every task function and prevent deposits of In the 2018 NPRM, OSHA proposed would ‘‘significantly increase costs beryllium from accumulating and two changes to paragraph (h). The first without increasing employee health and dispersing. revision relates to paragraph (h)(2)(i), safety’’ and could actually increase the Notably, the USW commented that it which addresses removal and storage of amount of time employees are exposed believes including the term ‘‘visibly PPE. Paragraph (h)(2)(i) previously to beryllium, thus increasing their risk contaminated’’ in the provision required employers to ensure that each of sensitization and disease (Document provides for employee safety (Document employee removes all beryllium- ID 0026, p. 2). Materion also expressed ID 0033, pp. 6–7), and Materion contaminated PPE at the end of the its general support for the ‘‘clarifying similarly stated that ‘‘visibility [of work shift, ‘‘at the completion of tasks language revisions’’ to paragraph (h) beryllium-contaminated PPE and involving beryllium,’’ or when PPE (Document ID 0038, p. 32). equipment] is a conservative, stringent’’ becomes visibly contaminated with OSHA also received two comments trigger that ‘‘also has the benefit of beryllium, whichever comes first. OSHA opposing the proposed change to compliance clarity’’ (Document ID 0038, proposed modifying the phrase ‘‘at the paragraph (h)(2)(i). A private citizen p. 32). After reviewing these comments completion of tasks involving commented that, although OSHA did and considering the record as a whole, beryllium’’ by changing ‘‘tasks’’ to ‘‘all not intend to require continuous PPE OSHA finds that the proposed change in tasks,’’ so that it reads ‘‘at the changes throughout a work shift, doing paragraph (h)(2)(i) is reasonably completion of all tasks involving so seemed necessary to limit necessary and appropriate and has beryllium’’ (83 FR at 63754). transmission of contaminant between retained the revised language in the OSHA explained in the 2018 NPRM workers and work areas (Document ID final rule. that this revision to paragraph (h)(2)(i) 0017). And another private citizen The second proposed revision relates merely clarifies the trigger for when commented that if a worker’s suit is to paragraph (h)(3)(iii), which addresses employees must remove beryllium- contaminated, the worker should be cleaning and replacement of PPE. This contaminated PPE, consistent with the required to change even if the suit is not paragraph required employers to inform agency’s original intent (83 FR at visibly contaminated (Document ID in writing the persons or the business 63754). As expressed in the preamble to 0019). entities who launder, clean, or repair the 2017 final rule, OSHA intended that OSHA does not believe it is necessary the PPE required by this standard of the PPE contaminated with beryllium for workers to change PPE after each potentially harmful effects of ‘‘airborne should not be worn after tasks involving work task, or after each instance of PPE exposure to and dermal contact with beryllium exposure have been contamination, in order to limit the beryllium.’’ The 2018 NPRM proposed completed for the day (82 FR at 2682). spread of beryllium particulate between replacing the phrase ‘‘airborne exposure Thus, when employees perform work areas because, absent visible to and dermal contact with beryllium’’

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with ‘‘exposure to beryllium’’ (83 FR at whether they work in beryllium work disperse beryllium into the air or onto 63755). OSHA explained that this areas as defined in the revised an employee’s body. In the 2018 NPRM, change simplifies the language of the definition (83 FR at 63755). OSHA OSHA proposed to modify this provision while still capturing all accordingly proposed two changes. paragraph to require the employer to potential exposure scenarios currently First, OSHA proposed a change in the ensure that, before employees enter an covered; and, as such, the agency wording of paragraph (i)(1), which eating or drinking area, beryllium- concluded that the revised language will required that ‘‘[f]or each employee contaminated PPE is cleaned, as maintain safety and health protections working in a beryllium work area,’’ the necessary, to be as free as practicable of for workers. OSHA received no employer must provide readily beryllium by methods that do not comments on this proposed change accessible washing facilities to remove disperse beryllium into the air or onto beyond Materion’s general support for beryllium from the hands, face, and an employee’s body (83 FR at 63768). the clarifying revisions to paragraph (h) neck; and ensure that employees who The agency explained that this proposed as a whole (Document ID 0038, p. 32). have dermal contact with beryllium change would clarify that OSHA does OSHA is therefore retaining the wash any exposed skin at specific not expect the methods used to clean proposed revision to paragraph designated times. The 2018 NPRM PPE prior to entering an eating or (h)(3)(iii) in the final rule. proposed amending the language to drinking area to completely eliminate Hygiene Areas and Practices. apply to ‘‘each employee . . . who can residual beryllium from the surface of Paragraph (i) of the beryllium general reasonably be expected to have dermal the PPE if complete elimination is not industry standard requires that the contact with beryllium,’’ in addition to practicable (83 FR at 63755–56). OSHA employer provide employees with each employee working in a beryllium also explained that this is consistent readily accessible washing facilities, work area (83 FR at 63768). with its determination, expressed in the change rooms, and showers when Second, OSHA proposed a change in preamble to the 2017 final rule, that ‘‘as certain conditions are met; requires the the wording of paragraph (i)(2), which free as practicable’’ is ‘‘the most employer to take certain steps to required employers to provide appropriate terminology for minimize exposure in eating and ‘‘employees who work in a beryllium requirements pertaining to surface drinking areas; and prohibits certain work area,’’ with a designated change cleanliness’’ (82 FR at 2687). This practices that may contribute to room where employees are required to proposed clarification also aligns the beryllium exposure. As explained in the remove their personal clothing. OSHA language of paragraph (i)(4)(ii) with the 2017 final rule, OSHA believes that proposed revising paragraph (i)(2) to language of paragraph (i)(4)(i), which strict compliance with these provisions require employers to provide a requires employers to ensure that will reduce the amount and duration of designated change room to employees beryllium-contaminated surfaces in employees’ airborne exposure and who are required to use personal eating and drinking areas are as free as dermal contact with beryllium (82 FR at protective clothing or equipment under practicable of beryllium. Finally, OSHA 2683–88). paragraph (h)(1)(ii) of the beryllium explained that requiring cleaning only In the 2018 NPRM, OSHA proposed standard, instead of to employees who ‘‘as necessary’’ would clarify that three changes to paragraph (i) of the work in a beryllium work area (83 FR cleaning would not be required if the general industry standard. The agency at 63768). Paragraph (h)(1)(ii) of the PPE is already as free as practicable of proposed the first two changes (83 FR at beryllium standard requires the beryllium. OSHA stated that it expected 63755), which apply to paragraphs (i)(1) provision and use of appropriate PPE these proposed changes to paragraph (i) and (i)(2), to maintain the protections where there is a reasonable expectation would maintain safety and health included in these paragraphs for of dermal contact with beryllium. The protections for workers. employees who have dermal contact requirement to provide change rooms with beryllium notwithstanding the would continue to apply only where Commenters expressed broad support proposed change to the definition of employees are required to remove their for OSHA’s proposed changes to beryllium work area, discussed personal clothing. As noted above and paragraph (i) (see, e.g., Document ID previously in this Summary and explained in the 2018 NPRM, the 0029, p. 1; 0031, p. 2; 0033, p. 6; 0038, Explanation. OSHA proposed the third proposed changes to paragraphs (i)(1) p. 32). For example, EEI observed that change, which applies to paragraph and (i)(2) were merely intended to the proposed changes to this paragraph (i)(4), to clarify the requirements for ensure that the hygiene provisions as a whole were appropriate cleaning beryllium-contaminated PPE related to washing facilities and change modifications to the beryllium standard prior to entering an eating or drinking rooms would continue to protect (Document ID 0031, p. 2) and DOD area (83 FR at 63755–56). employees who are reasonably expected generally agreed with the proposed As explained in the previous to have dermal contact with beryllium, changes, commenting that they are discussion of changes to the definition if the agency adopted the proposed evidence based and provide greater of beryllium work area, OSHA proposed revised definition of the term beryllium employee protections (Document ID and has finalized these changes to the work area. 0029, p. 1). Materion also supported the definition of beryllium work area to OSHA also proposed a third change, proposed changes to paragraph (i) as a clarify where a beryllium work area which applies to paragraph (i)(4), in whole, and agreed with OSHA that must be established. One of these order to clarify the requirements for these proposed changes are merely changes removes dermal contact with cleaning beryllium-contaminated PPE clarifying, and that they will maintain beryllium as one of the triggers that prior to entering an eating or drinking safety and health protections for requires an employer to establish a area. Paragraph (i)(4)(ii) required the employees (Document ID 0038, p. 32; beryllium work area. As explained in employer to ensure that no employees see also Document ID 0034 and 0035, p. the 2018 NPRM, OSHA intended for the enter any eating or drinking area with 1 (supporting and endorsing the hygiene provisions related to washing beryllium-contaminated personal comments submitted by Materion)). facilities and change rooms to continue protective clothing or equipment unless, OSHA did not receive any comments to apply to all employees who can prior to entry, surface beryllium has that specifically addressed the two reasonably be expected to have dermal been removed from the clothing or proposed changes to paragraphs (i)(1) contact with beryllium, regardless of equipment by methods that do not and (i)(2). The agency is therefore

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adopting the changes to those in other parts of the standard, as practicable of beryllium, promptly paragraphs as proposed. acknowledging that this is the workable clean spills and emergency releases of Stakeholders also did not submit any legal standard OSHA relies on in beryllium, and use appropriate cleaning comments on the majority of the occupational health standards methods, while paragraph (j)(3) requires agency’s proposed changes to paragraph (Document ID 0038, pp. 25–26, 33). employers to take certain actions when (i)(4). A DOD comment specifically Moreover, as to DOD’s transferring materials that contain at addressed the term ‘‘as free as recommendation that OSHA require least 0.1 percent beryllium by weight or practicable,’’ suggesting that because the employers to establish procedures for that are contaminated with beryllium term is not defined, OSHA should cleaning PPE, document outside a plant for the purpose of require employers to establish accomplishment of procedures, and disposal, recycling, or reuse. procedures for cleaning PPE, document periodically review compliance with Specifically, paragraph (j)(3)(i) requires accomplishment of procedures, and cleaning procedures (Document ID that, except for intra-plant transfers, periodically review compliance with 0029, p. 2), OSHA agrees that requiring when transferring these materials for cleaning procedures (Document ID employers to establish PPE cleaning any of these purposes the employer 0029, p. 2). The USW supported the procedures is important. To meet this must label the materials in accordance proposed change for cleaning PPE ‘‘as objective, the written exposure control with paragraph (m)(3). Paragraph necessary,’’ agreeing with OSHA’s plan provision in paragraph (f)(1)(i) (j)(3)(ii) further requires that those explanation in the 2018 NPRM that requires employers to establish, materials designated for disposal must requiring cleaning only as necessary implement, and maintain a written be either cleaned to be as free as would clarify that cleaning would not exposure control plan, which must practicable of beryllium or placed in be required if the PPE is already as free contain, among other things, procedures enclosures that prevent the release of as practicable of beryllium (Document for removing, laundering, storing, beryllium-containing particulate or ID 0033, p. 6). cleaning, repairing, and disposing of solutions under normal conditions of The requirement to maintain surfaces beryllium-contaminated personal use, storage, or transport, such as bags as free as practicable of a regulated protective clothing and equipment, or containers. Paragraph (j)(3)(iii) substance is included in other OSHA including respirators. Paragraph (f)(1)(ii) requires the same for materials health standards, such as those for lead requires employers to review and designated for recycling or reuse. (29 CFR 1910.1025, 29 CFR 1926.62), evaluate the effectiveness of each The final rule makes a number of chromium (VI) (29 CFR 1910.1026), and written exposure control plan at least changes to the previous requirements of asbestos (29 CFR 1910.1001), and is annually and update it, as necessary, if paragraph (j)(3). As originally used elsewhere in the beryllium general certain specified events occur. OSHA promulgated in the 2017 final rule, industry standard (29 CFR believes that these requirements satisfy paragraph (j)(3)(i) required that 1910.1024(f)(1)(i)(E), (i)(4)(i), (j)(1)(i), DOD’s concerns while still allowing materials designated for disposal be (j)(3)(ii)). Employers therefore have the employers the flexibility to establish, disposed of in sealed, impermeable benefit of previous experience implement, and maintain a plan that enclosures, such as bags or containers, interpreting and developing methods for works best for their individual that are labeled according to paragraph compliance with requirements to workplaces. (m)(3) of the beryllium standard, but did maintain surfaces ‘‘as free as After reviewing these comments and not allow employers the alternative practicable’’ of toxic substances, considering the record as a whole, option of cleaning such material to be as including beryllium, as well as guidance OSHA believes that the term ‘‘as free as free as practicable of beryllium. Further, from OSHA on compliance with such practicable’’ is understood by employers both paragraphs (j)(3)(i) and (j)(3)(ii) requirements. OSHA discussed the through its use in other standards and required that materials be transferred in meaning of this phrase in the Summary as explained in letters of interpretation sealed, impermeable bags, but did not and Explanation of paragraph (j) in the and other guidance, and does not further define this requirement. Finally, 2017 final rule (82 FR at 2690), as well believe that defining the term in this the original paragraph (j)(3) did not as in a 2014 letter of interpretation standard or establishing specific PPE explicitly address transfers of materials explaining the phrase in the context of cleaning and documentation procedures for the purpose of reuse.17 the agency’s standard for chromium (VI) is necessary. OSHA also believes the After the promulgation of the final (OSHA, Nov. 5, 2014, Letter of proposed change is necessary to align rule in 2017, OSHA learned that some Interpretation, available at https:// the language of paragraphs (i)(4)(i) and stakeholders were confused about these www.osha.gov/laws-regs/ (i)(4)(ii). OSHA did not receive any requirements. For example, stakeholders standardinterpretations/2014-11-05). As comments objecting to the revised were uncertain about what types of OSHA explained in the 2014 letter of requirement that PPE be ‘‘cleaned, as enclosures would be acceptable under interpretation, OSHA evaluates whether necessary,’’ which makes clear that the standard. To help alleviate a surface is ‘‘as free as practicable’’ of a cleaning would not be required if PPE stakeholder confusion, OSHA proposed contaminant by the efficacy of the is already as free as practicable of a number of changes in the 2018 NPRM employer’s program to keep surfaces beryllium. OSHA believes these changes that make explicit what had been clean. OSHA intends for this term to be clarify the agency’s intent without intended in the 2017 final rulemaking. broad and performance-oriented, so as sacrificing safety and health protection Specifically, OSHA proposed adding to allow employers in a variety of for workers. The agency is therefore provisions explicitly addressing industries flexibility to decide what adopting the changes as proposed to transferring materials for reuse; type of control methods and procedures paragraph (i)(4)(ii) in this final rule. clarifying that the rule’s requirements are best suited to their beryllium Disposal, Recycling, and Reuse. for disposal, recycling, and reuse do not operations, and OSHA intends to Paragraph (j) of the beryllium general apply to intra-plant transfers; and evaluate compliance based on employer industry standard requires employers to efforts under the circumstances present adhere to certain housekeeping 17 Subsequent to the 2017 final rule, the 2018 at each facility. Notably, in its comment, practices. Paragraphs (j)(1) and (j)(2) direct final rule clarified that the requirements of paragraph (j)(3) do not apply to materials containing Materion expressed general support for require employers to maintain all only trace amounts of beryllium (less than 0.1 use of the phrase ‘‘as free as practicable’’ surfaces in beryllium work areas as free percent by weight).

