# Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2017-12871 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** June 27, 2017 - **Citation:** 82 FR 29182 ## Text DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Parts 1915 and 1926 [Docket No. OSHA-H005C-2006-0870] RIN 1218-AB76 Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors AGENCY: Occupational Safety and Health Administration (OSHA), Department of Labor. ACTION: Proposed rule; request for comments. SUMMARY: The Occupational Safety and Health Administration (OSHA) proposes to revoke the ancillary provisions for the construction and the shipyard sectors that OSHA adopted on January 9, 2017 but retain the new lower permissible exposure limit (PEL) of 0.2 μg/m 3 and the short term exposure limit (STEL) of 2.0 μg/m 3 for each sector. OSHA will not enforce the January 9, 2017 shipyard and construction standards without further notice while this new rulemaking is underway. This proposal does not affect the general industry beryllium standard published on January 9, 2017. DATES: Written comments. Written comments, including comments on the information collection determination described in Section VII of the preamble (OMB Review under the Paperwork Reduction Act of 1995), must be submitted (postmarked, sent, or received) by August 28, 2017. Informal public hearings. The Agency will schedule an informal public hearing on the proposed rule if requested during the comment period. The location and date of the hearing, procedures for interested parties to notify the Agency of their intention to participate, and procedures for participants to submit their testimony and documentary evidence will be announced in the Federal Register if a hearing is requested. ADDRESSES: Written comments. You may submit comments, identified by Docket No. OSHA-H005C-2006-0870, by any of the following methods: Electronically: You may submit comments and attachments electronically at http://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow the instructions on-line for making electronic submissions. When uploading multiple attachments into Regulations.gov , please number all of your attachments because www.Regulations.gov will not automatically number the attachments. This will be very useful in identifying all attachments in the beryllium rule. For example, Attachment 1—title of your document, Attachment 2—title of your document, Attachment 3—title of your document, etc. Specific instructions for uploading documents are found in the Frequently Asked Questions portion and the commenter check list on Regulations.gov . Fax: If your submissions, including attachments, are not longer than 10 pages, you may fax them to the OSHA Docket Office at (202) 693-1648. Mail, hand delivery, express mail, messenger, or courier service: You may submit your comments to the OSHA Docket Office, Docket No. OSHA-H005C-2006-0870, Room N-3653, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, telephone (202) 693-2350 (OSHA's TTY number is (877) 889-5627). OSHA's Docket Office accepts deliveries (hand deliveries, express mail, and messenger/courier service) from 10 a.m. to 3 p.m. e.t., weekdays. Instructions: All submissions must include the Agency name and the docket number for this rulemaking (Docket No. OSHA-H005C-2006-0870). All comments, including any personal information you provide, are placed in the public docket without change and may be made available online at http://www.regulations.gov. Therefore, OSHA cautions you about submitting personal information such as Social Security numbers and birthdates. Docket: To read or download comments and materials submitted in response to this Federal Register notice, go to Docket No. OSHA-H005C-2006-0870 at http://www.regulations.gov, or to the OSHA Docket Office at the address above. All comments and submissions are listed in the http://www.regulations.gov index; however, some information ( e.g., copyrighted material) is not publicly available to read or download through that Web site. All comments and submissions are available for inspection at the OSHA Docket Office. Electronic copies of this Federal Register document are available at http://www.regulations.gov. Copies also are available from the OSHA Office of Publications, Room N-3101, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1888. This document, as well as news releases and other relevant information, is also available at OSHA's Web site at http://www.osha.gov. FOR FURTHER INFORMATION CONTACT: For general information and press inquiries, contact Frank Meilinger, Director, Office of Communications, Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-1999; email: meilinger.francis2@dol.gov. For technical inquiries, contact: William Perry or Maureen Ruskin, Directorate of Standards and Guidance, Room N-3718, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1955 or fax (202) 693-1678; email: ruskin.maureen@dol.gov. SUPPLEMENTARY INFORMATION: The preamble to this proposed rule on occupational exposure to beryllium and beryllium compounds follows this outline: I. Executive Summary and Regulatory Issues II. Pertinent Legal Authority III. Events Leading to the Proposal IV. Technological Feasibility Summary V. Preliminary Economic Analysis VI. Economic Feasibility and Regulatory Flexibility Certification VII. OMB Review Under the Paperwork Reduction Act of 1995 VIII. Federalism IX. State-Plan States X. Unfunded Mandates Reform Act XI. Protecting Children From Environmental Health and Safety Risks XII. Environmental Impacts XIII. Consultation and Coordination With Indian Tribal Governments XIV. Public Participation XV. Summary and Explanation of the Proposal Authority and Signature Amendments to Standards I. Executive Summary and Regulatory Issues On January 9, 2017, OSHA published its final rule Occupational Exposure to Beryllium and Beryllium Compounds in the Federal Register (82 FR 2470). OSHA concluded that employees exposed to beryllium and beryllium compounds at the preceding permissible exposure limits (PELs) were at significant risk of material impairment of health, specifically chronic beryllium disease and lung cancer. OSHA concluded that the new 8-hour time-weighted average (TWA) PEL of 0.2 μg/m 3 reduced this significant risk to the maximum extent feasible. Based on information submitted to the record, in the final rule OSHA issued three separate standards—for general industry, for shipyards, and for construction. In addition to the revised PEL, the final rule established a new short-term exposure limit (STEL) of 2.0 μg/m 3 over a 15-minute sampling period and an action level of 0.1 μg/m 3 as an 8-hour TWA, along with a number of ancillary provisions intended to provide additional protections to employees, such as requirements for exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication, and recordkeeping similar to those found in other OSHA health standards. On March 21, 2017 OSHA published a delay of the effective date for the final beryllium rule to May 20, 2017 in the Federal Register (82 FR 14439). This action was based on comments received on OSHA's proposed delay of effective date for the final rule in the Federal Register (82 FR 12318). OSHA proposed this delay in accordance with the January 20, 2017 Presidential directive from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review” (82 FR 8346 (1/24/17)) that directed agencies to consider further delaying the effective date for regulations beyond the initial 60-day period. After a further review of the comments received on the proposed extension, as well as a review of the applicability of existing OSHA standards, OSHA is proposing to revoke the ancillary provisions applicable to the construction and shipyard sectors, but to retain the new lower PEL of 0.2 μg/m 3 and the STEL of 2.0 μg/m 3 for those sectors. In the final rule, OSHA reviewed the exposure data for abrasive blasting in construction and shipyards and welding in shipyards and determined that there is a significant risk of chronic beryllium disease (CBD) and lung cancer to workers in construction and shipyards based on the exposure levels observed. Because OSHA determined that there is significant risk of material impairment of health at the new lower PEL of 0.2 μg/m 3 , the Agency continues to believe that it is necessary to protect workers exposed at this level. However, OSHA is now reconsidering the need for ancillary provisions in the construction and shipyards sectors. OSHA has evidence that beryllium exposure in these sectors is limited to the following operations: Abrasive blasting in construction, abrasive blasting in shipyards, and welding in shipyards. OSHA has a number of standards already applicable to these operations, including ventilation (29 CFR 1926.57) and mechanical paint removers (29 CFR 1915.34). In addition, this proposal provides stakeholders with an additional opportunity to offer comments on the protections needed for workers exposed to beryllium in the construction and shipyard sectors, including the need for the ancillary provisions in the January 9, 2017 construction and shipyard beryllium standards. This will give OSHA additional information as it further considers the January 9, 2017 final rule's provisions for these sectors. While the new beryllium rule went into effect on May 20, 2017, compliance obligations do not begin until March 12, 2018. Moreover, OSHA will not enforce the January 9, 2017 shipyard and construction standards without further notice while this new rulemaking is underway. OSHA requests feedback on issues associated with the proposed regulatory action and requests information that would help the Agency craft the final rule. The Agency welcomes comments concerning all aspects of this proposal. However, OSHA is especially interested in responses, supported by evidence and reasons, to the following questions: 1. OSHA has proposed revoking the ancillary provisions for the construction and shipyard sectors while retaining the new (lower) PEL of 0.2 μg/m 3 and STEL of 2.0 μg/m 3 for those sectors. Does this provide adequate protection to the workers in construction and shipyard sectors considering the other standards that apply? Should OSHA keep any or all of the ancillary provisions of the January 9, 2017 final rule for construction and shipyards? If so, which ones? 2. In particular, what is the incremental benefit if OSHA keeps the medical surveillance requirements for construction and shipyards described in the January 9, 2017 final rule, but revokes the other ancillary provisions? Alternatively, should OSHA keep some of the medical surveillance requirements for construction and shipyards but not others? Which medical surveillance requirements are most appropriate for beryllium-exposed workers in these sectors, if any? For more information, see Regulatory Alternative #21a, PELs plus medical surveillance (lowering the PEL and requiring medical surveillance when exposed above the PEL for operations outside the scope of the proposed rule), in the 2015 NPRM (80 FR 47565 (8/7/15)). OSHA's estimates of the medical surveillance costs changed between the NPRM and final rule because of a change of the medical surveillance trigger from the action level to the PEL; updated exposure data and hire rates; and revised unit costs in response to comments and conversion from 2010 to 2015 dollars. 3. In addition to the proposal in this notice, OSHA is considering extending the compliance dates in the January 9, 2017 final rule by a year for the construction and shipyard standards. This would give affected employers additional time to come into compliance with its requirements, which could be warranted by the uncertainty created by this proposal. In the January 9, 2017 final rule, OSHA analyzed the technological and economic feasibility of complying with the rule for the construction and shipyard sectors and found that the rule was technologically and economically feasible for these sectors. Since the changes we propose today will retain the new PELs and eliminate the ancillary provisions, these changes will not affect the feasibility findings. The technological and economic feasibility of the January 9, 2017 final rule is established in the FEA, which is summarized in Sections IV and VI of this preamble. Table I-1, which is based on the material presented in the 2016 FEA with updated assumptions, provides OSHA's best estimate of the cost savings to shipyard and construction establishments in all affected application groups as a result of this proposal to remove all of the ancillary provision requirements in those sectors. OSHA is proposing to remove the following ancillary provisions: Exposure monitoring, regulated areas (and competent person in construction), a written exposure control plan, protective equipment and work clothing, hygiene areas and practices, housekeeping, medical surveillance, medical removal, and worker training. Note that, because OSHA is not proposing to change the January 9, 2017 PELs and STELs in this proposal, OSHA has not estimated any cost savings related to engineering controls or respirators. Note also that, although not a requirement in the January 9, 2017 beryllium standards, OSHA estimated costs there for rule familiarization. Since some employers may have already incurred familiarization costs in reviewing those published standards, OSHA views them as sunk costs and has not included them in the estimated cost savings. Furthermore, OSHA has added some modest costs in this proposal to reflect the fact that construction and shipyard employers would be expected to devote some time becoming familiar with the revocation of the January 9, 2017 ancillary provisions. Table I-1—Total Annualized Cost Savings, by Sector and Six-Digit NAICS Industry, for Entities Affected by the Beryllium Proposal; Results Shown by Size Category [3 percent discount rate, 2016 dollars] Application group/NAICS Industry All establishments Small entities (SBA-defined) Very small entities (<20 Employees) Abrasive Blasting—Construction 238320 Painting and Wall Covering Contractors $4,087,412 $3,445,984 $2,420,659 238990 All Other Specialty Trade Contractors 3,787,418 2,916,925 1,998,054 Abrasive Blasting—Shipyards 336611a Ship Building and Repairing 3,081,907 990,140 524,187 Welding in Shipyards 336611b Ship Building and Repairing 34,217 11,283 6,421 Total Construction Subtotal 7,874,830 6,362,909 4,418,712 Maritime Subtotal 3,116,125 1,001,423 530,608 Total, All Industries 10,990,954 7,364,331 4,949,321 Notes: Figures in rows may not add to totals due to rounding. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. The remainder of this preamble presents the legal requirements of the Occupational Safety and Health Act (OSH Act) (Section II, Pertinent Legal Authority); a summary of the events leading to the proposal (Section III); the technological feasibility summary (Section IV); the preliminary economic analysis for the proposal (Section V); the preliminary economic feasibility findings and the regulatory flexibility certification for the proposal (Section VI); a summary of the analysis of this proposal under the Paperwork Reduction Act of 1995 (Section VII); analyses under various executive orders and a description of the implications for State-Plan States (Sections VIII-XIII); instructions for public participation (Section XIV); and the summary and explanation of OSHA's proposal to maintain the TWA PEL of 0.2 μg/m 3 and STEL of 2 μg/m 3 for operations in construction and shipyards while revoking the January 9, 2017 ancillary provisions for these sectors (Section XV). II. Pertinent Legal Authority The purpose of the Occupational Safety and Health Act of 1970 (“the OSH Act” or “the Act”), 29 U.S.C. 651 et al., is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate occupational safety and health standards pursuant to notice and comment. See 29 U.S.C. 655(b). An occupational safety or health standard is a standard “which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. 652(8). The Act provides that in promulgating health standards dealing with toxic materials or harmful physical agents, such as the January 9, 2017 final rule regulating occupational exposure to beryllium, [t]he Secretary . . . shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. 29 U.S.C. 655(b)(5). The Supreme Court has held that before the Secretary can promulgate any permanent health or safety standard, he must make a threshold finding that significant risk is present and that such risk can be eliminated or lessened by a change in practices. See Industrial Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 641-42 (1980) (plurality opinion) (“ Benzene” ). Thus, section 6(b)(5) of the Act requires health standards to reduce significant risk to the extent feasible. See id. The Court further observed that what constitutes “significant risk” is “not a mathematical straitjacket” and must be “based largely on policy considerations.” Id. at 655, 655 n.62. OSHA retains great discretion . . . under Section 3(8) [of the Act], especially in an area where scientific certainty is impossible. In the first instance, it is the agency itself that determines the existence of a “significant” risk . . . In making the difficult judgment as to what level of harm is unacceptable, the agency may rely on its own sound “considerations of policy” as well as hard factual data . . . United Steelworkers v. Marshall, 647 F.2d 1189, 1248 (D.C. Cir. 1980) (“ Lead I” ) (internal citations omitted). When evaluating such considerations, OSHA exercises its discretion and its “delegated power to make within certain limits decisions that Congress normally makes itself.” Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 475 (D.C. Cir. 1974). Accordingly, OSHA's discretionary authority under the Act is broad. See Lead I, 647 F.2d at 1230. Indeed, “[a] number of terms of the statute give OSHA almost unlimited discretion to devise means to achieve the congressionally mandated goal” of ensuring worker safety and health. Id. (citation omitted). Once OSHA makes its significant risk finding, the standard must be “reasonably necessary or appropriate” to reduce or eliminate that risk within the meaning of section 3(8) of the Act (29 U.S.C. 652(8)) and Benzene (448 U.S. at 642). See Bldg. and Constr. Trades Dep't v. Brock, 838 F.2d 1258, 1269 (D.C. Cir. 1988) (“ Asbestos II” ). In choosing among regulatory alternatives, however, “[t]he determination that [one standard] is appropriate, as opposed to a marginally [more or less protective] standard, is a technical decision entrusted to the expertise of the agency.” Nat'l Mining Ass'n v. Mine Safety and Health Admin., 116 F.3d 520, 528 (D.C. Cir. 1997) (analyzing a Mine Safety and Health Administration standard under the Benzene significant risk standard). Where there is significant risk below the PEL, OSHA should use its regulatory authority to impose additional requirements on employers when those requirements will result in a greater than de minimis incremental benefit to workers' health. See Asbestos II, 838 F.2d at 1274. The Act also authorizes the Secretary to “modify” or “revoke” any occupational safety or health standard. 29 U.S.C. 655(b). The Supreme Court has acknowledged that regulatory agencies do not establish rules of conduct to last forever, and agencies may revise their rules if supported by a reasoned analysis for the change. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). “While the removal of a regulation may not entail the monetary expenditures and other costs of enacting a new standard, and accordingly, it may be easier for an agency to justify a deregulatory action, the direction in which an agency chooses to move does not alter the standard of judicial review established by law.” Id. at 43. OSHA is required to set standards “on the basis of the best available evidence,” 29 U.S.C. 655(b)(5), and its determinations are “conclusive” if supported by “substantial evidence in the record considered as a whole,” 29 U.S.C. 655(f). As noted above, the Supreme Court, in Benzene, explained that OSHA must look to “a body of reputable scientific thought” in making its determinations, while noting that a reviewing court must “give OSHA some leeway where its findings must be made on the frontiers of scientific knowledge.” 448 U.S. at 656. When there is disputed scientific evidence in the record, OSHA must review the evidence on both sides and “reasonably resolve” the dispute. Pub. Citizen Health Research Grp. v. Tyson, 796 F.2d 1479, 1500 (D.C. Cir. 1986). As the D.C. Circuit has noted, where “OSHA has the expertise we lack and it has exercised that expertise by carefully reviewing the scientific data,” a dispute within the scientific community is not occasion for the reviewing court to take sides about which view is correct. Id. OSHA standards must be both technologically and economically feasible. See Lead I, 647 F.2d at 1264. The Supreme Court has defined feasibility as “capable of being done.” Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509-10 (1981) (“ Cotton Dust”). The courts have further clarified that a standard is technologically feasible if OSHA proves a reasonable possibility, “within the limits of the best available evidence, . . . that the typical firm will be able to develop and install engineering and work practice controls that can meet the PEL in most of its operations.” Lead I, 647 F.2d at 1272. With respect to economic feasibility, the courts have held that “a standard is feasible if it does not threaten massive dislocation to or imperil the existence of the industry.” Id. at 1265 (internal quotation marks and citations omitted). A court must examine the cost of compliance with an OSHA standard in relation to the financial health and profitability of the industry and the likely effect of such costs on unit consumer prices. . . . [T]he practical question is whether the standard threatens the competitive stability of an industry, . . . or whether any intra-industry or inter-industry discrimination in the standard might wreck such stability or lead to undue concentration. Id. (internal citations omitted). The courts have further observed that granting companies reasonable time to comply with new PELs may enhance economic feasibility. See id. Because section 6(b)(5) of the Act explicitly imposes the “to the extent feasible” limitation on the setting of health standards, OSHA is not permitted to use cost-benefit analysis to make its standards-setting decisions. 29 U.S.C. 655(b)(5). An OSHA standard must be cost effective, which means that the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection, but OSHA cannot choose an alternative that provides a lower level of protection because it is less costly. See Int'l Union, UAW v. OSHA, 37 F.3d 655, 668 (D.C. Cir. 1994); see also Cotton Dust, 452 U.S. at 514 n.32. Congress itself defined the basic relationship between costs and benefits, by placing the “benefit” of worker health above all other considerations save those making attainment of this “benefit” unachievable. Any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be inconsistent with the command set forth in § 6(b)(5). Cotton Dust, 452 U.S. at 509. Thus, while OSHA estimates the costs and benefits of its proposed and final rules, in part to ensure compliance with requirements such as those in Executive Orders 12866 and 13771, these calculations do not form the basis for the Agency's regulatory decisions. III. Events Leading to the Proposal The first occupational exposure limit for beryllium was set in 1949 by the Atomic Energy Commission (AEC), which required that beryllium exposure in the workplaces under its jurisdiction be limited to 2 μg/m 3 as an 8-hour time-weighted average (TWA), and 25 μg/m 3 as a peak exposure never to be exceeded (Document ID 1323). These exposure limits were adopted by all AEC installations handling beryllium, and were binding on all AEC contractors involved in the handling of beryllium. In 1956, the American Industrial Hygiene Association (AIHA) published a Hygienic Guide which supported the AEC exposure limits. In 1959, the American Conference of Governmental Industrial Hygienists (ACGIH®) also adopted a Threshold Limit Value (TLV®) of 2 μg/m 3 as an 8-hour TWA (Document ID 0498). In 1970, the American National Standards Institute (ANSI) issued a national consensus standard for beryllium and beryllium compounds (ANSI Z37.29-1970). The standard set a permissible exposure limit (PEL) for beryllium and beryllium compounds at 2 μg/m 3 as an 8-hour TWA; 5 μg/m 3 as an acceptable ceiling concentration; and 25 μg/m 3 as an acceptable maximum peak above the acceptable ceiling concentration for a maximum duration of 30 minutes in an 8-hour shift (Document ID 1303). In 1971, OSHA adopted, under Section 6(a) of the Occupational Safety and Health Act of 1970, and made applicable to general industry, the ANSI standard (Document ID 1303). Section 6(a) provided that in the first two years after the effective date of the Act, OSHA was to promulgate “start-up” standards, on an expedited basis and without public hearing or comment, based on national consensus or established Federal standards that improved employee safety or health. Pursuant to that authority, in 1971, OSHA promulgated approximately 425 PELs for air contaminants, including beryllium, derived principally