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allowing for the cleaning of materials addressing reuse. This proposed change agency proposed replacing the phrase bound for disposal. The agency also was intended to ensure that workers materials ‘‘that contain beryllium in proposed reorganizing the paragraph’s who may be exposed to materials concentrations of 0.1 percent by weight two paragraphs into three that focused containing or contaminated with or more’’ with a shorter phrase: on specific topics and making minor beryllium that are directly reused Materials ‘‘that contain at least 0.1 changes in terminology to improve the without first being processed into a percent beryllium by weight.’’ As the clarity and internal consistency of the different form are appropriately agency explained in the 2018 NPRM, standard. Only one of the changes is protected. For example, a manufacturer this change is meant to simplify the substantive, which is the inclusion of may sell a by-product from a process to language and does not change the the option for cleaning instead of a downstream manufacturer that would meaning. OSHA did not receive any enclosure; the remaining edits merely reuse the by-product as a component of comments on the proposed clarify OSHA’s original intent. As a new product. Recycling, on the other simplification of this language. discussed in more detail below, OSHA hand, typically involves the further Therefore, OSHA is adopting the new is retaining the changes proposed in the processing of waste materials to separate phrase ‘‘that contain at least 0.1 percent 2018 NPRM in the final rule with only and recover various components of beryllium by weight’’ in paragraph (j)(3) one clarifying revision. With these value. OSHA did not receive any in the final rule. changes, final paragraph (j)(3) provides specific comments on the addition Fourth, OSHA proposed adding an comprehensive, easy to understand addressing reuse of materials in explicit exemption for materials requirements for employers that are paragraph (j)(3). Therefore, OSHA has transferred within a plant from the transferring materials outside of their finalized the inclusion of requirements cleaning and enclosure requirements in plants for disposal, recycling, or reuse related to the reuse of materials in new paragraphs (j)(3)(ii) and (iii). While that contain at least 0.1 percent paragraph (j)(3). this exemption was not explicitly beryllium by weight or are Second, OSHA proposed reorganizing included in the regulatory text of the contaminated with beryllium. paragraph (j)(3)’s original two 2017 final rule, its inclusion in this final In response to the 2018 NPRM, a paragraphs (one on disposal, one on rule is not a substantive change. As number of commenters, including the recycling—with the labeling OSHA noted in the 2018 NPRM, the DOD, Materion, the USW, and EEI, requirements specified in each) into agency never intended the provisions of expressed support for the proposed three new paragraphs with each paragraph (j)(3) to require employers to revisions generally (see, e.g., Document paragraph focusing on a different topic. clean or enclose materials to be used in ID 0029, p. 1; 0038, pp. 32–33; 0033, p. Proposed paragraph (j)(3)(i) spelled out another location within the same facility 5; 0031, p. 2). For example, DOD stated the labeling requirements, proposed (83 FR at 63756 (citing 82 FR at that the revisions ‘‘are evidence based paragraph (j)(3)(ii) included the 2696)).18 Thus, the inclusion of the and provide greater employee requirements for cleaning or enclosing exemption in the proposed regulatory protection’’ (Document ID 0029, p. 1). materials bound for disposal, and text simply makes the agency’s intent Similarly, Materion commented that the proposed paragraph (j)(3)(iii) laid out plain. revisions ‘‘will provide improved the obligations as to materials The USW supported the proposed understanding and more practical designated for recycling or reuse. The inclusion of the ‘‘intra-plant transfer’’ meaning to manufacturers by improving proposed reorganization allowed the exemption in the regulatory text the clarity and internal consistency of agency to incorporate the new reuse (Document ID 0033, p. 5). Specifically, the standard’’ (Document ID 0038, p. requirements, while also setting out the USW pointed to its comments on 32). each distinct obligation clearly. OSHA OSHA’s 2015 NPRM, which stated that Stakeholders also offered specific further explained in the proposal that the agency should not require all comments on the individual changes this is not a substantive change to the materials to be decontaminated or OSHA proposed to paragraph (j)(3). standard, but rather only a sealed in an enclosure (Document ID OSHA outlines each of those changes reorganization of the existing provisions 0033, p. 5). Rather, the USW explained, below, along with any specific (see 83 FR at 63763). One commenter, the initial intent of the corresponding comments received on those changes Materion, addressed the reorganization provision of the model standard it and the agency’s final determination as of paragraph (j)(3), noting that the drafted jointly with Materion was ‘‘to to whether to retain the proposed change would improve the clarity and ensure that materials leaving a facility change in the final rule. employers’ understanding of the and designated for recycling be OSHA proposed seven changes to the provisions (Document ID 0038, p. 32). containerized or visibly clean’’ 2017 version of paragraph (j)(3). First, Having received no comments to the (Document ID 0033, p. 5) (emphasis the agency proposed that the provisions contrary, OSHA is adopting the new added). address reuse (in addition to disposal structure to paragraph (j)(3) in the final DOD did not submit a comment on and recycling). As noted above, rule. the proposed intra-plant transfer paragraph (j)(3) of the 2017 final rule Third, OSHA proposed a simplifying exception, but its comment on another contained requirements for the labeling change relating to the description of part of paragraph (j)(3) suggested that it and enclosure of certain materials which materials must be labeled and understood the paragraph to apply to designated for disposal and the labeling cleaned or enclosed prior to transfer for intra-plant transfers (see Document ID and either enclosure or cleaning of disposal, recycling, or reuse. The 2018 materials designated for recycling. The direct final rule required employers to 18 As OSHA noted in the 2018 NPRM, employees preamble to the 2017 final rule made label and clean or enclose two groups of who may be exposed to these materials during intra-plant transfers will not go unprotected. On the clear that paragraph (j)(3)’s requirements materials: (1) Materials that contain contrary, other provisions of the beryllium standard related to recycling also applied to reuse beryllium in concentrations of 0.1 require employers to communicate possible hazards (see 82 FR at 2695–96), but the standard percent by weight or more, and (2) to these employees and protect them during such did not explicitly advise employers of materials that are contaminated with transfers (see, e.g., paragraph (f), Methods of compliance; paragraph (g), Respiratory protection; this requirement. To make the agency’s beryllium. In the 2018 NPRM, OSHA paragraph (h), Personal protective clothing and original intent clear, OSHA proposed in proposed a simplifying edit to the first equipment; paragraph (m), Communication of the 2018 NPRM to include provisions group of materials. Specifically, the hazards).