from Federal standards applicable to government contractors under the Walsh-Healey Public Contracts Act, 41 U.S.C. 35, and the Contract Work Hours and Safety Standards Act (commonly known as the Construction Safety Act), 40 U.S.C. 333. The Walsh-Healey Act and Construction Safety Act standards, in turn, had been adopted primarily from ACGIH®'s TLV®s as well as several from United States of America Standards Institute (USASI) (later the American National Standards Institute (ANSI)). The National Institute for Occupational Safety and Health (NIOSH) issued a document entitled Criteria for a Recommended Standard: Occupational Exposure to Beryllium (Criteria Document) in June 1972 with Recommended Exposure Limits (RELs) of 2 μg/m 3 as an 8-hour TWA and 25 μg/m 3 as an acceptable maximum peak above the acceptable ceiling concentration for a maximum duration of 30 minutes in an 8-hour shift (Document ID 1324). OSHA reviewed the findings and recommendations contained in the Criteria Document along with the AEC control requirements for beryllium exposure. OSHA also considered existing data from animal and epidemiological studies, and studies of industrial processes of beryllium extraction, refinement, fabrication, and machining. In 1975, OSHA asked NIOSH to update the evaluation of the existing data pertaining to the carcinogenic potential of beryllium. In response to OSHA's request, the Director of NIOSH stated that, based on animal data and through all possible routes of exposure including inhalation, “beryllium in all likelihood represents a carcinogenic risk to man.” In October 1975, OSHA proposed a new beryllium standard for all industries based on information from studies finding that beryllium caused cancer in animals (40 FR 48814 (10/17/75)). Adoption of this proposal would have lowered the 8-hour TWA exposure limit from 2 μg/m 3 to 1 μg/m 3 . In addition, the proposal included ancillary provisions for such topics as exposure monitoring, hygiene facilities, medical surveillance, and training related to the health hazards from beryllium exposure. The rulemaking was never completed. In 1977, NIOSH recommended an exposure limit of 0.5 μg/m 3 and identified beryllium as a potential occupational carcinogen. In December 1998, ACGIH published a Notice of Intended Change for its beryllium exposure limit. The notice proposed a lower TLV of 0.2 μg/m 3 over an 8-hour TWA based on evidence of CBD and sensitization in exposed workers. Then in 2009, ACGIH adopted a revised TLV for beryllium that lowered the 8-hour TWA to 0.05 μg/m 3 (inhalable) (see Document ID 1755, Tr. 136). In 1999, the Department of Energy (DOE) issued a Chronic Beryllium Disease Prevention Program (CBDPP) Final Rule for employees exposed to beryllium in its facilities (Document ID 1323). The DOE rule set an action level of 0.2 μg/m 3 , and adopted OSHA's PEL of 2 μg/m 3 or any more stringent PEL OSHA might adopt in the future (10 CFR 850.22; 64 FR 68873 and 68906, Dec. 8, 1999). Also in 1999, OSHA was petitioned by the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE) (Document ID 0069) and by Dr. Lee Newman and Ms. Margaret Mroz, from the National Jewish Health (NJH) (Document ID 0069), to promulgate an Emergency Temporary Standard (ETS) for beryllium in the workplace. In 2001, OSHA was petitioned for an ETS by Public Citizen Health Research Group and again by PACE (Document ID 0069). In order to promulgate an ETS, the Secretary of Labor must prove (1) that employees are exposed to grave danger from exposure to a hazard, and (2) that such an emergency standard is necessary to protect employees from such danger (29 U.S.C. 655(c) [section 6(c)]). The burden of proof is on the Department and because of the difficulty of meeting this burden, the Department usually proceeds when appropriate with ordinary notice and comment [section 6(b)] rulemaking rather than a section 6(c) ETS. Thus, instead of granting the ETS requests, OSHA instructed staff to further collect and analyze research regarding the harmful effects of beryllium in preparation for possible section 6(b) rulemaking. On November 26, 2002, OSHA published a Request for Information (RFI) for “Occupational Exposure to Beryllium” (Document ID 1242). The RFI contained questions on employee exposure, health effects, risk assessment, exposure assessment and monitoring methods, control measures and technological feasibility, training, medical surveillance, and impact on small business entities. In the RFI, OSHA expressed concerns about health effects such as chronic beryllium disease (CBD), lung cancer, and beryllium sensitization. OSHA pointed to studies indicating that even short-term exposures below OSHA's PEL of 2 μg/m 3 could lead to CBD. The RFI also cited studies describing the relationship between beryllium sensitization and CBD (67 FR at 70708). In addition, OSHA stated that beryllium had been identified as a carcinogen by organizations such as NIOSH, the International Agency for Research on Cancer (IARC), and the Environmental Protection Agency (EPA); and cancer had been evidenced in animal studies (67 FR at 70709). On November 15, 2007, OSHA convened a Small Business Advocacy Review Panel to review a draft proposed standard for occupational exposure to beryllium. OSHA convened this panel under Section 609(b) of the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 601 et seq. ). The Panel included representatives from OSHA, the Solicitor's Office of the Department of Labor, the Office of Advocacy within the Small Business Administration, and the Office of Information and Regulatory Affairs of the Office of Management and Budget. Small Entity Representatives (SERs) made oral and written comments on the draft rule and submitted them to the panel. The SBREFA Panel issued a report on January 15, 2008 which included the SERs' comments. SERs expressed concerns about the impact of the ancillary requirements such as exposure monitoring and medical surveillance. Their comments addressed potential costs associated with compliance with the draft standard, and possible impacts of the standard on market conditions, among other issues. In addition, many SERs sought clarification of some of the ancillary requirements such as the meaning of “routine” contact or “contaminated surfaces.” OSHA then developed a draft preliminary beryllium health effects evaluation (Document ID 1271) and a draft preliminary beryllium risk assessment (Document ID 1272), and in 2010, OSHA hired a contractor to oversee an independent scientific peer review of these documents. The contractor identified experts familiar with beryllium health effects research and ensured that these experts had no conflict of interest or apparent bias in performing the review. The contractor selected five experts with expertise in such areas as pulmonary and occupational medicine, CBD, beryllium sensitization, the Beryllium Lymphocyte Proliferation Test (BeLPT), beryllium toxicity and carcinogenicity, and medical surveillance. Other areas of expertise included animal modeling, occupational epidemiology, biostatistics, risk and exposure assessment, exposure-response modeling, beryllium exposure assessment, industrial hygiene, and occupational/environmental health engineering. Regarding the preliminary health effects evaluation, the peer reviewers concluded that the health effect studies were described accurately and in sufficient detail, and OSHA's conclusions based on the studies were reasonable (Document ID 1210). The reviewers agreed that the OSHA document covered the significant health endpoints related to occupational beryllium exposure. Peer reviewers considered the preliminary conclusions regarding beryllium sensitization and CBD to be reasonable and well presented in the draft health evaluation section. All reviewers agreed that the scientific evidence supports sensitization as a necessary condition in the development of CBD. In response to reviewers' comments, OSHA made revisions to more clearly describe certain sections of the health effects evaluation. In addition, OSHA expanded its discussion regarding the BeLPT. Regarding the preliminary risk assessment, the peer reviewers were highly supportive of OSHA's approach and major conclusions (Document ID 1210). The peer reviewers stated that the key studies were appropriate and their selection clearly explained in the document. They regarded the preliminary analysis of these studies to be reasonable and scientifically sound. The reviewers supported OSHA's conclusion that substantial risk of sensitization and CBD were observed in facilities where the highest exposure-generating processes had median full-shift exposures around 0.2 μg/m 3 or higher, and that the greatest reduction in risk was achieved when exposures for all processes were lowered to 0.1 μg/m 3 or below. In February 2012, OSHA received for consideration a draft recommended standard for beryllium (Materion and USW, 2012, Document ID 0754). This draft standard was the product of a joint effort between two stakeholders: Materion Corporation, a leading producer of beryllium and beryllium products in the United States, and the United Steelworkers, an international labor union representing workers who manufacture beryllium alloys and beryllium-containing products in a number of industries. They sought to craft an OSHA-like model beryllium standard that would have support from both labor and industry. OSHA considered this draft standard along with other information submitted during the development of the Notice of Proposed Rulemaking (NPRM) for beryllium published in 2015. As described in greater detail in the Introduction to the Summary and Explanation of the final rule, there was substantial agreement between the submitted joint draft standard and the OSHA proposed standard. On August 7, 2015, OSHA published its NPRM in the Federal Register (80 FR 47565 (8/7/15)). In the NPRM, OSHA made a preliminary determination that employees exposed to beryllium and beryllium compounds at the preceding PEL face a significant risk to their health and that promulgating the proposed standard would substantially reduce that risk. The NPRM (Section XVIII) also responded to the SBREFA Panel recommendations, which OSHA carefully considered, and clarified the requirements about which SERs expressed confusion. OSHA also discussed the regulatory alternatives recommended by the SBREFA Panel in NPRM, Section XVIII, and in the PEA (Document ID 0426). The NPRM invited interested stakeholders to submit comments on a variety of issues and indicated that OSHA would schedule a public hearing upon request. Commenters submitted information and suggestions on a variety of topics. In addition, in response to a request from the Non-Ferrous Founders' Society, OSHA scheduled an informal public hearing on the proposed rule. OSHA invited interested persons to participate by providing oral testimony and documentary evidence at the hearing. OSHA also welcomed presentation of data and documentary evidence that would provide the Agency with evidence to use in determining whether to develop a final rule. The public hearing was held in Washington, DC on March 21 and 22, 2016. Administrative Law Judge William Colwell presided over the hearing. OSHA heard testimony from several organizations, such as public health groups, the Non-Ferrous Founders' Society, other industry representatives, and labor unions. Following the hearing, participants who had filed notices of intent to appear were allowed 30 days—until April 21, 2016—to submit additional evidence and data, and an additional 15 days—until May 6, 2016—to submit final briefs, arguments, and summations (Document ID 1756, Tr. 326). In all, the OSHA rulemaking record contained over 1,900 documents, including all the studies OSHA relied on in its preliminary health effects and risk assessment analyses, the hearing transcript and submitted testimonies, the joint Materion-USW draft proposed standard, and the pre- and post-hearing comments and briefs. In 2016, in an action parallel to OSHA's rulemaking, DOE proposed to update its action level to 0.05 μg/m 3 (81 FR 36704-36759, June 7, 2016). The DOE action level triggers workplace precautions and control measures such as periodic monitoring, exposure reduction or minimization, regulated areas, hygiene facilities and practices, respiratory protection, protective clothing and equipment, and warning signs (Document ID 1323; 10 CFR 850.23(b)). Unlike OSHA's PEL, however, DOE's selection of an action level is not required to meet statutory requirements of technological and economic feasibility. On January 9, 2017, OSHA published its final rule Occupational Exposure to Beryllium and