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0029, p. 1 (‘‘To support the proposed (iii) was not a substantive change—the the text of paragraph (j)(3)(i) to more revisions that require surface cleaning of agency never intended to require explicitly match the intent expressed in equipment and materials to remove employers to clean or enclose materials both the 2017 rule and the 2018 beryllium before recycling, re-use, or transferred within a single plant. The proposal. Specifically, OSHA is revising intra-plant transfers, we recommend the reorganization of paragraph (j)(3) was paragraph (j)(3)(i) in the final rule to use of the Department of Energy’s also not a substantive change; it merely strike the phrase ‘‘to another party’’ and (DOE’s) cleanliness standards as allowed the agency to make clear that add the ‘‘except for intra-plant specified in Title 10 Code of Federal the labeling requirements apply transfers’’ language that is found in Regulations Part 850.’’)).19 As discussed regardless of whether the employer paragraphs (j)(3)(ii) and (iii). Final below, OSHA does not agree with transfers materials for the purpose of paragraph (j)(3)(i), therefore, provides DOD’s suggested use of DOE’s surface disposal, recycling, or reuse (83 FR at that except for intra-plant transfers, limits and, as already stated, OSHA 63763, 63756). Because the labeling when the employer transfers materials never intended to require employers to requirements were part of paragraphs that contain at least 0.1 percent clean or enclose materials transferred (j)(3)(i) and (ii) in the 2017 final rule, to beryllium by weight or are within a single plant. Rather, the which the intra-plant exemption contaminated with beryllium for provisions in paragraph (j)(3) have applied, and were simply moved to a disposal, recycling, or reuse, the always been intended to protect new stand-alone paragraph without employer must label the materials in employees after the materials leave the substantive change, the scope of those accordance with paragraph (m)(3) of this facility. activities requiring labeling has not standard. Materion commented that beryllium- changed. Put another way, the intra- In summary, OSHA is adopting the containing scrap metal or wastes are, in plant exemption continues to apply to proposed addition of the explicit intra- most cases, recycled internally ‘‘either the labeling provision to the same extent plant exception in final paragraphs within or between facilities,’’ but it did prior to the proposal. And, more (j)(3)(ii) and (iii). No commenters companies ‘‘also recycle scrap or to the point, the labeling requirement opposed these revisions and, therefore, purchase scrap on the open market’’ continues to apply to all other transfers OSHA has decided to retain them, (Document ID 0038, p. 32). Materion for purposes of disposal, recycling, or unchanged from the proposal (see further asserted that OSHA’s regulation reuse, regardless of whether they Document ID 0038, p. 32; 0033, p. 5). ‘‘should not be construed as potentially involve transfers between two locations The agency is also revising proposed limiting the environmentally beneficial operated by the same employer. paragraph (j)(3)(i) to explicitly recycling of metals’’ (Document ID 0038, If proposed paragraph (j)(3)(i) was incorporate the exception. As explained p. 32). OSHA agrees that paragraph interpreted to only require the labeling in detail above, none of these changes (j)(3)’s requirements should not be read of materials transferred to another are substantive, but OSHA expects the to discourage the reuse or recycling of employer (rather than another facility), clarified language will aid employers in metals and reads Materion’s statements then an employer could place materials understanding and, thus, carrying out regarding the manner in which that were designated for reuse in an their responsibilities under these companies recycle scrap metal or wastes enclosure and transfer them to another provisions. (i.e., within or between facilities or on facility without a label, so long as the OSHA’s fifth proposed change to the open market) as purely employer owned the second facility. paragraph (j)(3) focused on the informational. However, the agency This scheme could potentially put both requirement to place items in ‘‘sealed, notes that this comment could be read the transferring and receiving impermeable enclosures.’’ Specifically, to suggest that the exception for items employees at risk by failing to paragraph (j)(3)(i) in the 2017 final rule transferred within a facility also applies appropriately apprise them of the required employers to place certain to items transferred between two presence of beryllium-containing materials bound for disposal in ‘‘sealed, facilities owned by the same employer. materials and the hazardous nature of impermeable enclosures, such as bags or Such an interpretation would be beryllium exposure. containers.’’ Paragraph (j)(3)(ii) in the incorrect—the intra-plant transfer Moreover, such an interpretation 2017 final rule also required enclosure exception only exempts transfers within could lead to inconsistencies or of certain materials that had not been a single plant; material transfers conflicts with the Hazard appropriately cleaned. In the preamble between plants are not excluded, Communication standard (HCS) (29 CFR to the 2017 final rule, OSHA explained regardless of plant ownership. 1910.1200), which requires labeling for that it intended these requirements to be This comment also alerted the agency all hazardous chemicals leaving a broad and performance-oriented and to a potential ambiguity in the text of worksite regardless of destination. This clarified that the term ‘‘impermeable’’ proposed paragraph (j)(3)(i). is clearly laid out in OSHA’s Hazard was not intended to mean absolutely Specifically, OSHA realized that the Communication directive (CPL 02–02– impervious to rupture but, rather, that phrase ‘‘to another party’’ could be read 079): ‘‘Manufacturers, importers, and the enclosures would not allow to suggest that transfers between two distributors are required to ensure that materials to escape under normal facilities owned by the same employer each container of hazardous chemicals conditions of use (82 FR at 2695). are exempted from the labeling is appropriately labeled. Labeling Nevertheless, the agency learned that requirements in paragraph (j)(3)(i). requirements apply for shipped confusion around the enclosure Again, this was not the agency’s intent. containers leaving the workplace requirement remained. As noted above, the proposed addition regardless of whether the intended To alleviate the confusion regarding of the explicit intra-plant transfer destination is interstate or intrastate.’’ the enclosure requirements, OSHA exception in paragraphs (j)(3)(ii) and Although the agency’s intent was proposed in the 2018 NPRM to clarify always to exempt only intra-plant the ‘‘sealed, impermeable bag’’ 19 DOD’s suggestion regarding DOE’s cleanliness transfers from the labeling requirement, requirement to make explicit what had standards is addressed below in this section of this OSHA sees value in eliminating any been intended in the 2017 final final rule as part of the discussion of the seventh and final proposed change to paragraph (j)(3) ambiguity and ensuring that labeling is rulemaking: That employers must relating to the cleaning of materials designated for consistent with the requirements of the utilize enclosures that prevent the disposal, recycling, or reuse. HCS. Therefore, the agency is revising release of beryllium-containing

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particulate or solutions under normal and preliminarily determined that employers to provide feedback on their conditions of use, storage, or transport. workers handling items designated for cleaning procedures. To the extent that The agency further explained that the disposal, like workers handling items DOD’s recommendation was intended to proposed change would reinforce the designated for recycling or reuse, would suggest an amendment to the proposed requirement that employers select the be just as protected from exposure to provisions, however, OSHA does not appropriate type of container to prevent beryllium if the items are cleaned to be believe such an amendment is release based on the form of beryllium as free as practicable of beryllium as if appropriate. As discussed in the 2018 and how it is normally handled. For the items were placed in containers. In NPRM, the ‘‘as free as practicable’’ example, a container that prevents the accordance with this preliminary standard is well-understood by the release of a beryllium particulate may determination, OSHA in the 2018 regulated community. OSHA has used not be effective in preventing the release NPRM proposed adding the cleaning the phrase in existing substance-specific of a beryllium solution. option to paragraph (j)(3)(ii). The agency standards, including those for lead (29 One commenter, Materion, submitted explained that, regardless of whether an CFR 1910.1025, 29 CFR 1926.62), comments specific to this proposed employer chooses to clean or enclose chromium (VI) (29 CFR 1910.1026), and change (Document ID 0038, p. 32). materials designated for disposal, the asbestos (29 CFR 1910.1001), and has Materion was supportive of the revision, labeling requirements under proposed previously discussed its meaning in a noting that it will significantly improve paragraph (j)(3)(i) would apply and 2014 letter of interpretation explaining understanding of the requirements for would require that the materials the phrase in the context of the containerization and transport of designated for disposal be labeled in chromium standard (OSHA, Nov. 5, recycled materials and asserting its accordance with paragraph (m)(3) of this 2014, Letter of Interpretation, available belief that without the proposed standard. It further noted its expectation at https://www.osha.gov/laws-regs/ changes the disposal and recycling that these proposed changes would standardinterpretations/2014-11-05). provision are technologically and maintain safety and health protections Additionally, as discussed in the economically infeasible (Document ID for workers. Summary and Explanation of the 0038, p. 32). According to Materion, the OSHA received no comments on this definition of the term dermal contact change appropriately accommodates the proposed revision and has therefore with beryllium, the best available various physical properties of beryllium finalized it as proposed. scientific evidence on adverse health materials being recycled, the ‘‘many The seventh and final proposed effects from dermal contact with different applications resulting in many change also relates to the cleaning of beryllium does not provide sufficient types of container configurations,’’ and materials designated for disposal, information to link risk of adverse the ‘‘many types of transfer mechanisms recycling, or reuse. Paragraph (j)(3)(ii) in health effects with specific levels of and end use processing applications’’ the 2017 final rule required the surface contamination. Therefore, the (Document ID 0038, p. 32). No specified materials to be cleaned to be agency has chosen not to require a commenters opposed these revisions as free as practicable of surface specific target level of surface and, therefore, OSHA has decided to beryllium contamination. However, the contamination for any of the surface retain them unchanged from the 2017 final rule did not define the term cleanliness requirements of the proposal. ‘‘surface beryllium contamination’’ and beryllium standards. Instead, the agency Unlike the previous five proposed other parts of the 2017 final rule used has determined that the more changes, the sixth proposed change was the term ‘‘as free as practicable’’ without performance-oriented ‘‘as free as more than a clarifying change from the the ‘‘surface beryllium contamination’’ practicable’’ standard for cleaning— 2017 final rule. Under the 2017 final modifier. To alleviate any potential rather than a more prescriptive rule, employers could either clean or confusion stemming from the agency’s requirement—is appropriate. The enclose materials designated for use of this new, undefined term, OSHA agency finds that the use of the broader recycling. Materials designated for proposed to eliminate any potential standard will better serve employees by disposal, however, could only be confusion by removing the phrase allowing employers in a variety of enclosed; the option to clean the ‘‘surface beryllium contamination.’’ industries flexibility to decide what materials was not available. The OSHA did not receive any comments type of control methods and procedures difference in the two provisions that directly addressed the removal of are best suited to their beryllium stemmed from the concern that this phrase but one stakeholder, DOD, operations. municipal and commercial disposal offered a suggestion. Specifically, DOD Having received no other comments workers should be protected from recommended the use of the Department on this proposed provision, OSHA exposure to beryllium from contact with of Energy’s (DOE’s) cleanliness strikes the phrase ‘‘surface beryllium materials discarded from beryllium standards as specified in Title 10 Code contamination’’ from the regulatory text, work areas in general industry by of Federal Regulations Part 850 as proposed. placing those materials in enclosed (Document ID 0029, p. 1). According to In summary, OSHA is finalizing (j)(3) containers. However, as OSHA DOD, these standards are ‘‘generally- as proposed in 2018, except for the explained in the 2018 NPRM, the acceptable criteria for surface clarifying revision in paragraph (j)(3)(i), agency had not considered situations contamination and were adopted based which explicitly incorporates the intra- where it would be impractical to require on DOE’s assessment of practical plant exception found in paragraphs enclosure because the materials in cleanliness levels and proven (j)(3)(ii) and (j)(3)(iii). OSHA has based question were large items, such as feasibility’’ (Document ID 0029, p. 1). this decision on the record and has machines or structures, that may OSHA agrees that DOE’s standards determined this will maintain or contain at least 0.1 percent beryllium by might be a useful reference for enhance worker protections. weight or be contaminated with employers seeking advice on how to Medical Surveillance. beryllium, rather than more common clean materials prior to transfer for Paragraph (k) of the beryllium items, such as beryllium scrap metal or disposal, reuse, or recycling or how to standard for general industry (29 CFR shavings. determine the effectiveness of existing 1910.1024) addresses medical With that situation in mind, OSHA cleaning efforts and that wipe sampling surveillance requirements. The reconsidered its earlier determination in general can be a useful tool for paragraph specifies which employees

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must be offered medical surveillance, as medical examination at least one year professional medical advice (Document well as the frequency and content of after but no more than two years after ID 0024, p. 2). On the other hand, medical examinations. It also sets forth the employee is exposed to beryllium in Materion argued that the standard the information that must be provided an emergency. OSHA requested protects workers who may have been to the employee and employer. The comments on the appropriateness of this exposed in an emergency, regardless of purposes of medical surveillance for change (83 FR at 63757). when the emergency occurred, by beryllium are (1) to identify beryllium- Several stakeholders commented on requiring employers to make medical related adverse health effects so that this issue. NJH supported extending the surveillance available to any employees appropriate intervention measures can time to offer medical surveillance to one showing signs and symptoms of CBD or be taken; (2) to determine if an year after an emergency because 30 days other beryllium-related health effects employee has any condition that might following a high exposure may not be (Document ID 0038, p. 33). Specifically, make him or her more sensitive to enough time to detect beryllium paragraph (k)(2)(i)(B) requires beryllium exposure; and (3) to sensitization (Document ID 0022, p. 8). employers to provide an examination to determine the employee’s fitness to use Materion also agreed with the proposed these employees within 30 days of personal protective equipment such as one-to-two-year timeframe for determining that the employee shows respirators. The inclusion of medical examinations following exposure during signs or symptoms of CBD. surveillance in the beryllium standard an emergency because 30 days may be After considering these comments and for general industry is consistent with too soon to detect an immunological the record as a whole on this issue, Section 6(b)(7) of the OSH Act (29 change using the BeLPT (Document ID OSHA reaffirms its preliminary belief U.S.C. 655(b)(7)), which requires that, 0038, p. 33). DOSH similarly that testing conducted during the where appropriate, medical surveillance commented that delaying the medical proposed time period of one to two programs be included in OSHA health examination to one year might improve years is more likely to detect standards to aid in determining whether the detection of sensitization because it sensitization than testing conducted 30 the health of employees is adversely may take several months to detect it days following emergency exposure (82 affected by exposure to the hazards (Document ID 0023, p. 2). DOSH also FR at 63757). Nevertheless, DOSH, the addressed by the standard. expressed concern, however, that NSSP, and ACOEM’s concerns about In the 2018 NPRM, OSHA proposed workers would not get counseling about possible delays in medical consultations two sets of changes to paragraph (k). signs and symptoms of beryllium- and examinations and lack of employee The first set of changes proposed is in related conditions, an occupational knowledge of potential health effects paragraph (k)(2), which specifies when history review, and other medical prompted the agency to reevaluate the and how frequently medical advice which may allow for the worker standard’s medical surveillance and examinations were to be offered to those to identify a developing condition training triggers to determine if any employees covered by the medical within the first year after exposure employees could potentially be exposed surveillance program. Paragraph (Document ID 0023, p. 2). DOSH added in an emergency but may not be (k)(2)(i)(B) of the standard requires the that if the medical examination will be knowledgeable about symptoms, health employer to provide a medical delayed, it would be appropriate to have effects, and medical surveillance examination within 30 days after a requirement for additional training or because they have not been trained, or determining that the employee shows a brief medical consultation for workers if any employees might be exposed but signs or symptoms of CBD or other who are not knowledgeable about have not recently received a medical beryllium-related health effects or that beryllium and the potential medical examination during which they had the the employee has been exposed to conditions that may be triggered by opportunity to talk with a PLHCP about beryllium in an emergency. After exposure (Document ID 0023, pp. 2–3). exposure to beryllium. publication of the 2017 final rule, The ACOEM and NSSP shared First, OSHA considered the stakeholders suggested to OSHA that, DOSH’s concerns regarding potential population of employees affected by for individuals exposed one-time during delays in consultations and counseling emergencies. As noted in the 2018 an emergency, 30 days may be (Document ID 0024, p. 2; 0027, p. 4). NPRM, OSHA estimates that a very insufficient to detect beryllium The NSSP recommended an earlier small number of employees, likely less sensitization, so a longer timeframe for discussion with employees exposed in than 0.1 percent of the affected medical examinations may be more an emergency to address their population, would be affected by appropriate (83 FR at 63757). individual concerns, the medical path emergencies in a given year (83 FR at In the 2018 NPRM, OSHA forward, options available, and to 63764). Second, OSHA considered if acknowledged uncertainty regarding the answer any questions the employees any of the small number of employees time period in which sensitization may might have (Document ID 0027, p. 4). It exposed in an emergency in a given year occur following a one-time exposure to suggested that the medical examination would not be knowledgeable about a significant concentration of beryllium could then be scheduled in keeping symptoms, health effects, and medical in an emergency (83 FR at 63757). In with the individual employee’s medical surveillance through the training fact, beryllium sensitization can occur needs (Document ID 0027, p. 4). provided under paragraph (m)(4) at the several months or more after initial ACOEM opposed the change, arguing time of emergency and, thus, might exposure to beryllium among workers that workers who are exposed to need such training after exposure during with regular occupational exposure to beryllium in an emergency deserve an emergency. Paragraph (m)(4)(i) beryllium (see 83 FR at 63757 (citing 82 prompt medical evaluation to requires the employer to provide FR at 2530, 2533)). Based on this understand the potential health risks, information and training in accordance evidence and stakeholder feedback, receive baseline testing, if desired, and with the Hazard Communication OSHA proposed removing the to receive medical counseling Standard (HCS), 29 CFR 1910.1200(h), requirement for a medical examination (Document ID 0024, p. 2). ACOEM for each employee who has, or can within 30 days of exposure in an maintained that it would be ‘‘an reasonably be expected to have, airborne emergency, under paragraph (k)(2)(i)(B), extremely insensitive and harsh change exposure to or dermal contact with and adding paragraph (k)(2)(iv), which in policy’’ to require exposed workers to beryllium. Final paragraph (m)(4)(ii) would require the employer to offer a wait more than a year to receive requires employers to ensure that each