Beryllium Compounds in the Federal Register (82:2470-2757 (1/9/17)). Based on the entire rulemaking record, OSHA concluded that employees exposed to beryllium and beryllium compounds at the preceding PELs were at significant risk of material impairment of health, specifically chronic beryllium disease and lung cancer. OSHA concluded that the new PEL of 0.2 μg/m 3 reduced this significant risk to the maximum extent that is technologically and economically feasible. The final rule also included ancillary provisions to protect employees, such as requirements for exposure assessment, methods for controlling exposure, respiratory protection, personal protective clothing and equipment, housekeeping, medical surveillance, hazard communication, and recordkeeping. In a change from the NPRM, OSHA included the construction and shipyard industries in the beryllium final rule. OSHA's decision was based on supportive testimony and comments from stakeholders along with exposure data in the record indicating the potential for exposures above the action level for abrasive blasting using coal and copper slags (Document ID 1756; 1782; 1790). OSHA issued three separate standards for general industry, construction, and shipyards in an attempt to tailor requirements to each sector. The final rule also included other changes from the NPRM that were based on OSHA's analysis of the record. These included changes in the scope of the standards, exposure assessment requirements, beryllium work areas, personal protective clothing and equipment, medical surveillance requirements, and compliance dates. On February 1, 2017, OSHA published a delay of the effective date for the final rule in the Federal Register (82:8901 (2/1/17)). OSHA implemented this action based on the Presidential directive as expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review” (82 FR 8346 (January 24, 2017)). That memorandum directed the heads of Executive Departments and Agencies to temporarily postpone for 60 days from the date of the memorandum the effective dates of all regulations that had been published in the Federal Register but had not yet taken effect. OSHA therefore delayed the effective date for the final rule Occupational Exposure to Beryllium and Beryllium Compounds to March 21, 2017. On March 2, 2017, OSHA published a proposed delay of effective date for the final rule in the Federal Register (82 FR 12318 (3/2/17)). OSHA proposed this further delay in accordance with the January 20, 2017 Presidential directive from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review” (82 FR 8346 (January 24, 2017)) that directed agencies to consider further delaying the effective date for regulations beyond the initial 60-day period. OSHA preliminarily determined that it would be appropriate to further delay the effective date of the final rule to give the new administration time to review questions of fact, law, and policy raised therein. OSHA therefore proposed extending the effective date to May 20, 2017 and sought comment on its proposal to extend the effective date by an additional 60 days. OSHA received twenty-five unique comments on this proposal with many of the commenters supporting the delay considering the ongoing transition to a new administration. Some of these commenters also requested that OSHA further review the impact of the rule on entities that would be affected by changes from the proposed beryllium rule. Several commenters opposed the proposed delay of the effective date. On March 21, 2017, after considering all the comments received, OSHA finalized the delay of the effective date for the final beryllium rule in the Federal Register (82 FR 14439 (2/21/17)). This action extended the effective date to May 20, 2017 and provided OSHA with additional time to conduct a further review of the final rule, including consideration of concerns raised by interested parties. After careful consideration, and for reasons explained fully in the Summary and Explanation of this preamble, OSHA is proposing to revoke the ancillary provisions for both construction and shipyards adopted in the January 9, 2017 final rule and retain the new lower PEL of 0.2 µg/m 3 and STEL of 2.0 μg/m 3 for those sectors (see Section XV, Summary and Explanation of the Proposal). IV. Technological Feasibility Summary Exposure Profile This section summarizes the basis for OSHA's technological feasibility findings made in the 2016 Final Economic Analysis (FEA) for the January 9, 2017 beryllium final rule ( see Docket ID 2042, FEA Chapter IV—Technological Feasibility). It is presented here for informational purposes only. The information in this section is drawn entirely from the 2016 FEA and contains no new information or assessment. Abrasive Blasting in Construction and Shipyards The primary abrasive blasting job categories include the abrasive blasting operator (blaster) and pot tender (blaster's helper or assistant) during open blasting projects. Support personnel such as pot tenders or abrasive media cleanup workers might also be employed to clean up ( e.g., by vacuuming or sweeping) and recycle spent abrasive and to set up, dismantle, and move containment systems and supplies (NIOSH, 1976, Document ID 0779; NIOSH, 1993, 0777; NIOSH, 1995, 0773; NIOSH, 2007, 0770; Flynn and Susi, 2004, 1608; Meeker et al., 2005, 0699). Section 15 of Chapter IV of the 2016 Final Economic Analysis (FEA) for the January 9, 2017 final beryllium rule included a detailed discussion of exposure data and analysis for the development of the exposure profile for workers in abrasive blasting operations. Because OSHA addressed general industry abrasive blasting operations in other general industry sections where appropriate, such as in the nonferrous foundries industry, the exposure profile in Section 15 addressed only exposure data from construction and shipyard tasks. The exposure profile for abrasive blasters, pot tenders/helpers, and abrasive media cleanup workers was based on two National Institute for Occupational Safety and Health (NIOSH) evaluations of beryllium exposure from abrasive blasting with coal slag, unpublished sampling results for abrasive blasting operations from four U.S. shipyards, and data submitted by the U.S. Navy (NIOSH, 1983, Document ID 0696; NIOSH, 2007, 0770; OSHA, 2005, 1166; U.S. Navy, 2003, 0145). Table IV.1—Exposure Profile for Abrasive Blasting Workers Number of full-shift PBZ sample results in range (μg/m 3 ) <0.1 ≥0.1 to ≤0.2 >0.2 to ≤0.5 >0.5 to ≤1.0 >1.0 to ≤2.0 >2.0 Total number of samples Abrasive Blasters 45 30.4% 38 25.7% 22 14.8% 7 4.7% 8 5.4% 28 18.9% 148 100% Pot Tender 9 56.2% 7 43.8% 0 0% 0 0% 0 0% 0 0% 16 100% Cleanup 20 66.6% 8 26.7% 0 0% 0 0% 1 3.3% 1 3.3% 30 100% Totals 74 38.1% 53 27.3% 22 11.2% 7 3.6% 9 4.6% 29 15% 194 100% Sources: Document ID 0145; OSHA 2005, Document ID 1166; NIOSH 1983, 0696; NIOSH 2007. 0770. Notes: Sample results are expressed as eight-hour time-weighted averages and include sampling durations of 240 minutes or longer. Non-detected shipyard results are incorporated into the exposure profile by assigning the detection limit value to each result reported as less than the sample limit of detection. Excludes four results where garnet was used as the abrasive due to high nondetectable reporting limits. Welding in Shipyards Similar to the profile for abrasive blasting activities, OSHA used exposure data from the 2016 FEA to develop the exposure profile for welding in shipyards. OSHA used the exposure data from Chapter IV-10 Appendices 2 and 3 and combined the aluminum base metal and non-aluminum or unknown base material data. OSHA removed shorter duration samples that appeared in Appendix 3 of FEA Chapter IV-10. Seven maritime welding samples from Appendix 3, Table IV-10.6 with sampling durations of 240 minutes or greater were used in this profile to represent the 8-hour TWA samples. IV.2—Welding in Shipyards—Beryllium 8-Hour TWA Exposure Profile Number of beryllium samples in range (μg/m 3 ) and percent of total in range Range <0.1 >0.1 to ≤0.2 >0.2 to ≤0.5 >0.5 to ≤1.0 >1.0 to ≤2.0 >2.0 Total Aluminum Base Material Percent 4 57% 0 0% 0 0% 2 28.6% 1 14.3% 0 0% 7 100% Base Material Not Aluminum or Unknown Percent 123 96.9% 2 21.6% 0 0% 2 1.6% 0 0% 0 0% 127 100% Totals 127 94.8% 2 1.5% 0 0% 4 3.0% 1 0.7% 0 0% 134 100% Sources: OSHA Shipyards, 2005, Document ID 1166; U.S. Navy, 2003, Document ID 0145. Beryllium samples below the limit of detection are recast as 0 μg/m 3 to reflect likely absence of beryllium in the work materials. Data includes samples collected over periods of 240 minutes or longer, to avoid samples with elevated limits of detection that cannot be meaningfully interpreted. Technological Feasibility Determination Overall, based on the information discussed in Chapter IV of Final Economic Analysis of the January 9, 2017 final beryllium rule, OSHA determined that the majority of the exposures in construction and shipyards are either already at or below the new final PEL, or can be adequately controlled to levels below the final PEL through the implementation of additional engineering and work practice controls for most operations most of the time. The one exception is that OSHA determined that workers who perform open-air abrasive blasting using mineral grit ( i.e., coal slag) will routinely be exposed to levels above the final PEL even after the installation of feasible engineering and work practice controls, and therefore, these workers will also be required to wear respiratory protection. Therefore, OSHA concluded in the January 9, 2017 final rule that the final PEL of 0.2 μg/m 3 is technologically feasible in abrasive blasting in construction and shipyards and in welding in shipyards. V. Preliminary Economic Analysis A. Introduction This Preliminary Economic Analysis (PEA) addresses issues related to the profile of affected application groups, establishments, and employees, the cost savings, and the health effects of OSHA's proposal to revoke both the construction and shipyard ancillary provisions and make no changes to the January 9, 2017 final rule's PEL and STEL for the shipyard and construction industries. The proposed actions are not “economically significant regulatory actions” under Executive Order 12866 or UMRA, nor are they “major rules” under the Congressional Review Act (5 U.S.C. 801 et seq. ). Neither the benefits nor the costs of these proposed actions exceed $100 million. In addition, they do not meet any of the other criteria specified by UMRA for a significant regulatory action or the Congressional Review Act for a major rule. However, these actions have been determined to be “significant” under Executive Order 12866. Under this proposal, employers in shipyards and construction would no longer be required to implement the ancillary provisions adopted by the January 9, 2017 final rule. The nine ancillary provisions being removed by this proposal are: (1) Assess employees' exposure to airborne beryllium, (2) establish regulated areas or a competent person, (3) develop a written exposure control plan, (4) provide personal protective work clothing and equipment, (5) establish hygiene areas and practices, (6) implement housekeeping measures, (7) provide medical surveillance, (8) provide medical removal for employees who have developed CBD or been confirmed positive for beryllium sensitization, and (9) provide appropriate training. OSHA assumes that these employers have already incurred the costs of familiarizing themselves with the ancillary provisions in the final rule. In addition, the proposal would retain the new PEL and STEL through revisions of the Z Table in 29 CFR 1915.1000 in shipyards and Appendix A to 29 CFR 1926.55 in construction. The changes to these tables are a technical correction, given the proposed changes, and will not affect the PEL and STEL requirements of the final rule. While OSHA still welcomes comment on the applicability of existing standards to the operations covered by this proposal, this PEA provides OSHA's preliminary assessment of how those standards impact the costs, benefits, and baseline compliance associated with the beryllium rule. This Introduction to the PEA is followed by: • Section B: Profile of Affected Application Groups, Establishments, and Employees • Section C: Cost Savings • Section D: Health Benefits B. Profile of Affected Application Groups, Establishments, and Employees Introduction In this section, OSHA presents the preliminary profile of industries affected by this proposal to revoke the ancillary provisions for the shipyard and construction sectors (82 FR 2470-2757, 1/9/2017) while retaining the revised PEL and STEL for those sectors. The profile data in this section are drawn from the industry profiles in Chapter III and exposure profiles and data in Chapter IV of the Final Economic Analysis supporting the new beryllium standards (“2016 FEA”; Document ID 2042). As a first step, OSHA identifies the North American Industrial Classification System (NAICS) industries, both in the shipyard and construction sectors, with potential worker exposure to beryllium. Next, OSHA provides statistical information on the affected industries, including the number of affected entities and establishments, the number of workers whose exposure to beryllium could result in disease or death (“at-risk workers”), and the average revenue and profits for affected entities and establishments by six-digit NAICS industry. 