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employee who is, or can reasonably be are reasonably expected to be exposed at These employees may not have baseline expected to be, exposed to airborne or above the action level for more than information on their health status, and beryllium can demonstrate knowledge 30 days per year, (B) employees who they may not have had the opportunity and understanding of a number of show signs or symptoms of CBD or other to speak to a PLHCP to ask questions specified topics, including (1) the health beryllium-related health effects, (C) related to their concerns, such as hazards associated with airborne employees who are exposed to possible health risks, symptoms, and exposure to and dermal contact with beryllium during an emergency, and (D) medical interventions. In contrast, beryllium, including signs and employees whose most recent written employees who had a medical symptoms of CBD; (2) the purpose and medical surveillance opinion required examination within the previous two a description of the medical by paragraph (k)(6) or (k)(7) of the years would have a baseline and have surveillance program under paragraph standard recommends periodic medical had the opportunity to speak with a (k) of the standard, including risks and surveillance. Under paragraph (k)(2)(ii), health professional. Therefore, to benefits of each test to be offered; (3) the employees who continue to meet above- adequately meet the needs of all purpose and a description of the triggers (A), (B), or (D) of the standard employees who may be exposed in an medical removal protection provided receive examinations at least every two emergency, OSHA is deleting final under paragraph (l) of the standard; and years after their most recent paragraph (k)(2)(iv) and replacing it (4) the contents of the standard. examination. Employees previously with paragraphs (k)(2)(iv)(A) and OSHA expects that the vast majority exposed in an emergency (and all other (k)(2)(iv)(B). of employees who could be exposed to employees who have received an New paragraph (k)(2)(iv)(A) addresses beryllium in an emergency are those examination, but no longer meet the the needs of the very small group of who are regularly exposed to beryllium criteria for periodic examinations) employees who are exposed in an as part of their normal work duties continue to be offered a standardized emergency but have not received a performed near processes involving BeLPT or equivalent test at least every medical examination under paragraph beryllium. Therefore, most of those two years, unless they are confirmed (k)(1)(i) within the previous two years. employees are already likely to be positive (paragraph (k)(3)(i)(E); 82 FR at Specifically, paragraph (k)(2)(iv)(A) trained in accordance with the HCS 2705). requires that if an employee is exposed under paragraph (m)(4)(i) because the As noted above, OSHA expects that to beryllium during an emergency and training requirements under paragraph the vast majority of employees who has not received a medical examination (m)(4)(i) are triggered by actual, or could be exposed to beryllium in an under paragraph (k)(1)(i) within the reasonably anticipated, airborne emergency are those who are regularly previous two years, then the employer exposure at any level or dermal contact exposed to beryllium as part of their must provide that employee with a with beryllium. In addition, OSHA normal work duties that are performed medical examination within 30 days of anticipates that most of these employees near processes involving beryllium. As the date of the emergency. New would also be knowledgeable about a result, OSHA expects that the majority paragraph (k)(2)(iv)(B), on the other beryllium-related health effects, medical of employees who could be exposed to hand, focuses on employees who are surveillance, medical removal, and the beryllium in an emergency are likely to exposed during an emergency, but have remainder of the standard, as required be those who meet the trigger for recently received an examination. by paragraph (m)(4)(ii). Nevertheless, if periodic medical surveillance under Under paragraph (k)(2)(iv)(B), if an an employee who had not been trained paragraph (k)(1)(i)(A) (i.e., they are or employee has received a medical in accordance with paragraph (m)(4) or are reasonably expected to be exposed at examination under paragraph (k)(1)(i) was not knowledgeable of the subjects or above the action level for more than within the previous two years, then the covered in paragraph (m)(4)(ii) was 30 days per year). Thus, they have likely employer would be required to offer that exposed in an emergency, the standard had an opportunity to consult with a employee a medical examination that would require that the employee be PLHCP at a minimum of every two years meets the requirements of the standard trained after the emergency because the (paragraph (k)(2)(ii)). Other employees at least one year but no more than two exposure during the emergency would exposed during an emergency may have years after the employee was exposed to cause them to meet the standard’s also had a recent examination because beryllium in an emergency. training triggers. In other words, the they have recently met one of the other OSHA concludes that it is appropriate standard already provides for training of triggers, such as experiencing signs or to provide a medical examination the very small number of untrained or symptoms of CBD or other beryllium- within 30 days after the employee was unknowledgeable employees who might related health effects. OSHA recognizes, exposed in an emergency, if the be exposed during an emergency.20 however, that a much smaller number of employee has not had an examination Third, OSHA considered if any employees, such as office and under the beryllium standard within the employees exposed during an warehouse workers, who do not have last two years. It addresses the concerns emergency would likely not have regular exposures to beryllium at or of DOSH, ACOEM, and the NSSP that received a recent examination under the above the action level and have also not employees receive timely medical standard. Under paragraph (k)(1)(i), the met one of the other medical consultations and evaluations. If an employer must make medical surveillance triggers, could potentially employee has not had a previous surveillance available to four groups of be exposed to beryllium in an examination under the standard, the employees: (A) Employees who are or emergency. These employees may have examination at 30 days after the never received a medical examination or emergency allows for collection of 20 OSHA notes that the standard would require a BeLPT or equivalent test. baseline values on health status, as additional training for workers who were exposed OSHA agrees with ACOEM that it is recommended by ACOEM. Baseline during an emergency who had already been trained if the employer realized that those workers were not unacceptable to have employees who information about the employee’s knowledgeable about topics such as the potential have not recently been offered a medical current health status, such as lung medical conditions which may result from exposure examination under the beryllium function, will allow for a comparison to beryllium or symptoms that may trigger a standard wait for a year or more for a with changes that might occur in the medical examination (see paragraph (m)(4)(ii)(A); see also additional training requirements under medical consultation and examination future. Moreover, if the employee is paragraph (m)(4)(iii)). after exposure during an emergency. confirmed positive by the baseline

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BeLPT and there is a possibility that the If the employee is confirmed positive, or that could detect any adverse effects employee could be exposed to beryllium if the licensed physician otherwise that might have occurred because of the again in the future, knowledge about the deems it appropriate, the licensed emergency. OSHA agrees with DOSH confirmed positive finding would allow physician is to provide in the written that further revision is necessary to the employee to consider risks and medical opinion to the employee a ensure that every employee who is options related to employment (82 FR at referral to a CBD diagnostic center and exposed in an emergency receives an 2702). a recommendation for continued examination following the emergency. OSHA recognizes, as NJH, DOSH, and periodic medical surveillance under Accordingly, OSHA is revising Materion noted, that 30 days following paragraph (k)(5)(iii) and (iv). If the paragraph (k)(2)(iii) to require that each the emergency is not the best timeframe employee authorizes the employee who is exposed in an for detecting sensitization. However, recommendation for referral to be emergency and has not received an paragraph (k)(3)(ii)(E) of the beryllium included in the written opinion, the examination since the emergency standard for general industry already employer must provide an examination exposure is provided an examination at requires that employees who received a at a CBD diagnostic center (discussed in the time employment is terminated. medical examination because of an more detail below) (paragraph OSHA finds that this change better emergency exposure continue to receive (k)(6)(iii)). Once an employee is protects employees because it allows a BeLPT, or an equivalent test, every evaluated at a CBD diagnostic center, as health effects that could have resulted two years following that examination, described under paragraph (k)(7)(i), the from the emergency exposure to be more unless the employee is confirmed employee may choose to have any readily detected. positive. Therefore, the standard already subsequent medical examinations for In making these decisions on the requires the employers to offer these which the employee is eligible, appropriate timing for medical employees a BeLPT for the remainder of performed at the CBD diagnostic center examinations for employees exposed to their tenure in the workplace where at no cost to the employee (see final beryllium during an emergency, OSHA they were exposed in an emergency, paragraph (k)(7)(vi)). Therefore, the considered Materion’s point that rather than limiting the opportunity to standard already allows for periodic employees experiencing signs or detect sensitization to 30 days following BeLPT testing for all employees exposed symptoms or other beryllium-related the emergency. in an emergency, and periodic medical health effects after an emergency can OSHA also concludes that it is surveillance for any of those employees ask for an examination under paragraph appropriate to require employers to offer who are confirmed positive. (k)(1)(i)(B) (Document ID 0038, p. 33). medical surveillance within one to two As explained above, all employees who years after exposure to beryllium in an Another concern that was raised by are exposed in an emergency will either emergency, if that employee had an DOSH is that delaying the medical have previously received training under examination that meets the examination to at least one year paragraph (m)(4) or will need to be requirements of the beryllium standard following the emergency may result in trained within a reasonable time after within the last two years. These employees not receiving the exposure. And these employees should employees could include those who examination if their employment ends already be knowledgeable or will soon undergo periodic medical surveillance within that one-year period (Document become knowledgeable about the health at least every two years under paragraph ID 0023, p. 3). This concern continues hazards associated with airborne (k)(2)(A) or (D), or who may have to be relevant to employees who are exposure to and dermal contact with received a medical examination within receiving the examination for an beryllium, including signs and the last two years because they were emergency exposure at one to two years symptoms of CBD, as required by experiencing symptoms or were after the exposure in the emergency paragraph (m)(4)(ii). Therefore, all exposed in a previous emergency (paragraph (k)(2)(iv)(B)). If employment employees exposed during an (paragraphs (k)(2)(B) and (C)). These does end before one year after the emergency should be able to identify employees would have received a recent emergency, paragraphs (k)(2)(iii) and and report signs or symptoms of CBD or medical consultation and examination (1)(i)(C) require the employer to offer a other beryllium-related health effects which would have allowed them to ask medical examination at termination of either at the time of the emergency or questions. In addition, these employees employment to any employee exposed within a reasonable time after it. would have received a baseline to beryllium in an emergency, unless Materion is, thus, correct in pointing out examination. Like the employees the employee received an examination that if these employees did experience examined within 30 days after exposure in accordance with the standard within such signs or symptoms, they could ask to beryllium in an emergency, all these the last 6 months. OSHA is concerned for a medical examination. Other employees examined within one to two that this provision would not require employees exposed during an years of the emergency will continue to employers to offer a medical emergency that have not had an be offered BeLPT testing every two years examination to some employees who examination and do not experience under paragraph (k)(3)(ii)(E) if they have would receive the emergency these health effects, however, would not been confirmed positive and do not examination at one to two years after the still not have had the opportunity for a or no longer meet the criteria for full emergency exposure. For example, if timely consultation and medical periodic medical examinations under such an employee, already under examination with a PLHCP. paragraph (k)(2)(ii). medical surveillance, received a Consequently, OSHA does not find that The requirement for continuing medical examination one month before the signs-or-symptoms trigger is BeLPTs for any employee who has the emergency and then terminated sufficient to resolve the concerns raised received an examination under the employment two months after the by the other stakeholders. beryllium standard, including for an emergency, the employer would not be OSHA also proposed one additional emergency exposure, addresses another required to offer a medical examination change to the paragraph involving concern voiced by NJH, which is that to that employee exposed during the emergency exposure. As promulgated in anyone exposed in an emergency should emergency under the proposed changes, the 2017 final rule, paragraph (k)(2)(i)(B) be provided periodic medical and the employee would not have an required the employer to provide a surveillance (Document ID 0022, p. 8). opportunity to have an medical exam medical examination within 30 days

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after the employer determines that an employee was exposed to beryllium in three ways. First, OSHA is revising employee shows signs or symptoms of an emergency, if the employee has not paragraph (k)(7)(i) to require that the CBD or other beryllium-related health had an examination under paragraph evaluation must be scheduled within 30 effects or has been exposed to beryllium (k)(1)(i) within the last two years. This days, and must occur within a in an emergency. Because OSHA requirement improves protections for reasonable time, of the employer believes that employers typically will what is likely to be a very small group receiving one of the types of learn of any emergency resulting in of employees who have not had a documentation listed in paragraph exposure immediately or soon after it medical examination under the (k)(7)(i)(A) or (B). Second, OSHA is occurs, OSHA preliminarily determined beryllium standard within the last two adding a provision, in paragraph that it is appropriate to measure the years because it allows those employees (k)(7)(ii), which clarifies that, as part of time period from the date of exposure. to have a timely consultation and the evaluation at the CBD diagnostic Therefore, under proposed paragraph examination. Paragraph (k)(2)(iv)(B) will center, the employer must ensure that (k)(2)(iv), the time period for providing require the employer to offer a medical the employee is offered any tests a medical examination begins to run examination to an employee within one deemed appropriate by the examining from the date the employee is exposed to two years after the employee was physician at the CBD diagnostic center, during an emergency, regardless of exposed to beryllium in an emergency, such as pulmonary function testing (as when the employer discovers that the if the employee had an examination outlined by the American Thoracic exposure occurred. OSHA requested under paragraph (k)(1)(i) of the Society criteria), bronchoalveolar lavage comments on the appropriateness of beryllium standard within the last two (BAL), and transbronchial biopsy. The calculating the time period for a medical years. This provision eliminates the new provision also states that if any of examination from the occurrence of the requirement to offer an examination the tests deemed appropriate by the emergency rather than from the within 30 days to the majority of examining physician are not available at employer’s determination of eligibility. employees who are likely to be exposed the CBD diagnostic center, they may be Materion agreed with OSHA that most in an emergency and have already performed at another location that is employers will learn about the received a recent medical examination. mutually agreed upon by the employer emergency resulting in exposure Thus, these employees would have and the employee. Third, OSHA is immediately or soon after the received a baseline examination and a making a handful of minor, non- occurrence, and it supported measuring recent consultation regarding beryllium. substantive numbering and reference the time period from the date of the And either group will continue to be edits to other provisions in paragraph exposure, provided that the employer offered the BeLPT, or an equivalent test, (k)(7) to account for the addition of new determined that the incident can be every two years under paragraph paragraph (k)(7)(ii). Specifically, OSHA defined as an emergency under the (k)(3)(ii)(E), even if they do not or no is renumbering current paragraphs standard (Document ID 0038, pp. 33– longer meet the criteria for full periodic (k)(7)(ii), (iii), (iv), and (v) as (k)(7)(iii), 34). OSHA did not receive any medical examinations under paragraph (iv), (v), and (vi), respectively, and is comments objecting to OSHA’s proposal (k)(ii). OSHA is also revising paragraph adding a reference to new paragraph to measure the time period from the (k)(2)(iii) to require that employers offer (k)(7)(ii) to the newly renumbered date of exposure in an emergency; a medical examination to any employee paragraph (k)(7)(vi). therefore, OSHA is retaining the who has not received an examination Each of these final revisions differ in proposed language to measure the time since the emergency exposure at the some way from the proposed period from the date of the exposure in time the employee’s employment is amendments based on stakeholder the emergency in final paragraphs terminated. Again, OSHA expects this to feedback. With regard to the first change (k)(2)(iv)(A) and (B). be a very small group of employees that concerning the timing of the exam, the Paragraph (k)(2)(iv)(B) does not would have had an exam within six current standard requires employers to preclude employers from voluntarily months of termination but not have had provide the examination within 30 days providing a medical examination within an exam since exposure during an of the employer receiving one of the the first year after an emergency. emergency. This change ensures that all types of documentation listed in Providing a medical examination sooner employees exposed in an emergency paragraph (k)(7)(i)(A) or (B). The would not, however, relieve an receive a medical examination for the purpose of the 30-day requirement was employer of the duty to provide an emergency exposure before their to ensure that employees receive the exam in the one-to-two-year window. employment is terminated. examination in a timely manner. As For those employees who are already In addition, other provisions in the OSHA explained in the proposal, eligible for periodic medical standard ensure that either group of however, since the publication of the surveillance, the examination for the employees (i.e., those who receive a 2017 final rule stakeholders have raised emergency exposure could be scheduled medical examination within 30 days or concerns that the examination and any to coincide with the next periodic one to two years after an emergency) are required tests could not be scheduled examination that is within two years of knowledgeable about the signs and and completed within 30 days (83 FR at the last periodic medical examination symptoms of CBD and that if employees 63758). and at least one but no more than two are experiencing signs and symptoms, To address this concern, OSHA years after the emergency exposure, they will be provided a medical proposed that the employer provide an satisfying the requirements of both examination within 30 days of the initial consultation with the CBD paragraphs (k)(2)(ii) and (iv)(B). employer determining that they are diagnostic center, which could occur via In summary, OSHA is modifying experiencing such signs or symptoms. telephone or virtual conferencing proposed paragraph (k)(2)(iv) to The second (and final) set of changes methods, rather than the full evaluation, customize protections for two general that OSHA proposed to the standard’s within 30 days of the employer groups of employees who could be medical surveillance requirements is in receiving one of the types of exposed to beryllium in an emergency. paragraph (k)(7), which contains the documentation listed in paragraph Paragraph (k)(2)(iv)(A) will require the requirements for evaluation at a CBD (k)(7)(i)(A) or (B). OSHA explained that employer to offer a medical examination diagnostic center. In this final rule, providing a consultation before the full to an employee within 30 days after the OSHA is amending paragraph (k)(7) in examination at the CBD diagnostic

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center would demonstrate that the redundancy with the PLHCP the employee be examined within a employer made an effort to begin the consultation (Document ID 0021, p. 3). timely period, while providing process for a medical examination. The ATS and NJH recommended that employees and employers with OSHA also noted that the proposed the standard be revised to require that maximum flexibility and convenience. change would also allow (1) the the employer make an appointment for Although OSHA understands DOD’s employee to consult with a physician to the employee to be evaluated at the CBD concerns about making a timely discuss concerns and ask questions diagnostic center within 30 days of appointment, requiring that an while waiting for a medical receiving documentation for the referral appointment be made within a seven- examination, and (2) the physician to (Document ID 0021, p. 3; 0022, p. 6). day period might not give the employee explain the types of tests that are DOD also opposed requiring an enough time to consider his or her recommended based on medical evaluation by telephone or virtual future obligations and possibly have findings about the employee and the conferencing and stated that an ill discussions with family members to risks and benefits of undergoing such worker should be examined determine the best time period for the testing. OSHA requested comments on immediately; it recommended that the examination. OSHA believes that a 30- the appropriateness of providing the employer make the appointment for day period to schedule an appointment consultation within 30 days and on the evaluation at a CBD diagnostic center for an examination is a reasonable time sufficiency of a consultation via within seven days of receiving that allows the employee to consider his telephone or virtual conference (83 FR documentation for a referral (Document or her preferences for an examination at 63758). ID 0029, p. 2). date. In addition, a 30-day period offers Several stakeholders offered After considering these comments, more administrative convenience for comments on this issue (Document ID OSHA is convinced that scheduling a employers because it is consistent with 0021, p. 3; 0022, p. 6; 0029, p. 2; 0038, phone or virtual consultation with the other triggers in the beryllium standard. p. 34). The ATS, NJH, and Materion CBD diagnostic center is an unnecessary The second change that OSHA agreed that an examination at the CBD step that adds logistical complications proposed to paragraph (k)(7)(i) relates to diagnostic center should not be required and costs. Although the agency the contents of the examination at the to occur within 30 days of the referral understands Materion’s point that the CBD diagnostic center. As discussed in because it may take weeks or months additional consultation could provide more detail above, the former definition before the CBD diagnostic center has an employees with more time and of CBD diagnostic center—which stated opening for an evaluation. In addition, information to make medical decisions, that the evaluation at the diagnostic many of the stakeholders noted that as well as accommodate other center ‘‘must include’’ a pulmonary work responsibilities, personal and scheduling logistics, OSHA finds that function test as outlined by American family obligations, or the need to the scheduling approach suggested by Thoracic Society criteria, arrange travel may make it difficult for the ATS and NJH addresses both the bronchoalveolar lavage (BAL), and employees to have an evaluation done logistical difficulties cited by transbronchial biopsy—could have been within that time period. stakeholders with respect to the misinterpreted to mean that the Materion also supported the proposed requirements in the current standard examining physician was required to requirement for a telephone or virtual and the timing concerns Materion perform each of these tests during every consultation within 30 days, claiming raised. Moreover, OSHA finds that clinical evaluation at a CBD diagnostic that it is a more workable solution that employees will have enough center. That was not OSHA’s intent. does not reduce protections, while information (through trainings under Rather, the agency merely intended to allowing employees to consider medical paragraph (m) and discussions with the ensure that any CBD diagnostic center options available under the standard PLHCP) to allow them to decide has the capacity to perform any of these and offering the employee more whether to be evaluated at the CBD tests, which are commonly needed to flexibility in determining when they can diagnostic center.21 OSHA is therefore diagnose CBD. Therefore, OSHA undergo testing based on their amending paragraph (k)(7)(i) to require proposed revising the definition to availability and preference (Document that the employer schedule an clarify that the CBD diagnostic center ID 0038, p. 34). In contrast to Materion, examination at a CBD diagnostic center must simply have the ability to perform the ATS and NJH opposed the proposed within 30 days of receiving one of the each of these tests when deemed requirement for a consultation that can types of documentation listed in appropriate. be performed via telephone or virtual paragraph (k)(7)(i)(A) or (B). And to To account for that proposed change conferencing within 30 days of the maintain the intent of the 2017 final to the definition of CBD diagnostic employer receiving documentation rule and the 2018 NPRM that evaluation center and to ensure that the employer recommending a referral. NJH at a CBD diagnostic center occurs in a provides those tests if deemed commented that a video or phone timely manner, OSHA is adding that the appropriate by the examining physician consultation would add cost and evaluation must occur within a at the CBD diagnostic center, OSHA logistical difficulty to scheduling, and reasonable time. Requiring that the proposed expanding paragraph (k)(7)(i) that it is not necessary because the evaluation occur within a reasonable to require that the employer provide, at PLHCP who sees the employee for time ensures that the evaluation is done no cost to the employee and within a screening provides information on the as soon as practicable based upon reasonable time after consultation with clinical evaluation. Furthermore, they availability of openings at the CBD the CBD diagnostic center, any of the commented, there are HIPAA privacy diagnostic center and the employee’s three tests mentioned above, if deemed issues of a phone or video conference to preferences. This revision better appropriate by the examining physician consider (Document ID 0022, p. 6). addresses OSHA’s original intent that at the CBD diagnostic center (83 FR at The ATS agreed with many of the 63764). OSHA explained that the concerns expressed by NJH, including 21 Under paragraph (k)(6)(i)(D), the employer is to revision would also clarify the agency’s concerns regarding logistical challenges, ensure that the PLHCP explains the results of the original intent that, instead of requiring the need for an in-person clinical medical examination to the employee, including all three tests to be conducted after results of tests conducted and medical conditions evaluation and review of medical tests related to airborne beryllium exposure that require referral to a CBD diagnostic center, the to provide effective care, and further evaluation or treatment. standard would allow the examining