1 This information is provided for each affected industry as a whole, as well as for small entities, as defined by the Small Business Administration (SBA), and for “very small” entities, defined by OSHA as those with fewer than 20 employees, in each affected industry (U.S. Census Bureau, 2014). 1 The Census Bureau defines an establishment as a single physical location at which business is conducted or services or industrial operations are performed. The Census Bureau defines a business firm or entity as a business organization consisting of one or more domestic establishments in the same state and industry that are specified under common ownership or control. The firm and the establishment are the same for single-establishment firms. For each multi-establishment firm, establishments in the same industry within a state will be counted as one firm; the firm employment and annual payroll are summed from the associated establishments. (U.S. Census Bureau, Statistics of U.S. Businesses, Glossary, 2017, https://www.census.gov/programs-surveys/susb/about/glossary.html (Accessed March 3, 2017). For each industry sector identified, the Agency describes the uses of beryllium and estimates the number of establishments and employees that may be affected by this rulemaking. Employee exposure to beryllium can also occur as a result of certain processes (such as welding) that are found in many industries. This analysis will use the term “application group” to refer to a cross-industry group with a common process. Beryllium is rarely used by all establishments in any particular industry because of its unique properties and relatively high cost. In Chapter III of the 2016 FEA, OSHA described each application group; identified the processes and occupations with beryllium exposure, including available sampling exposure measurements; and explained how OSHA estimated the number of establishments working with beryllium and the number of employees exposed to beryllium. Those estimates and the new exposure profile for abrasive blasting in construction and shipyards and welding in shipyards are presented in this preamble, along with a brief description of the application groups and an explanation of the derivation of the new exposure profiles. For additional information about these data and the application groups, please see Chapter III of the 2016 FEA. 2 Finally, the Agency discusses wage data, the hire rate, and current industry practices. 2 OSHA contractor Eastern Research Group (ERG) provided support for the 2016 FEA. References to ERG's analytical work appear throughout this PEA. All costs are estimated in 2016 dollars. Costs reported in 2016 dollars were applied directly in this PEA; wage data were updated to 2016 dollars using BLS data; all other costs reported for years earlier than 2016 were updated to 2016 dollars using the GDP implicit price deflator (OSHA, 2017). Affected Application Groups OSHA's 2016 FEA identified one affected application group in the construction sector and two application groups in the shipyard sector. Both the shipyard and construction sectors have employees in the abrasive blasting application group, and the shipyard sector has employees in the welding application group. In the following sections, OSHA describes the application groups in construction and shipyards that will be affected by this proposal. Abrasive Blasting Abrasive blasting involves the use of hand-held or automatic equipment to direct a stream of abrasive material at high speed against a surface to clean, abrade, etch, or otherwise change the original appearance or condition of the surface (WorkSafe, 2000, Document ID 0692). Surfaces commonly treated by abrasive blasting techniques include iron, steel, aluminum, brass, copper, glass, masonry (brick, concrete, stone, etc.), sand castings, plastic, and wood (NIOSH, 1976, Document ID 0779). In construction and shipyards, abrasive blasting is primarily used for two purposes: • Cleaning surfaces by removing unwanted paint, rust, scale, dirt, salts, grease, and flux in preparation for painting, anodizing, welding, or other processes requiring a clean surface. • Producing a desired matte or decorative finish. Abrasive blasting systems generally include an abrasive container or blasting pot, a propelling device, and an abrasive blasting nozzle. The three main propelling methods are air pressure, water pressure, and centrifugal force provided by the use of wheels. Air blasting systems use compressed air to propel the abrasive (dry blasting), water blasting systems use either compressed air (wet blasting) or high pressure water (hydroblasting), and centrifugal wheel systems use centrifugal and inertial forces (EPA, 1997, Document ID 0784). Abrasive blasting can generate large quantities of dust that contains a variety of metals and toxic air contaminants. Workers can have exposures to multiple air contaminants from both the abrasive and the surface being blasted. The source of the air contaminants includes the base material being blasted, the surface coating(s) being removed, the abrasive being used, and any abrasive contamination from previous blasting operations (Burgess 1991, Document ID 0907). Potential air contaminants that might be associated with abrasive blasting and their sources are listed in Table IV.65 in Chapter IV of the FEA in support of the new beryllium standards. Abrasives A number of different types of abrasives containing beryllium in trace amounts can be used for blasting media depending on the application. The most commonly used abrasives in the construction industry ( e.g., to etch the surfaces of outdoor structures, such as bridges, prior to painting) include coal slag and steel grit (Meeker et al., 2006, Document ID 0698). Copper slag produced as by-product at copper smelters can also be used as an abrasive. Shipyards are large users of mineral slag abrasives. In a survey of 26 U.S. shipyards and boatyards about abrasive media usage conducted for the Navy, the use of coal slag abrasives accounted for 68 percent and copper slag accounted for 20 percent (NSRP, 1999, Document ID 0767). Workers who perform abrasive blasting using either coal or copper slag abrasives are potentially exposed to beryllium (Greskevitch, 2000, Document ID 0701). OSHA requests updates on this assessment of commonly used abrasive blasting media in construction and shipyards. Affected Job Categories Abrasive blasting is mainly used in construction and shipyard operations by painting contractors and welders. (NIOSH, 1976, Document ID 0779). The primary abrasive blasting job categories in construction and shipyards include the abrasive blasting operator (blaster) and the pot tender. Support personnel (cleanup helper) might also be employed to clean up ( e.g., by vacuuming or sweeping) and recycle spent abrasive, and to set up, dismantle, and move containment systems and supplies (NIOSH, 1995, Document ID 0773). As explained in its 2016 FEA, OSHA estimated that 80 percent of all shipyard blasting operations and 75 percent of construction blasting operations generate potential beryllium exposures. OSHA has maintained the same assumption here and invites comment on these estimates. As was estimated in OSHA's industry profile for the 2016 FEA, for this PEA OSHA estimated there was one pot tender for each at-risk abrasive blaster and one abrasive media cleanup worker for every two abrasive blasters. The Agency invites comment on these estimates. Final Estimate of Populations at Risk in Abrasive Blasting In the 2016 FEA, OSHA developed final estimates of the numbers of workers who perform abrasive blasting. These at-risk populations include workers in the construction sector engaged in blasting building exteriors or blasting ancillary to painting of bridges, tunnels, and related highways; ships; and other non-building construction. Shipyard workers might perform blasting as part of ship surface cleaning and preparation prior to painting or other surface coating. In the 2016 FEA, based on the BLS description of broad occupational classifications, OSHA's estimates grouped these workers in the categories “painters, construction, and maintenance” or “painters, transportation equipment.” 3 The same grouping is applied in this PEA. 3 In the Bureau of Labor Statistics' Occupational Outlook Handbook (BLS, 2017b), the description of the duties of construction and maintenance painters includes the following: A few painters—mainly industrial—use special safety equipment. For example, painting in confined spaces, such as the inside of a large storage tank, requires workers to wear self-contained suits to avoid inhaling toxic fumes. On some projects they may operate abrasive blasters to remove old coatings, which may require the use of additional clothing and protective eyewear. (See https://www.bls.gov/ooh/construction-and-extraction/painters-construction-and-maintenance.htm#tab-2, accessed April 5, 2017.) Below in Tables V-1 and V-2, OSHA presents its estimate of affected blasters and blasting support personnel in construction and shipyards; this estimate, reported in the 2016 FEA, is now the Agency's preliminary estimate for this NPRM. OSHA requests public comment on the estimate as well as the methodology, described in Chapter III of the 2016 FEA, for estimating affected abrasive blasters and abrasive blasting support personnel in construction and shipyards. Table V-1—Preliminary Profile of Establishments and Employees in Abrasive Blasting-Construction Affected by OSHA's Proposed Deregulatory Action on Beryllium NAICS Industry/job category Establishments Employees Affected establishments Affected employees 238320 Painting and Wall Covering Contractors 31,376 163,073 1,090 4,360 Abrasive Blaster 1,744 Pot Tender 1,744 Cleanup 872 238990 All Other Specialty Trade Contractors 29,072 193,631 1,010 4,040 Abrasive Blaster 1,616 Pot Tender 1,616 Cleanup 808 Total 60,448 356,704 2,100 8,400 Note: Data in columns may not sum to totals due to rounding. Sources: U.S. Census Bureau, 2014; US DOL, Directorate of Standards and Guidance, Office of Regulatory Analysis (2017). Table V-2—Preliminary Profile of Establishments and Employees in Abrasive Blasting-Shipyards Affected by OSHA's Proposed Deregulatory Action on Beryllium NAICS Industry Establishments Employees Affected establishments Affected employees 336611a Ship Building and Repairing 689 108,311 689 3,060 Abrasive Blaster 1,224 Pot Tender 1,224 Cleanup 612 Total 689 108,311 689 3,060 Note: Data in columns may not sum to totals due to rounding. Sources: U.S. Census Bureau, 2014; US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (2017). Welding Beryllium exposures can occur in arc and gas welding operations when welding on base materials containing beryllium and when using equipment with electrodes that include beryllium (hereafter generally referred to simply as “welding”). Note that “gas welding” in this context also involves use of electrodes; the gas used is to protect the weld from the atmosphere. Beryllium exposures during welding are not common and, when observed, are low (see Chapter IV: Section 10 of the 2016 FEA in support of the new beryllium standards for an extended discussion of welding). For this preliminary profile, only arc and gas welding would be affected by the proposed deregulatory action. 4 4 The other common type of welding, resistance welding, does not typically generate beryllium exposure. The principal area of welding exposures is among workers welding beryllium or beryllium-alloy products ( see Chapter IV: Section 10 of the FEA in support of the new beryllium standards). Welding in Shipyards In its 2016 FEA, OSHA included NAICS 336611: Ship Building and Repairing, in the set of industries in the Welding application group affected by the final rule. The number of establishments and employees in this shipyard industry affected by the final rule, and therefore affected by this proposal, is displayed in Table V-3. As shown in the table, based on 2015 BLS Occupational Employment Statistics data, OSHA estimates that 28 percent of establishments in NAICS 336611: Ship Building and Repairing conduct arc and gas welding. Based on analysis by ERG of customer summary data submitted in a comment by Materion, OSHA further estimates that 3.4 percent of these establishments weld beryllium or beryllium alloy products (ERG, 2015, Document ID 0385, Workbook #8; Kolanz, 2001, Document ID 0091). OSHA requests public comment on the estimates shown in Table V-3. Table V-3—Preliminary Profile of Establishments and Employees in Shipyards (Ship Building and Repairing) Affected by OSHA's Proposed Deregulatory Action on Beryllium NAICS code Industry a Total establishments b Total employees b Percent of establishments conducting arc and gas welding c Welding establishments All employees in welding establishments d Number of welding establishments using beryllium e Welders working on beryllium alloys f 336611b Ship Building and Repairing 689.0 108,311.0 28% 192.9 30,327.1 6.6 26.4 Sources: U.S. Census Bureau, 2014; BLS, 2016; US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (2017). a Based on industries with the largest number of positive beryllium samples for welders in the IMIS database (OSHA, 2004). These industries account for over 60 percent of the positive general industry samples for welders. b U.S. Census Bureau, 2014. c BLS, 2016. d Based on average industry size. e Estimated as the total number of establishments in the industry (689), multiplied by the percentage of establishments employing welders (28%), and further multiplied by the percentage of establishments welding on beryllium alloys (3.4 percent). (Kolanz, 2001, Document ID 0091). f Based on an ERG estimate of 500 establishments with an average of 4 workers that perform welding on beryllium alloys, or 2.4 percent of establishments with welding. The ERG estimate was derived from Brush Wellman Inc. data reporting approximately 2,000 welders performing welding on beryllium alloys (Kolanz, 2001, Document ID 0091). Summary of Affected Establishments and Employers As shown in Table V-4, OSHA estimates that a total of 11,486 workers in 2,796 establishments will be affected by this proposal. Also shown are the estimated annual revenues for these entities. Table V-5 presents the Agency's preliminary estimate of affected entities defined as small by the Small Business Administration (SBA); Table V-6 presents OSHA's preliminary estimate of affected establishments and employees by NAICS industries for the subset of small entities with fewer than 20 employees. 5 For the tables showing the characteristics of small and very small entities, OSHA generally assumed that beryllium-using small entities and very small entities would be the same proportion of overall small and very small entities as the proportion of beryllium-using entities to all entities as a whole in a NAICS industry. 5 Tables V-5 and V-6 indicate that small entities affected by the proposed rule contain 2,714 affected establishments affiliated with entities that are small by SBA standards and 2,365 affected establishments affiliated with entities that employ fewer than 20 employees. However, the small and very small entity figures in Tables V-5 and V-6 were not used to prepare the cost savings estimates in Section D of this PEA. For costing purposes in Section D, OSHA included small establishments owned by larger entities in the figures in Tables V-5 and V-6 because such establishments do not qualify as “small entities” for the purposes of a Regulatory Flexibility Analysis. To see the difference in the number of affected establishments by size for costing purpose, consider the example of a “large entity” with 500 employees, consisting of 50 ten-employee establishments. In Section B., each of these 50 establishments would be excluded from Tables V-5 and V-6 because they are part of a “large entity”; in Section D., where all establishments are included because there is no filter for entity size, each would be considered a small establishment. Thus, for purposes of Section D., there are 2,399 affected establishments with fewer than 20 employees, 369 affected establishments with between 20 and 499 employees, and 28 establishments with more than 500 employees; these estimates were derived in the cost spreadsheet by NAICS industry and in total (see, for example, Columns TK through TM in the “Rule” tab as developed for familiarization cost savings; the totals are in cells TK5 through TM5) (OSHA, 2017). While not shown in the tables or used in the analysis, Census (2015) Statistics of US Businesses data suggest there are also a total of 3,464 establishments affiliated with entities in construction and shipyards employing between 20 and 499 employees, of which approximately 157 would be affected by the rule. OSHA requests public comment on the profile data presented in Tables V-4, V-5, and V-6. Table V-4—Characteristics of Industries Affected by OSHA's Proposed Deregulatory Action for Beryllium—All Entities Application group NAICS Industry Total entities a Total establishments a Total employees a Affected entities b Affected establishments b Affected employees b Total revenues ($1,000) a Revenues/entity Revenues/ establishment Abrasive Blasting—Construction Abrasive Blasting—Construction 238320 Painting and Wall Covering Contractors 31,317.0 31,376.0 163,073.0 1,088.0 1,090.0 4,360.0 $19,595,278 $625,707 $624,531 Abrasive Blasting—Construction 238990 All Other Specialty Trade Contractors 28,734.0 29,072.0 193,631.0 998.3 1,010.0 4,040.0 39,396,242 1,371,067 1,355,127 Abrasive Blasting—Shipyards * Abrasive Blasting—Shipyards 336611a Ship Building and Repairing 604.0 689.0 108,311.0 604.0 689.0 3,060.0 26,136,187 43,271,832 37,933,508 Welding in Shipyards ** Welding in Shipyards 336611b Ship Building and Repairing 604.0 689.0 108,311.0 5.8 6.6 26.4 26,136,187 43,271,832 37,933,508 Total Construction Subtotal 60,051.0 60,448.0 356,704.0 2,086.2 2,100.0 8,400.0 58,991,519 982,357 975,905 Shipyard Subtotal 1,208.0 1,378.0 216,622.0 609.8 695.6 3,086.4 52,272,373 43,271,832 37,933,508 Total, All Industries 61,259.0 61,826.0 573,326.0 2,696.0 2,795.6 11,486.4 111,263,893 1,816,286 1,799,629 a U.S. Census Bureau, Statistics of U.S. Businesses: 2012, Document ID 2034. b OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the number of affected employees. Within each NAICS industry, the number of affected entities was calculated as the product of total number of entities for that industry and the ratio of the number of affected establishments to the number of total establishments. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. Table V-5—Characteristics of Industries Affected by OSHA's Final Standard for Beryllium—Small Entities Application group NAICS Industry SBA small business classification (employees) a Small business entities b Establishments for small entities b Small entity employees b Affected small business entities c Affected small establishments c Affected employees for small entities c Total revenues for small entities ($1,000) b Revenues per small entity Revenues per small business establishment Abrasive Blasting—Construction Abrasive Blasting—Construction 238320 Painting and Wall Covering Contractors 100 31,221.0 31,243.0 133,864.0 1,084.6 1,085.4 3,579.1 $16,552,251 $530,164 $529,791 Abrasive Blasting—Construction 238990 All Other Specialty Trade Contractors 100 28,537.0 28,605.0 143,112.0 991.4 993.8 2,985.9 29,789,492 1,043,890 1,041,409 Abrasive Blasting—Shipyards * Abrasive Blasting—Shipyards 336611a Ship Building and Repairing 1,250 585.0 629.0 27,170.0 585.0 629.0 960 6,043,893 10,331,440 9,608,732 Welding in Shipyards ** Welding in Shipyards 336611b Ship Building and Repairing 1,250 585.0 629.0 27,170.0 5.6 6.0 6.6 6,043,893 10,331,440 9,608,732 Total Construction Subtotal 59,758.0 59,848.0 276,976.0 2,076.0 2,079.2 6,565.0 46,341,743 775,490 774,324 Shipyard Subtotal 1,170.0 1,258.0 54,340.0 590.6 635.0 774.2 12,087,785 10,331,440 9,608,732 Total, All Industries 60,928.0 61,106.0 331,316.0 2,666.6 2,714.2 7,339.2 58,429,529 958,993 956,200 Data may not sum to totals due to rounding. a SBA Size Standards, 2016 (Document ID 2026). Data were not available specifically for small entities with more than 500 employees. For SBA small business classifications specifying 750 or more employees, OSHA used data for all entities in the industry. b U.S. Census Bureau, Statistics of US Businesses: 2012 (Document ID 2034). c OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the number of affected employees. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. Table V-6—Characteristics of Industries Affected by OSHA's Final Standard for Beryllium—Entities With Fewer Than 20 Employees Application group NAICS Industry Entities with <20 employees a Establishments for entities with <20 employees a Employees for entities with <20 employees a Affected entities with <20 employees b Affected establishments for entities with <20 employees b Affected employees for entities with <20 employees b Total revenues for entities with <20 employees ($1,000) a Revenues per entity with <20 employees Revenue per estab. for entities with <20 employees Abrasive Blasting—Construction Abrasive Blasting—Construction 238320 Painting and Wall Covering Contractors 29,953.0 29,957.0 87,984.0 1,040.6 1,040.7 2,352.4 $10,632,006 $354,956 $354,909 Abrasive Blasting—Construction 238990 All Other Specialty Trade Contractors 27,026.0 27,041.0 90,822.0 938.9 939.4 1,894.9 19,232,052 711,613 711,218 Abrasive Blasting—Shipyards * Abrasive Blasting—Shipyards 336611a Ship Building and Repairing 380.0 381.0 2,215.0 380.0 381.0 381.0 547,749 1,441,445 1,437,661 Welding in Shipyards ** Welding in Shipyards 336611b Ship Building and Repairing 380.0 381.0 2,215.0 3.6 3.6 3.6 547,749 1,441,445 1,437,661 Total Construction Subtotal 56,979.0 56,998.0 178,806.0 1,979.5 1,980.1 4,247.3 29,864,058 524,124 523,949 Shipyard Subtotal 760.0 762.0 4,430.0 383.6 384.6 384.6 1,095,498 1,441,445 1,437,661 Total, All Industries 57,739.0 57,760.0 183,236.0 2,363.1 2,364.8 4,632.0 30,959,556 536,198 536,003 Data may not sum to totals due to rounding. a U.S. Census Bureau, Statistics of US Businesses: 2012 (Document ID 2034). b OSHA estimates of employees potentially exposed to beryllium and associated entities and establishments. Affected entities and establishments constrained to be less than or equal to the number of affected employees. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. Beryllium Exposure Profile of At-Risk Workers The exposure profiles for abrasive blasting presented here were taken directly from Chapter IV of the 2016 FEA, and are more fully summarized in Section IV of this preamble. The exposure profile for welding in shipyards, however, is based on data presented in appendices 2 and 3 of Section 10.6 of Chapter IV, and again is more fully summarized in Section IV. Those data measure exposures of shipyard based welders, and OSHA has preliminarily determined that it is a more suitable data set on which to base the exposure profile of welders in shipyards than the data used in the 2016 FEA, which were based on general industry welding exposures. 6 Exposure profiles, by job category, were developed from individual exposure measurements that were judged to be substantial and to contain sufficient accompanying description to allow interpretation of the circumstances of each measurement. The resulting exposure profiles show the job categories with current exposures to beryllium above the new PEL and, thus, the workers for whom beryllium controls would be implemented under the final beryllium standard. 