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physician at the CBD diagnostic center intends for the employer to ensure the necessary, based on the findings of the the discretion to select one or more of employee is offered any tests deemed medical examination (see 82 FR at 2709; those tests as appropriate (83 FR at appropriate by the examining physician 81 FR 16286, 16826 (March 25, 2016)). 63764). at the CBD diagnostic center, including New paragraph (k)(7)(ii) also Several stakeholders offered opinions tests for diagnosing CBD, for addresses the possibility that a test that on these proposed changes. For determining its severity, and for is deemed appropriate by the examining example, Materion agreed with the monitoring progression of CBD physician at the CBD diagnostic center proposed changes to align paragraph following diagnosis. Allowing the might not be available at that center. (k)(7)(i) with the definition for CBD physician at the CBD diagnostic center Although OSHA’s intention has been to diagnostic center (Document ID 0038, p. to order additional tests that are deemed require any testing to be provided by the 34). However, as discussed above in the appropriate is also consistent with most same CBD diagnostic center unless the Summary and Explanation of paragraph OSHA substance-specific standards, employer and employee agree to a (b), Definitions, the ATS argued that such as respirable crystalline silica (29 different CBD diagnostic center (see 83 ‘‘not requiring certain diagnostic tests CFR 1910.1053) and chromium (VI) (29 FR at 63758), there may be cases where (or an equivalent) could reduce the CFR 1910.1026). the CBD diagnostic center does not potential to diagnose CBD and To clarify the agency’s intent that the perform a type of test deemed determine disease severity’’ (Document physician at the CBD diagnostic center appropriate by the examining physician. ID 0021, p. 3). The ATS further asserted has discretion to order appropriate tests, In such a case, OSHA wants to ensure that ‘‘confirmed positive workers should and to further respond to stakeholder that the employee can receive the have an assessment of lung function and concerns regarding the necessity of appropriate test. Therefore, OSHA is gas exchange (such as a full set of pulmonary function testing, BAL, and also including in paragraph (k)(7)(ii) a pulmonary function tests with transbronchial biopsies, OSHA is requirement that if any of those tests spirometry, lung volumes and diffusion adding a new sub-paragraph (k)(7)(ii), deemed appropriate by the physician capacity for carbon monoxide or other which focuses on the content of the are not available at the CBD diagnostic similar tests) and also chest imaging’’ examination. This new provision center, they may be performed at (Document ID 0021, p. 3). NJH and the requires the employer to ensure that, as another location that is mutually agreed AOEC expressed similar concerns, part of the evaluation, the employee is upon by the employer and the commenting that lung function and offered any tests deemed appropriate by employee. This other location does not imaging tests should be included as part the examining physician at the CBD need to be a CBD diagnostic center as of an evaluation at the CBD diagnostic diagnostic center, such as pulmonary long as it is able to perform tests center (Document ID 0022, p. 3; 0028, p. function testing (as outlined by the according to requirements under 2). After reviewing these comments and American Thoracic Society criteria), paragraph (k). OSHA believes that such the remainder of the record on this bronchoalveolar lavage (BAL), and circumstances would be very rare issue, OSHA agrees that pulmonary transbronchial biopsy. OSHA intends because CBD diagnostic centers with the function testing, BAL, and for the new provision to make clear that ability to perform pulmonary function transbronchial biopsies are important the employer must provide additional testing (as outlined by the ATS criteria), diagnostic tools, but finds that the tests, such as those noted by the ATS, BAL, and transbronchial biopsy are examining physician at the CBD NJH, and the AOEC, at no cost to the likely to also provide other medical tests diagnostic center is in the best position employee, if those tests are deemed related to CBD.22 As a result, the CBD to determine which diagnostic tests are necessary by the examining physician. diagnostic center in the vast majority of appropriate for particular workers. The The agency also believes that explicitly cases will be able to offer the additional agency believes that the modified naming the three examples of tests that testing deemed necessary by the definition of the term CBD diagnostic may be appropriate will further examining physician. Given that this center, which requires the centers to emphasize their importance to standard requires CBD diagnostic have the capacity to perform these three examining physicians at the CBD centers to be able to perform the three tests, will serve to ensure that diagnostic centers. most common tests for diagnosing CBD, Consistent with OSHA’s original healthcare providers at the centers are and CBD diagnostic centers typically aware of the importance of and are able intent, those tests are required to be would be able to offer any additional to perform pulmonary function testing, offered only if deemed appropriate by tests deemed necessary, OSHA expects BAL, and transbronchial biopsies. the physician at the CBD diagnostic Nevertheless, OSHA understands that center. For example, if lung volume and that employees would rarely, if ever, the proposed provision could be diffusion tests were performed need to travel to a second location. In summary, final paragraph (k)(7)(i) misinterpreted to mean that the according to the ATS criteria as part of requires that the employer provide an employer does not have to make the periodic medical examination under evaluation at no cost to the employee at available additional tests that the paragraph (k)(3) and the physician at the a CBD diagnostic center that is mutually examining physician deems appropriate CBD diagnostic center found them to be agreed to by the employer and the for diagnosing or determining severity of acceptable quality, those tests would of CBD. That was never the agency’s not have to be repeated as part of a CBD employee. The evaluation must be intent. In fact, OSHA noted the potential evaluation. The addition of paragraph scheduled within 30 days and must for other tests, as deemed necessary by (k)(7)(ii) clarifies that the employer occur within a reasonable time of the the CBD diagnostic center physician, must, however, offer any test that the employer receiving one of the types of several times in the preamble to the PLHCP deems appropriate. Consistent documentation listed in paragraph 2017 final rule (see, e.g., 82 FR at 2709, with previous health standards and the (k)(7)(i)(A) or (B). Final paragraph 2714). Similar to paragraph (k)(3)(ii)(G), meaning of the identical phrase in (k)(7)(ii) requires the employer to ensure which requires the employer to ensure paragraph (k)(3)(ii)(G), OSHA intends that, as part of the evaluation, the that the employee is offered as part of the phrase ‘‘deemed appropriate’’ to 22 Document ID OSHA–H005C–2006–0870–0637 the initial or periodic medical mean that additional tests requested by provides information from the NJH website, which examination any test deemed the physician must be both related to provides an overview of the types of tests appropriate by the PLHCP, OSHA beryllium exposure and medically performed.

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employee is offered any tests deemed standard. Paragraph (l)(1) of the container of beryllium-contaminated appropriate by the examining physician standard details the eligibility items and not larger containers holding at the CBD diagnostic center, such as requirements for medical removal. Two the labeled bag or container. OSHA pulmonary function testing (as outlined of the criteria, those in (l)(1)(i)(B) and proposed this change to be consistent by the American Thoracic Society (l)(1)(ii) reference paragraphs (k)(7)(ii) with the HCS, which requires only the criteria), bronchoalveolar lavage (BAL), and (k)(7)(iii), respectively. In this final primary or immediate container to be and transbronchial biopsy. Paragraph rule, OSHA is updating those references labeled (see 29 CFR 1910.1200(c)) (k)(7)(ii) further provides that any test to reflect the renumbering in paragraph (definition of ‘‘Label’’). OSHA explained deemed appropriate by the examining (k)(7). Therefore, final paragraph that this proposed change would physician that is not available at the (l)(1)(i)(B) references paragraph effectuate OSHA’s intent, expressed in CBD diagnostic center may be (k)(7)(iii) and paragraph (l)(1)(ii) the 2017 final rule, that the hazard performed at another location that is references paragraph (k)(7)(iv). These communication requirements of the agreed upon by the employer and edits, like those noted above in beryllium standard ‘‘be substantively as employee. Such tests must be provided paragraph (k)(7)(vi), do not change the consistent as possible’’ with the HCS (82 at no cost to the employee, whether substantive meaning of the provisions. FR at 2694, 2724). As such, OSHA performed at the CBD diagnostic center Communication of Hazards. preliminarily determined that the or at another location. Paragraph (m) of the beryllium change would maintain safety and As noted above, OSHA is also making standard for general industry (29 CFR health protections for workers. a handful of minor, non-substantive 1910.1024(m)) sets forth the employer’s Next, OSHA proposed two revisions numbering and reference edits to other obligation to comply with the Hazard to paragraph (m)(4), which addresses provisions in paragraph (k)(7) to Communication standard (HCS) (29 CFR employee information and training. account for the addition of new 1910.1200) relative to beryllium and to Paragraph (m)(4)(ii) requires the paragraph (k)(7)(ii). Specifically, OSHA take additional steps to warn and train employer to ensure that each employee is renumbering current paragraphs employees about the hazards of who is, or can reasonably be expected (k)(7)(ii)–(v) as (k)(7)(iii), (iv), (v), and beryllium. Under the HCS, beryllium to be, exposed to airborne beryllium can (vi), accordingly, and is adding a manufacturers and importers are demonstrate knowledge and reference to new paragraph (k)(7)(ii) to required to evaluate the hazards of understanding of certain specified the newly renumbered paragraph beryllium and prepare labels and safety topics. One of the topics specified in the (k)(7)(vi). Paragraph (k)(7)(vi) provided data sheets (SDSs) and provide both previous standard was the health that after an employee received the documents to downstream users. hazards associated with ‘‘airborne initial clinical evaluation at the CBD Employers whose employees are exposure to and contact with diagnostic center described in paragraph exposed to beryllium in their workplace beryllium,’’ including the signs and (k)(7)(i), the employee could choose to must develop a hazard communication symptoms of CBD (83 FR at 63759). have any subsequent medical program and ensure that employees are OSHA proposed to modify this language evaluations for which the employee is trained on the hazards of beryllium. by adding the word ‘‘dermal’’ eligible under paragraph (k) performed These employers must also ensure that immediately prior to ‘‘contact with at a CBD diagnostic center mutually all containers of beryllium are labeled beryllium.’’ OSHA explained that the agreed upon by the employer and and that employees are provided access change would clarify OSHA’s intent that employee and that the employer must to the SDSs. In addition to the employers must ensure that exposed provide such examinations to the requirements under the HCS, paragraph employees can demonstrate knowledge employee at no cost. OSHA is revising (m)(1)(ii) of the beryllium standard for and understanding of the health hazards the paragraph to add the reference to general industry specifies certain caused by dermal contact with new paragraph (k)(7)(ii) because the criteria that must be addressed in beryllium. description of the initial clinical classifying the hazards of beryllium. OSHA also proposed to modify the evaluation is now split between Paragraph (m)(2) requires employers to language in paragraph (m)(4)(ii)(E), paragraph (k)(7)(i) and (ii), rather than provide and display warning signs with which required the employer to ensure appearing solely in paragraph (k)(7)(i). specified wording at each approach to a that each employee who is, or can OSHA does not expect that this regulated area. Paragraph (m)(3) requires reasonably be expected to be, exposed to clarifying change will have any employers to label each container of airborne beryllium can demonstrate substantive effect. Newly renumbered clothing, equipment, and materials knowledge and understanding of paragraph (k)(7)(vi) (previous paragraph contaminated with beryllium using measures employees can take to protect (k)(7)(v)), therefore, continues to require specified language. Finally, paragraph themselves from ‘‘airborne exposure to that, after an employee has received the (m)(4) details employers’ duties to and contact with beryllium,’’ including initial clinical evaluation at a CBD provide information and training to personal hygiene practices (83 FR at diagnostic center, the employee may employees. 63759). As with the previous revision, choose to have any subsequent medical In the 2018 NPRM, OSHA proposed OSHA proposed adding the word examinations for which the employee is three revisions to paragraph (m) of the ‘‘dermal’’ to ‘‘contact with beryllium’’ to eligible under paragraph (k) of this beryllium standard for general industry clarify OSHA’s intent that employers standard performed at a CBD diagnostic (83 FR at 63759–60, 63769). The first must ensure exposed employees can center mutually agreed upon by the change is related to paragraph (m)(3), demonstrate knowledge and employer and the employee, and the which previously required employers to understanding of measures employees employer must provide such label ‘‘each bag and container’’ of can take to protect themselves from examinations at no cost to the clothing, equipment, and materials dermal contact with beryllium. employee. contaminated with beryllium. In the Commenters did not object to any of The addition of paragraph (k)(7)(ii) 2018 NPRM, OSHA proposed to replace the changes that OSHA proposed to and consequential renumbering of the phrase ‘‘each bag and container’’ paragraph (m). In fact, the only current paragraphs (k)(7)(ii)–(v) as with the phrase ‘‘each immediate stakeholder that offered any comments (k)(7)(iii), (iv), (v), and (vi) also affects container,’’ to clarify that the employer on these revisions, Materion, generally two other cross-references in the need only label the immediate bag or supported the proposed changes,