6 The use of the general industry exposure profile for shipyard welders was inadvertent, and the differences between the exposure monitoring data from the general industry and these welding data are not significantly different ( e.g., the exposure data for the shipyard welders show 94.8 percent of the exposures occurring below 0.1 ug/m 3 , while the general industry estimates show 56.8 percent of the exposures occurring below 0.1 ug/m 3 ) and do not materially change the exposure assessment assumptions. Tables V-7 and V-8 summarize, from the exposure profiles, the number of workers at risk of beryllium exposure and the distribution of 8-hour TWA beryllium exposures by affected application group and job category. Exposures are grouped into ranges ( e.g., >0.05 μg/m 3 and <0.1 μg/m 3 ) that represent the percentages of employees in each job category and sector currently exposed at levels within the indicated range. Table V-9 presents data by NAICS code on the estimated number of workers currently at risk of beryllium exposure for each of the same exposure ranges. As shown, an estimated 2,167 (after rounding) workers currently have beryllium exposures above the final PEL of 0.2 μg/m 3 . OSHA requests public comment on the exposure profile shown in Tables V-7, V-8, and V-9. Table V-7—Distribution of Beryllium Exposures by Application Group and Job Category or Activity Job category/activity Exposure range (µg/m 3 ) 0 to ≤0.0.5 a (%) >0.05 to ≤0.1 a (%) >0.1 to ≤0.2 (%) >0.2 to ≤0.25 (%) >0.25 to ≤0.5 (%) >0.5 to ≤1.0 (%) >1.0 to ≤2.0 (%) >2.0 (%) Total (%) Abrasive Blasting—Construction & Shipyards * Abrasive Blaster 15.2 15.2 25.7 2.5 12.4 4.7 5.4 18.9 100.0 Pot Tender 28.1 28.1 43.8 0.0 0.0 0.0 0.0 0.0 100.0 Cleanup 33.3 33.3 26.7 0.0 0.0 0.0 3.3 3.3 100.0 Welding—Shipyards ** Welder 47.4 47.4 1.5 0.0 0.0 3.0 0.7 0.0 100.0 Note: Data may not sum to totals due to rounding. a The lowest exposure range in OSHA's technological feasibility analysis is ≤0.1 µg/m 3 (see Chapter IV-02, Limits of Detection for Beryllium Data, in the FEA (Document ID 2042) in support of the new beryllium standards). Because OSHA lacked information on the distribution of worker exposures in this range, the Agency evenly divided the workforce exposed at or below 0.1 µg/m 3 into the two categories shown in this table and in the columns with identical headers in Tables V-8 and V-9. OSHA recognizes that this simplifying assumption may overestimate exposure in these lower exposure ranges; the Agency requests comment as to whether members of the public share this observation. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility. Table V-8—Number of Workers Exposed to Beryllium by Affected Application Group, Job Category, and Exposure Range [µg/m 3 ] Application group/job category Exposure level (µg/m 3 ) 0 to ≤0.05 >0.05 to ≤0.1 >0.1 to ≤0.2 >0.2 to ≤0.25 >0.25 to ≤0.5 >0.5 to ≤1.0 >1.0 to ≤2.0 >2.0 Total Abrasive Blasting—Construction Abrasive Blaster 510.8 510.8 862.7 83.2 416.2 158.9 181.6 635.7 3,360.0 Pot Tender 945.0 945.0 1,470.0 0.0 0.0 0.0 0.0 0.0 3,360.0 Cleanup 560.0 560.0 448.0 0.0 0.0 0.0 56.0 56.0 1,680.0 Abrasive Blasting—Shipyards * Abrasive Blaster 186.1 186.1 314.3 30.3 151.6 57.9 66.2 231.6 1,224.0 Pot Tender 344.3 344.3 535.5 0.0 0.0 0.0 0.0 0.0 1,224.0 Cleanup 204.0 204.0 163.2 0.0 0.0 0.0 20.4 20.4 612.0 Welding—Shipyards ** Welder 12.5 12.5 0.4 0.0 0.0 0.8 0.2 0.0 26.4 Total Construction Subtotal 2,015.8 2,015.8 2,780.7 83.2 416.2 158.9 237.6 691.7 8,400.0 Shipyard Subtotal 746.8 746.8 1,013.4 30.3 151.6 58.7 86.8 252.0 3,086.4 Total, All Industries 2,762.7 2,762.7 3,794.1 113.6 567.8 217.6 324.4 943.6 11,486.4 Note: Data may not sum to totals due to rounding. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Sources: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility and Office of Regulatory Analysis-Health. Table V-9—Number of Workers Exposed to Beryllium by Affected Industry and Exposure Range [µg/m 3 ] Application group/NAICS Industry Exposure level (µg/m 3 ) 0 to ≤0.05 >0.05 to ≤0.1 >0.1 to ≤0.2 >0.2 to ≤0.25 >0.25 to ≤0.5 >0.5 to ≤1.0 >1.0 to ≤2.0 >2.0 Total Abrasive Blasting—Construction 238320 Painting and Wall Covering Contractors 1,046.3 1,046.3 1,443.3 43.2 216.0 82.5 123.3 359.0 4,360.0 238990 All Other Specialty Trade Contractors 969.5 969.5 1,337.4 40.0 200.2 76.4 114.3 332.7 4,040.0 Abrasive Blasting—Shipyards * 336611a Ship Building and Repairing 734.3 734.3 1,013.0 30.3 151.6 57.9 86.6 252.0 3,060.0 Welding in Shipyards ** 336611b Ship Building and Repairing 12.5 12.5 0.4 0.0 0.0 0.8 0.2 0.0 26.4 Total Construction Subtotal 2,015.8 2,015.8 2,780.7 83.2 416.2 158.9 237.6 691.7 8,400.0 Shipyard Subtotal 746.8 746.8 1,013.4 30.3 151.6 58.7 86.8 252.0 3,086.4 Total, All Industries 2,762.7 2,762.7 3,794.1 113.6 567.8 217.6 324.4 943.6 11,486.4 Note: Data may not sum to totals due to rounding. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Sources: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Technological Feasibility and Office of Regulatory Analysis-Health. Loaded Wages and New Hire Rate For this PEA, OSHA updated the 2016 FEA wage estimates from 2015 to 2016 levels using data for base wages by Standard Occupational Classification (SOC) from the March 2017 Occupational Employment Statistics survey of the Bureau of Labor Statistics. OSHA applied a fringe markup (loading factor) of 46.0 percent of base wages (BLS, 2016c, Document ID 1980); 7 loaded hourly wages by application group and SOC are shown in Table V-10. 7 A fringe markup (loading factor) of 46.0 percent was calculated in the following way. Employer costs for employee compensation for civilian workers averaged $33.94 per hour worked in March 2016. Wages and salaries averaged $23.25 per hour worked and accounted for 68.5 percent of these costs, while benefits averaged $10.70 and accounted for the remaining 31.5 percent. Therefore, the fringe markup (loading factor) is $10.70/$23.25, or 45.6 percent. Total employer compensation costs for private industry workers averaged $32.06 per hour worked in March 2016 (BLS, 2016c, Document ID 1980). OSHA also updated the new hire rate for manufacturing from its 2016 FEA estimate of 27.2 percent to a final estimate of 23.9 percent (BLS, 2016b, Document ID 1977). The Agency applied the updated rate (23.9 percent) in this preliminary profile and requests public comment on the preliminary wage and hire rates shown in Table V-10. Baseline Industry Practices and Existing Regulatory Requirements (“Current Compliance”) On Hazard Controls and Ancillary Provisions Table V-11 reflects OSHA's estimate of current industry compliance rates, by application group and job category, for each of the ancillary provisions that, under the January 9, 2017 final rule, would affect the establishments that are subject to this preliminary deregulatory action. See Chapter III of the 2016 FEA for additional discussion of the current baseline compliance rates for each provision, which were estimated based on site visits, industry contacts, published literature, and the Final Report of the Small Business Advocacy Review (SBAR) Panel (SBAR, 2008, Document ID 0345). Note that the compliance rate is typically the same for all jobs in a given sector, except for administrative workers, who generally have zero percent compliance with hygiene requirements and 100 percent compliance with PPE (because they are not expected to need PPE during work assignments). In the 2016 FEA, OSHA estimated that abrasive blasters in construction and shipyards had a 75 percent compliance rate with the PPE requirements in the beryllium standards. However, upon further review of existing OSHA standards, OSHA is revising that estimate to 100 percent compliance for the purpose of this preliminary economic analysis. In construction, OSHA standard 29 CFR 1926.57(f)(5)(v) requires abrasive blasting operators to wear full PPE, including respirators, gloves, safety shoes, and eye protection. Similarly, 29 CFR 1915.34(c)(3) requires full PPE for abrasive blaster operators performing mechanical paint removal in shipyards. Because it would not be appropriate to claim cost savings for withdrawing a rule when existing rules already have the same requirements, for the purpose of calculating cost savings and foregone benefits in this proposal, OSHA preliminarily estimates that withdrawing the beryllium rule's PPE requirements for abrasive blaster operators in construction and shipyards would have no effect on PPE compliance because those workers are already required to wear full PPE. In addition, OSHA also found, after a review of shipyard personal protective equipment requirements, that gloves are required under 1915.157(a) to protect workers from hazards faced by welders, such as thermal burns. 8 Therefore, for the purpose of calculating cost savings and foregone benefits in this proposal, the Agency now preliminarily estimates that abrasive blasting operators in shipyards and construction and welders in shipyards are already equipped with full personal protective equipment 100 percent of the time when exposed to beryllium. 8 In fact, the 0 percent baseline compliance rate for PPE in shipyard welding in the 2016 FEA was simply a mistake insofar as baseline compliance rate for PPE in general industry was 100 percent in the same document. For a discussion of existing welding requirements, see the discussion in Section V.C, Costs, in this preamble. Additionally, upon review, OSHA has preliminarily determined that relevant PPE is required by the existing Personal Protective Equipment standard (1926.95) and the existing Hand and Body Protection standard (1915.157) to protect blasting helpers in construction and shipyards, respectively, from dermal exposure to beryllium dust. Therefore, the Agency now preliminarily estimates that all affected employees are already required to be equipped with PPE 100 percent of the time when exposed to beryllium, and uses this preliminary determination in calculating proposed cost savings and foregone benefits. OSHA requests public comment on this revised approach and on the other preliminary baseline compliance estimates shown in Table V-11, as well as the methodology behind them as set forth in Chapter III of the 2016 FEA. OSHA also reviewed existing housekeeping requirements and found that some housekeeping is also already required for abrasive blasting operations in construction and shipyards. CFR 1926.57(f)(7) requires that dust not be allowed to accumulate and that spills be cleaned up promptly. The general industry Ventilation standard requires the same in abrasive blasting in shipyards ( see 29 CFR 1910.94(a)(7), 1910.5(c)). 29 CFR 1926.57(f)(3) and (f)(4) also require exhaust ventilation and dust collection and removal systems in abrasive blasting operations in construction. Therefore, compliance with 1926.57(f) and 1910.94(a)(7) already ensures that employers take some steps during the blasting operations to prevent accumulations of dust sufficient to create exposures exceeding the PEL in clean-up after blasting operations are completed. 9 For these reasons, in this proposal, OSHA is only taking a cost savings for housekeeping in abrasive blasting operations in construction and shipyards for the cost of HEPA-filtered vacuums and similar equipment. 9 As explained in the Abrasive Blasting section of the Technological Feasibility chapter of the FEA, abrasive blasting cleanup workers are those who are “responsible for cleaning up spent abrasive ( e.g., by vacuuming or sweeping) at the end of the day's blasting.” Of the 30 cleanup workers in the exposure profile of the FEA, two had exposures over the new PEL of 0.2 µg/m 3 . One cleanup worker had an 8-hour TWA sample result of 1.1 µg/m 3 , but blasting took place in the area during this worker's cleanup task and it is likely that the nearby abrasive blasting contributed to the sample result. The other cleanup worker had a sample result of 7.4 µg/m 3 , but that worker's exposure appears to be associated with the use of compressed air for cleaning in conjunction with nearby abrasive blasting. In Table V-11, where current labor compliance rates are 100 percent, OSHA indicates that removal of the ancillary provision in question would have no effect on labor compliance rates. OSHA welcomes comments on the baseline compliance estimates shown in Table V-11, particularly with respect to PPE and housekeeping. As a final point on baseline industry practices, OSHA acknowledges the possibility of a future decline in the use of coal slag abrasive materials and welcomes comment and information on this issue. To the extent that coal slag abrasives are replaced by other blasting materials which do not have the potential for beryllium exposures of concern, the costs and benefits of the PELs for abrasive blasting operations would also decrease. Table V-10—Loaded Hourly Wages and Hire Rate for Occupations (Jobs) Exposed to Beryllium and Affected by OSHA's Proposed Action Provision in the standard Job NAICS SOC a Occupation Median hourly wage Fringe markup percentage, total b Loaded hourly (or daily d ) wage Monitoring c Industrial Hygienist Consultant N/A N/A N/A N/A N/A $164.81 Monitoring d IH Technician—Initial d 2,642.59 IH Technician—Additional and Periodic d 1,321.30 Regulated Area/Job Briefing e Production Worker 31-33 51-0000 Production Occupations $16.55 46 24.16 Medical Surveillance e Human Resources Manager 31-33 11-3121 Human Resources Managers 49.61 46 72.42 Exposure Control Plan, Medical Surveillance, and Medical Removal e Clerical 31-33 43-4071 File Clerks 15.43 46 22.53 Training e Training Instructor 31-33 13-1151 Training