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commenting that the changes will 2018 NPRM. Consistent with the SIP–IV or to remove SSNs from existing records maintain safety and health protections proposal, OSHA proposed to modify the (81 FR at 68528). for employees (Document ID 0038, p. beryllium standard for general industry As discussed in the preamble to the 34). OSHA agrees with this assessment by removing the requirement to include SIP–IV final rule, the comments that and finds that the proposed changes SSNs in the recordkeeping provisions in OSHA received in response to the SIP– will clarify employers’ requirements for paragraphs (n)(1)(ii)(F) (air monitoring IV NPRM advocated against requiring the communication of hazards of data), (n)(3)(ii)(A) (medical employers to use an alternative type of beryllium. Therefore, OSHA is surveillance), and (n)(4)(i) (training). employee identifier or to remove SSNs finalizing the proposed changes to OSHA noted that these proposed from existing records (84 FR at 21440). paragraph (m) in this final rule. revisions would address the privacy For example, the Construction Industry Recordkeeping. concerns raised in response to the 2015 Safety Coalition (CISC) supported Paragraph (n) of the beryllium NPRM, while maintaining safety and OSHA’s statements in the SIP–IV NPRM standard for general industry requires health protection for workers. that employers would not be required to employers to make and maintain air Three commenters, Phylmar delete employee SSNs from existing monitoring data, objective data, and Regulatory Roundtable, DOD, and records, would not be required to use an medical surveillance records, and Materion, expressed general support for alternative employee identifier on prepare and maintain training records. the proposed changes to the existing records, and would still be The 2017 final rule required employers’ recordkeeping provisions (Document ID permitted to use SSNs if they wish to do air monitoring data ((n)(1)(ii)(F)), 0020, p. 1; 0029, p. 1; 0038, p. 34), and so. CISC stated that limiting employers’ medical surveillance ((n)(3)(ii)(A)), and no commenters expressed opposition to flexibility to come up with an training ((n)(4)(i)) records to include OSHA’s proposal to remove the identification system that works best for employee Social Security Numbers requirement to include each employee’s their situations would create an undue (SSNs). In the 2018 NPRM, OSHA SSN in these three sets of records. After compliance burden (84 FR at 21440). proposed to modify paragraph (n) to reviewing these comments, OSHA is After considering the comments, OSHA remove that requirement. This final rule finalizing the proposed deletion of the decided in the SIP–IV final rule to adopts the proposed revisions, SSN requirements in this final rule. This proceed with removing the SSN eliminating the requirement to include change is also consistent with the collection requirements from previously employee SSNs in these records. agency’s decision in the SIP–IV published standards, but not to require The issue of whether to include rulemaking, which was finalized in the employers to delete employee SSNs employee SSNs in records under months since the publication of the from existing records or to use an OSHA’s standards for beryllium dates 2018 NPRM (84 FR 21416 (May 14, alternative employee identifier. back to the 2015 beryllium NPRM. In 2019)). The SIP–IV final rule deletes the In order to maintain consistency that NPRM, OSHA proposed to require among OSHA recordkeeping requirement to include employee SSNs inclusion of employee SSNs in records requirements for substance-specific in records employers must maintain related to air monitoring, medical standards, the agency has decided not to under the substance-specific standards surveillance, and training, similar to require employers to delete employee that existed at the time of OSHA’s 2016 provisions in previous substance- SSNs from existing records relating to SIP–IV proposal (see 84 FR at 21439– specific health standards. Some beryllium or to use an alternative 40).23 The deletion of the SSN stakeholders objected to the proposed employee identifier. The final rule requirements in the beryllium general requirement based on employee privacy allows employers the option to still use industry standard will, thus, bring this and identity theft concerns (82 FR at SSNs or to use some other alternative 2730). OSHA recognized the validity of standard into line with the majority of employee identifier system, as these concerns, but preliminarily OSHA’s other substance-specific explained in the SIP–IV final rule. This concluded that due to the agency’s past standards. will give employers the flexibility to consistent practice of requiring an OSHA received one other comment choose the best option for their employee’s SSN on records, any change related to SSNs in this rulemaking. A particular circumstance and will avoid to this requirement should be private citizen agreed that the proposed unnecessarily increasing employers’ comprehensive and apply to all OSHA changes were ‘‘necessary and compliance burdens. standards, not just the standards for appropriate,’’ but expressed concerns Additional Comments. beryllium (82 FR at 2730). that there is no additional requirement The scope of the 2018 proposal was In 2016, in its Standards Improvement to remove SSNs from existing records limited to the specific revisions and Project-Phase IV (SIP–IV) proposed rule and that allowing employers the option clarifications to the beryllium standard (81 FR 68504, 68526–28 (October 4, to continue using SSNs will not identified in the NPRM. The NPRM did 2016)), OSHA proposed to delete the effectively protect employee privacy not invite comment on all of the requirement that employers include (Document ID 0017). OSHA understands agency’s underlying determinations employee SSNs in records required by the private citizen’s concerns. The SIP– from the 2017 beryllium final rule. As the agency’s substance-specific IV NPRM did not propose to require such, OSHA determined that some standards. The 2017 final rule for employers to remove employee SSNs comments the agency received in beryllium included the SSN from existing records or to prohibit response the 2018 NPRM pertained to requirements, but, in the preamble, employers from using employee SSNs in subjects outside the scope of the OSHA recognized that the SIP–IV their records. The agency did, however, proposal. OSHA briefly addresses these rulemaking was ongoing and stated that request comment on whether employers comments below. it would revisit its decision to require should be required to use an alternative Two commenters addressed issues employers to include SSNs in beryllium identification system rather than SSNs, related to OSHA’s significant risk records in light of the SIP–IV finding from the 2017 final rule. One rulemaking, if appropriate (82 FR at 23 The beryllium standard for general industry, commenter focused on the risk of health which was not published until 2017, was not listed 2730). in the SIP–IV NPRM and, therefore, the SIP–IV final effects related to beryllium exposure in The SIP–IV rulemaking was still rule did not affect the 2017 final rule’s requirement the aluminum smelting industry and the ongoing when OSHA published the to include employee SSNs in records. methodologies underlying OSHA’s risk

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assessment of occupational exposure to 5–2007 (72 FR 31160), 4–2010 (75 FR 55355), pulmonologist or pulmonary specialist beryllium (Document ID 0026, or 1–2012 (77 FR 3912); and 29 CFR part on staff and on-site facilities to perform Attachment 2, pp. 9–16). Another took 1911. a clinical evaluation for the presence of issue with OSHA’s risk determination All of subpart Z issued under 29 U.S.C. chronic beryllium disease (CBD). The pertaining to dermal contact with 655(b), except those substances that have CBD diagnostic center must have the beryllium and argued that the current exposure limits listed in Tables Z–1, Z–2, capacity to perform pulmonary function standard did not distinguish between and Z–3 of § 1910.1000. The latter were testing (as outlined by the American the chemical forms of beryllium and its issued under 29 U.S.C. 655(a). Thoracic Society criteria), Section 1910.1000, Tables Z–1, Z–2 and Z– varying risk of injury from dermal 3 also issued under 5 U.S.C. 553, but not bronchoalveolar lavage (BAL), and contact (Document ID 0038, pp. 13–15). under 29 CFR part 1911 except for the transbronchial biopsy. The CBD OSHA addressed these concerns about arsenic (organic compounds), benzene, diagnostic center must also have the risk in the 2017 final rule and cotton dust, and chromium (VI) listings. capacity to transfer BAL samples to a determined that the beryllium standard Section 1910.1001 also issued under 40 laboratory for appropriate diagnostic addresses a significant risk (see 82 FR at U.S.C. 3704 and 5 U.S.C. 553. testing within 24 hours. The 2545–52). The changes and Section 1910.1002 also issued under 5 pulmonologist or pulmonary specialist clarifications proposed by the 2018 U.S.C. 553, but not under 29 U.S.C. 655 or must be able to interpret the biopsy NPRM do not affect that determination. 29 CFR part 1911. pathology and the BAL diagnostic test Another commenter took issue with Sections 1910.1018, 1910.1029, and 1910.1200 also issued under 29 U.S.C. 653. results. the revised PEL for beryllium set in the Section 1910.1030 also issued under Public Chronic beryllium disease (CBD) 2017 final rule, suggesting that a lower Law 106–430, 114 Stat. 1901. means a chronic granulomatous lung PEL was needed to protect workers from Section 1910.1201 also issued under 49 disease caused by inhalation of airborne CBD and lung cancer (Document ID U.S.C. 1801–1819 and 5 U.S.C. 553. beryllium by an individual who is 0028, p. 1). Although OSHA determined ■ 2. Amend § 1910.1024 by: beryllium sensitized. in the 2017 final rule that there remains Confirmed positive means the person ■ A. Revising the definitions for a significant risk of material impairment tested has had two abnormal BeLPT test ‘‘Beryllium sensitization,’’ ‘‘Beryllium of health at the 0.2 mg/m3 PEL and the results, an abnormal and a borderline work area,’’ ‘‘CBD diagnostic center,’’ 2.0 ug/m3 STEL, the agency further test result, or three borderline test ‘‘Chronic beryllium disease (CBD),’’ and determined that it could not results, obtained from tests conducted ‘‘Dermal contact with beryllium’’. demonstrate that a lower PEL would be within a three-year period. It also means ■ B. Revise paragraphs (f)(1)(i)(D), technologically feasible (82 FR at 2552). the result of a more reliable and (f)(ii)(B), (h)(2)(i), (h)(3)(iii), (i)(1) Again, OSHA did not propose to revisit accurate test indicating a person has introductory text, (i)(2), (i)(4)(ii), (j)(3), this finding in this rulemaking. been identified as having beryllium (k)(2)(i)(B), (k)(2)(iii) and (iv), (k)(7)(i) sensitization. List of Subjects for 29 CFR Part 1910 introductory text, (k)(7)(ii) through (vi), (l)(1)(i)(B), (l)(1)(ii), (m)(3), (m)(4)(ii)(A), * * * * * Beryllium, General industry, Health, Dermal contact with beryllium means Occupational safety and health. (m)(4)(ii)(E), (n)(1)(ii)(F), (n)(3)(ii)(A), (n)(4)(i), and Appendix A. skin exposure to: Authority The revisions read as follows: (1) Soluble beryllium compounds containing beryllium in concentrations Loren Sweatt, Principal Deputy § 1910.1024 Beryllium. greater than or equal to 0.1 percent by Assistant Secretary of Labor for * * * * * weight; Occupational Safety and Health, U.S. (2) Solutions containing beryllium in Department of Labor, directed the (b) * * * Beryllium sensitization means a concentrations greater than or equal to preparation of this document. The 0.1 percent by weight; or agency issues the sections under the response in the immune system of a specific individual who has been (3) Visible dust, fumes, or mists following authorities: 29 U.S.C. 653, containing beryllium in concentrations 655, 657; Secretary of Labor’s Order 1– exposed to beryllium. There are no associated physical or clinical greater than or equal to 0.1 percent by 2012 (77 FR 3912); 29 CFR part 1911; weight. The handling of beryllium and 5 U.S.C. 553, as applicable. symptoms and no illness or disability with beryllium sensitization alone, but materials in non-particulate solid form Signed at Washington, DC, on May 13, the response that occurs through that are free from visible dust containing 2020. beryllium sensitization can enable the beryllium in concentrations greater than Loren Sweatt, immune system to recognize and react or equal to 0.1 percent by weight is not Principal Deputy Assistant Secretary of Labor to beryllium. While not every beryllium- considered dermal contact under the for Occupational Safety and Health. sensitized person will develop chronic standard. Amendments to Standards beryllium disease (CBD), beryllium * * * * * sensitization is essential for (f) * * * For the reasons set forth in the development of CBD. (1) * * * preamble, chapter XVII of title 29, part Beryllium work area means any work (i) * * * 1910 is amended to read as follows: area where materials that contain at (D) Procedures for minimizing cross- contamination, including the transfer of PART 1910—OCCUPATIONAL SAFETY least 0.1 percent beryllium by weight beryllium between surfaces, equipment, AND HEALTH STANDARDS are processed either: (1) During any of the operations listed clothing, materials, and articles within ■ 1. The authority section for part 1910, in Appendix A of this standard; or beryllium work areas; subpart Z, continues to read as follows: (2) Where employees are, or can * * * * * Authority: 29 U.S.C. 653, 655, 657; reasonably be expected to be, exposed to (ii) * * * Secretary of Labor’s Order No. 12–71 (36 FR airborne beryllium at or above the (B) The employer is notified that an 8754), 8–76 (41 FR 25059), 9–83 (48 FR action level. employee is eligible for medical removal 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), CBD diagnostic center means a in accordance with paragraph (l)(1) of 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), medical diagnostic center that has a this standard, referred for evaluation at

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a CBD diagnostic center, or shows signs materials in accordance with paragraph a CBD diagnostic center that is mutually or symptoms associated with exposure (m)(3) of this standard; agreed upon by the employer and the to beryllium; or (ii) Except for intra-plant transfers, employee. The evaluation at the CBD * * * * * materials designated for disposal that diagnostic center must be scheduled (h) * * * contain at least 0.1 percent beryllium by within 30 days, and must occur within (2) * * * weight or are contaminated with a reasonable time, of: (i) The employer must ensure that beryllium must be cleaned to be as free * * * * * each employee removes all beryllium- as practicable of beryllium or placed in (ii) The employer must ensure that, as contaminated personal protective enclosures that prevent the release of part of the evaluation, the employee is clothing and equipment at the end of beryllium-containing particulate or offered any tests deemed appropriate by the work shift, at the completion of all solutions under normal conditions of the examining physician at the CBD tasks involving beryllium, or when use, storage, or transport, such as bags diagnostic center, such as pulmonary personal protective clothing or or containers; and function testing (as outlined by the equipment becomes visibly (iii) Except for intra-plant transfers, American Thoracic Society criteria), contaminated with beryllium, materials designated for recycling or bronchoalveolar lavage (BAL), and whichever comes first. reuse that contain at least 0.1 percent transbronchial biopsy. If any of the tests beryllium by weight or are * * * * * deemed appropriate by the examining contaminated with beryllium must be (3) * * * physician are not available at the CBD cleaned to be as free as practicable of (iii) The employer must inform in diagnostic center, they may be beryllium or placed in enclosures that writing the persons or the business performed at another location that is prevent the release of beryllium- entities who launder, clean, or repair mutually agreed upon by the employer containing particulate or solutions the personal protective clothing or and the employee. under normal conditions of use, storage, equipment required by this standard of (iii) The employer must ensure that or transport, such as bags or containers. the potentially harmful effects of the employee receives a written medical exposure to beryllium and that the * * * * * report from the CBD diagnostic center personal protective clothing and (k) * * * that contains all the information equipment must be handled in (2) * * * required in paragraph (k)(5)(i), (ii), (iv), accordance with this standard. (i) * * * and (v) of this standard and that the (B) An employee meets the criteria of PLHCP explains the results of the * * * * * paragraph (k)(1)(i)(B) of this standard. examination to the employee within 30 (i) * * * days of the examination. (1) General. For each employee * * * * * (iii) At the termination of employment (iv) The employer must obtain a working in a beryllium work area or for each employee who meets any of the written medical opinion from the CBD who can reasonably be expected to have criteria of paragraph (k)(1)(i) of this diagnostic center within 30 days of the dermal contact with beryllium, the standard at the time the employee’s medical examination. The written employer must: employment terminates, unless an medical opinion must contain only the * * * * * examination has been provided in information in paragraph (k)(6)(i), as (2) Change rooms. In addition to the accordance with this standard during applicable, unless the employee requirements of paragraph (i)(1)(i) of the six months prior to the date of provides written authorization to release this standard, the employer must termination. Each employee who meets additional information. If the employee provide employees who are required to the criteria of paragraph (k)(1)(i)(C) of provides written authorization, the use personal protective clothing or this standard and who has not received written opinion must also contain the equipment under paragraph (h)(1)(ii) of an examination since exposure to information from paragraphs (k)(6)(ii), this standard with a designated change beryllium during the emergency must be (iv), and (v), if applicable. room in accordance with this standard provided an examination at the time the (v) The employer must ensure that and the Sanitation standard (§ 1910.141) employee’s employment terminates. each employee receives a copy of the where employees are required to remove (iv) For an employee who meets the written medical opinion from the CBD their personal clothing. criteria of paragraph (k)(1)(i)(C) of this diagnostic center described in paragraph * * * * * standard: (k)(7) of this standard within 30 days of (4) * * * (A) If that employee has not received any medical examination performed for (ii) No employees enter any eating or a medical examination within the that employee. drinking area with beryllium- previous two years pursuant to (vi) After an employee has received contaminated personal protective paragraph (k)(1)(i) of this standard, then the initial clinical evaluation at a CBD clothing or equipment unless, prior to within 30 days after the employee meets diagnostic center described in entry, it is cleaned, as necessary, to be the criteria of paragraph (k)(1)(i)(C) of paragraphs (k)(7)(i) and (ii) of this as free as practicable of beryllium by this standard; or standard, the employee may choose to methods that do not disperse beryllium (B) If that employee has received a have any subsequent medical into the air or onto an employee’s body; medical examination within the examinations for which the employee is and previous two years pursuant to eligible under paragraph (k) of this * * * * * paragraph (k)(1)(i) of this standard, then standard performed at a CBD diagnostic (j) * * * at least one year but no more than two center mutually agreed upon by the (3) Disposal, recycling, and reuse. (i) years after the employee meets the employer and the employee, and the Except for intra-plant transfers, when criteria of paragraph (k)(1)(i)(C) of this employer must provide such the employer transfers materials that standard. examinations at no cost to the contain at least 0.1 percent beryllium by * * * * * employee. weight or are contaminated with (7) * * * * * * * * beryllium for disposal, recycling, or (i) The employer must provide an (l) * * * reuse, the employer must label the evaluation at no cost to the employee at (1) * * *

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(i) * * * (A) The health hazards associated employee trained, the date the training (B) A written medical report with airborne exposure to and dermal was completed, and the topic of the recommending removal from airborne contact with beryllium, including the training. exposure to beryllium in accordance signs and symptoms of CBD; * * * * * with paragraph (k)(5)(v) or (k)(7)(iii) of * * * * * (p) Appendix. Table A.1 in this this standard; or (E) Measures employees can take to appendix sets forth the operations that, (ii) The employer receives a written protect themselves from airborne where performed under the medical opinion recommending exposure to and dermal contact with circumstances described in the column removal from airborne exposure to beryllium, including personal hygiene heading above the particular operations, beryllium in accordance with paragraph practices; trigger the requirement for a beryllium (k)(6)(v) or (k)(7)(iv) of this standard. * * * * * work area. * * * * * (n) * * * (m) * * * (1) * * * Appendix A to § 1910.1024— (3) Warning labels. Consistent with (ii) * * * Operations for Establishing Beryllium the HCS (§ 1910.1200), the employer (F) The name and job classification of Work Areas must label each immediate container of each employee represented by the clothing, equipment, and materials Paragraph (b) of this standard defines a monitoring, indicating which employees beryllium work area as any work area where contaminated with beryllium, and must, were actually monitored. materials that contain at least 0.1 percent at a minimum, include the following on * * * * * beryllium by weight are processed (1) during the label: (3) * * * any of the operations listed in Appendix A DANGER (ii) * * * of this standard, or (2) where employees are, CONTAINS BERYLLIUM (A) Name and job classification; or can reasonably be expected to be, exposed MAY CAUSE CANCER to airborne beryllium at or above the action * * * * * level. Table A.1 in this appendix sets forth CAUSES DAMAGE TO LUNGS (4) * * * AVOID CREATING DUST the operations that, where performed under (i) At the completion of any training the circumstances described in the column DO NOT GET ON SKIN required by this standard, the employer heading above the particular operations, (4) * * * must prepare a record that indicates the trigger the requirement for a beryllium work (ii) * * * name and job classification of each area.

TABLE A.1—OPERATIONS FOR ESTABLISHING BERYLLIUM WORK AREAS WHERE PROCESSING MATERIALS CONTAINING AT LEAST 0.1 PERCENT BERYLLIUM BY WEIGHT

Beryllium composite operations Beryllium metal alloy operations (generally >10% beryllium by weight) and Beryllium oxide operations (generally <10% beryllium by weight) beryllium metal operations

Abrasive Blasting. Abrasive Blasting. Abrasive Blasting. Abrasive Processing. Abrasive Processing. Abrasive Processing. Abrasive Sawing. Abrasive Sawing. Abrasive Sawing. Annealing. Annealing. Boring. Bright Cleaning. Atomizing. Brazing (>1,100 °C). Brushing. Attritioning. Broaching with green ceramic. Buffing. Blanking. Brushing. Burnishing. Bonding. Buffing. Casting. Boring. Centerless grinding. Centerless Grinding. Breaking. Chemical Cleaning. Chemical Cleaning. Bright Cleaning. Chemical Etching. Chemical Etching. Broaching. CNC Machining. Chemical Milling. Brushing. Cold Isostatic Pressing (CIP). Dross Handling. Buffing. Crushing. Deburring (grinding). Burnishing. Cutting. Electrical Chemical Machining (ECM). Casting. Deburring (grinding). Electrical Discharge Machining (EDM). Centerless Grinding. Deburring (non-grinding). Extrusion. Chemical Cleaning. Destructive Testing. Forging. Chemical Etching Dicing. Grinding. Chemical Milling. Drilling. Heat Treating (in air). CNC Machining Dry/wet Tumbling. High Speed Machining (>10,000 rpm). Cold Isostatic Pressing. Extrusion. Hot Rolling. Cold Pilger. Filing by Hand. Lapping. Crushing. Firing of Green Ceramic. Laser Cutting. Cutting. Firing of Refractory Metallization (>1,100 °C). Laser Machining. Deburring. Grinding. Laser Scribing. Dicing. Honing. Laser Marking. Drawing. Hot Isostatic Pressing (HIP). Melting. Drilling. Lapping. Photo-Etching. Dross Handling. Laser Cutting. Pickling. Electrical Chemical Machining (ECM). Laser Machining. Point and Chamfer. Electrical Discharge Machining (EDM). Laser Scribing. Polishing. Extrusion. Laser Marking. Torch Cutting (i.e., oxy-acetylene). Filing by Hand. Machining. Tumbling. Forging. Milling. Water-jet Cutting. Grinding. Piercing. Welding. Heading. Mixing.

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TABLE A.1—OPERATIONS FOR ESTABLISHING BERYLLIUM WORK AREAS WHERE PROCESSING MATERIALS CONTAINING AT LEAST 0.1 PERCENT BERYLLIUM BY WEIGHT—Continued

Beryllium composite operations Beryllium metal alloy operations (generally >10% beryllium by weight) and Beryllium oxide operations (generally <10% beryllium by weight) beryllium metal operations

Sanding. Heat Treating. Plasma Spray. Slab Milling. Honing. Polishing. Hot Isostatic Pressing (HIP). Powder Handling. Lapping. Powder Pressing. Laser Cutting. Reaming. Laser Machining. Sanding. Laser Scribing. Sectioning. Laser Marking. Shearing. Machining. Sintering of Green Ceramic. Melting. Sintering of Refractory Metallization (>1,100 °C). Milling. Snapping. Mixing. Spray Drying. Photo-Etching. Tape Casting. Pickling. Turning. Piercing. Water Jet Cutting. Pilger. Plasma Spray. Point and Chamfer. Polishing. Powder Handling. Powder Pressing. Pressing. Reaming. Roll Bonding. Rolling. Sanding. Sawing (tooth blade). Shearing. Sizing. Skiving. Slitting. Snapping. Sputtering. Stamping. Spray Drying. Tapping. Tensile Testing. Torch Cutting (i.e., oxy acetylene). Trepanning. Tumbling Turning. Vapor Deposition. Water-Jet Cutting. Welding.

[FR Doc. 2020–10678 Filed 7–13–20; 8:45 am] BILLING CODE P

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