and Development Specialists 28.32 46 41.34 Medical Surveillance e Physician (Employers' Physician) 31-33 29-1062 Family and General Practitioners 90.96 46 132.79 Multiple Provisions f First Line Supervisor Various 51-1011 First-Line Supervisors of Production and Operating Workers 28.14 46 41.08 Sources: U.S. Dept. of Labor, OSHA, Directorate of Standards and Guidance. a 2010 Standard Occupational Classification System. Bureau of Labor Statistics. http://www.bls.gov/soc/classification.htm. b BLS, 2016c, Document ID 1980. c ERG estimates based on discussions with affected industries, and inflated to 2016 dollars (BEA, 2017). d Wages used in the economic analysis for the Silica final rule, inflated to 2016 dollars. Wage rates shown are estimated daily remuneration for industrial hygiene services. e BLS, 2017a. f BLS, 2017a; Weighted average for SOC 51-1011 in NAICS 313000, 314000, 315000, 316000, 321000, 322000, 323000, 324000, 325000, 326000, 327000, 335000, 336000, 337000, and 339000. Table V-11—Estimated Current Compliance Rates for Industry Sectors Affected by OSHA's Proposed Deregulatory Action on Beryllium Application group Job Exposure monitoring (%) Beryllium work areas (%) Regulated areas (%) Medical surveillance a (%) Medical removal (%) Exposure control plan (%) PPE Hygiene Employee (%) Establishment (%) Training (%) Housekeeping labor Vacuum, bags, labels (%) Abrasive Blasting Construction All Blasting Construction Abrasive Blaster 0 75 75 75 0 75 100% No Effect 75 75 75 100% No Effect 0 Blasting Construction Pot Tender 0 75 75 75 0 75 100% No Effect 75 75 75 100% No Effect 0 Blasting Construction Cleanup 0 75 75 75 0 75 100% No Effect 75 75 75 100% No Effect 0 Blasting Shipyards * All Blasting Shipyards Abrasive Blaster 0 75 75 75 0 75 100% No Effect 75 75 75 100% No Effect 0 Blasting Shipyards Pot Tender 0 75 75 75 0 75 100% No Effect 75 75 75 100% No Effect 0 Blasting Shipyards Cleanup 0 75 75 75 0 75 100% No Effect 75 75 75 100% No Effect 0 Welding Shipyard ** All Welding Shipyard Welder 0 0 0 0 0 0 100% No Effect 0 0 0 0% 0 Source: U.S. DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis (OSHA, 2016). a Estimated compliance rates for medical surveillance do not include medical referrals. OSHA estimates that baseline compliance rates for medical referrals are zero percent for all application groups shown in the table. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. References Brush Wellman, 2004. Individual full-shift personal breathing zone (lapel-type) exposure levels collected by Brush Wellman in 1999 at their Elmore, Ohio facility were provided to ERG in August 2004. Brush Wellman, Inc., Cleveland, Ohio. Document ID 0578. Bureau of Economic Analysis, 2017 (BEA, 2017). Table 1.1.9. Implicit price deflators for Gross Domestic Product. February 28, 2017. Available at: https://www.bea.gov/iTable/iTable.cfm?ReqID=9&step=1#reqid=9&step=3&isuri=1&904=1929&903=13&906=a&905=2016&910=x&911=0 (Accessed March 2, 2017). Bureau of Labor Statistics, 2010 (BLS, 2011). Occupational Employment Statistics Survey—May 2010. Bureau of Labor Statistics, 2011 (BLS, 2012). Occupational Employment Statistics Survey—May 2011. Bureau of Labor Statistics, 2015 (BLS, 2016a). Occupational Employment Statistics Survey—May 2015. (Released March 30, 2016). Available at: http://www.bls.gov/oes/tables.htm (Accessed February 25, 2017). Bureau of Labor Statistics, 2015 (BLS, 2016b). Job Openings and Labor Turnover Survey (JOLTS): 2015. Available at: http://www.bls.gov/jlt/data.htm (Accessed April 25, 2016). Bureau of Labor Statistics, 2015 (BLS, 2016c). Employer Costs for Employee Compensation—March 2016. News Release, June 9, 2016. https://www.bls.gov/news.release/archives/ecec_06092016.htm (Accessed March 6, 2017). Bureau of Labor Statistics, 2016 (BLS, 2017a). Occupational Employment Statistics Survey—May 2016. (Released March 31, 2017). Available at http://www.bls.gov/oes/tables.htm (Accessed March 31, 2017). Bureau of Labor Statistics, 2015 (BLS, 2017b). Occupational Outlook Handbook. Painters, Construction and Maintenance. https://www.bls.gov/ooh/construction-and-extraction/painters-construction-and-maintenance.htm#tab-2. December 17, 2015. Accessed April 5, 2017. ERG, 2014. “Summary of ERG Interviews on Abrasive Blasters' Use of Beryllium Blast Media,” Memo from Eastern Research Group, October 6. Document ID 0516. Greskevitch, M., 2000. Personal email communication between Mark Greskevitch of the U.S. National Institute for Occupational Safety and Health (NIOSH) and Eastern Research Group, Inc., February 17, 2000. Document ID 0701. Kolanz, M., 2001. Brush Wellman Customer Data Summary. OSHA Presentation, July 2, 2001. Washington, DC. Document ID 0091. Meeker, J.D., P. Susi, and A. Pellegrino, 2006. Case Study: Comparison of Occupational Exposures Among Painters Using Three Alternative Blasting Abrasives. Journal of Occupational and Environmental Hygiene 3(9): D80-D84. Document IDs 0698; 1606; and 1815, Attachment 93. NIOSH, 1976. National Institute for Occupational Safety and Health, 1976. Abrasive Blasting Operations: Engineering Control and Work Practices Manual. NIOSH Publication No. 76-179. March 1976. Document ID 0779. NIOSH/KTA-Tator, 1998a. Evaluation of Substitute Materials for Silica Sand in Abrasive Blasting. KTA-Tator, Inc. Prepared for Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health. Contract No. 200-95-2946. September 1998. Document ID 1090; 1815, Attachment 85. NIOSH/KTA-Tator, 1998b. Evaluation of Substitute Materials for Silica Sand in Abrasive Blasting. Prepared for Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health. Prepared by KTA-Tator, Inc., Pittsburgh, Pennsylvania. Phase 2 (Field Investigations), December 1998. Document ID 0769; 1815, Attachment 86. The National Shipbuilding Research Program, 1999. (NSRP, 1999) Feasibility and Economics Study of the Treatment, Recycling and Disposal of Spent Abrasives. NSRP, U.S. Department of the Navy, Carderock Division, Naval Surface Warfare Center in cooperation with National Steel and Shipbuilding Company, San Diego, California. NSRP 0529, N1-93-1. April 9. Document ID 0767. The National Shipbuilding Research Program, 2000. Cost-Effective Clean Up of Spent Grit. NSRP, U.S. Department of the Navy, Carderock Division, Naval Surface Warfare Center in cooperation with National Steel and Shipbuilding Company, San Diego, California. NSRP 0570, N1-95-4. December 15. Document ID 0766. OSHA. (OSHA, 2004). OSHA Integrated Management Information System. Beryllium data provided by OSHA covering the period 1978 to 2003. Document ID 0340, Attachment 6. OSHA. (OSHA, 2005). Beryllium Exposure Data for Hot Work and Abrasive Blasting Operations from Four U.S. Shipyards (Sample Years 1995 to 2004). Data provided to Eastern Research Group (ERG), Inc. by the U.S. Department of Labor, Occupational Safety and Health Administration. March 2005. [Unpublished]. Document ID 1166. Accessed March 10, 2017. OSHA. (OSHA, 2009). Integrated Management Information System (IMIS). Beryllium exposure data, updated April 21, 2009. Data provided to Eastern Research Group, Inc. by the U.S. Department of Labor, Occupational Safety and Health Administration, Washington, DC [Unpublished, electronic files]. Document ID 1165. OSHA. (OSHA, 2016). Technical and Analytical Support for OSHA's Final Economic Analysis for the Final Standard on Beryllium and Beryllium Compounds: Excel Spreadsheets Supporting the FEA. OSHA, Directorate of Standards, Office of Regulatory Analysis. December 2016. Document ID OSHA-H005C-2006-0870-2044. OSHA. (OSHA, 2017). Excel Spreadsheets of Economic Costs, Impacts, and Benefits in Support of OSHA's Preliminary Economic Analysis (PEA) for the Proposed Deregulatory Action of Removing the Ancillary Revisions for the Maritime Sector and the Construction Sector from the Scope of the New Beryllium Standards: May 2017. Queensland Government, 1999. Abrasive Blasting Industry Code of Practice. Department of Employment, Training and Industrial Relations, Division of Workplace Health and Safety, Queensland Government, Australia. June 22, 1999. Document ID 0694. Small Business Advocacy Review, 2008 (SBAR, 2008). SBAR Panel Final Report, OSHA. Document ID 0345. U.S. Census Bureau, 2009. County Business Patterns: 2007. Available at http://www.census.gov/econ/cbp/index.html. U.S. Census Bureau, 2012. County Business Patterns: 2010. Available at http://www.census.gov/econ/cbp/index.html. Document ID 0685. U.S. Census Bureau, 2014. County Business Patterns: 2012. Available at http://www.census.gov/data/datasets/2012/econ/cbp/2012-cbp.html. U.S. Census Bureau, 2015. Statistics of US Businesses: 2012. Available at: https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html. U.S. Environmental Protection Agency, 1997a. (EPA, 1997a) Emission Factor Documentation for AP-42, Section 13.2.6, Abrasive Blasting. Final Report. U.S. EPA, Office of Air Quality Planning and Standards, Emission Factor and Inventory Group, Research Triangle Park, North Carolina. September. Document ID 0784. U.S. Environmental Protection Agency, 1997b. (EPA, 1997b) EPA Office of Compliance Sector Notebook Project: Profile of the Shipbuilding and Repair Industry. U.S. EPA, Office of Compliance, Office of Enforcement and Compliance Assurance, Washington, DC Document No. EPA/310-R-97-008. November 1997. Document ID 0783. U.S. Navy, 2003. 6-19-2: Attachment (1). Navy Occupational Exposure Database (NOED) Query Report Personal Breathing Zone Air Sampling Results for Beryllium. Document ID 0145. Accessed March 10, 2017. WorkSafe, 2000. Code of Practice: Abrasive Blasting. WorkSafe Western Australia Commission. June. Document ID 0692. C. Costs of Compliance Introduction In this section, OSHA estimates the cost savings to shipyard and construction establishments in all affected application groups as a result of this proposal to revoke the ancillary provisions in the new shipyard and construction beryllium standards. These ancillary provisions to be revoked encompass the following: exposure assessment, beryllium regulated areas (and competent persons in construction), a written exposure control plan, protective work clothing, hygiene areas and practices, housekeeping, medical surveillance, medical removal, and worker training. However, affected employers are estimated to incur a small additional cost to familiarize themselves with the changes to the ancillary provisions in the final rule as a result of this proposal. These cost savings incorporate OSHA's preliminary updated baseline compliance estimates described in section V.B, on which OSHA seeks comment. These estimates of cost savings are largely based on the cost estimates presented for Regulatory Alternative 2a in the preamble for the new beryllium standards (82 FR 2470, 2612-2615 (January 9, 2017)), which were in turn derived from the Costs of Compliance chapter (Chapter V) of the supporting Final Economic Analysis (“2016 FEA”; Document ID 2042). Note that, as OSHA has not proposed changing the permissible exposure limit (PEL) or short-term exposure limit (STEL) set forth in the new beryllium standards, OSHA has not estimated any cost savings related to engineering controls or respirators. OSHA retained the same calculation methodology from the 2016 FEA and has updated the wages and unit costs from 2015 to 2016 dollars. OSHA estimates that this proposal would yield a total annualized cost savings of $11.0 million using a 3 percent discount rate across the shipyard and construction sectors. All cost savings in this section are expressed in 2016 dollars and were annualized using discount rates of 3 percent and 7 percent, as required by OMB. 10 Costs in the 2016 FEA were expressed in 2015 dollars. Cost savings for this proposal have been updated to 2016 dollars. Unit costs developed in this section were multiplied by the number of workers who would have to comply with the provisions, as identified in Section B of this PEA (Profile of Affected Application Groups, Establishments, and Employees). The estimated number of affected workers depends on what level of exposure triggers a particular provision and the percentage of those workers estimated to already be in compliance. In a few cases, costs were calculated based on the number of firms. 10 See OMB Memo M-17-21 (April 5, 2017). OSHA included the 3 percent rate in its primary analysis, but Appendix V-A of this PEA also presents costs by NAICS industry and establishment size categories using, as alternatives, a 7 percent discount rate—shown in Table V-22—and a 0 percent discount rate—shown in Table V-23. The cost methodology is detailed in Chapter V of the 2016 FEA. A discussion of affected workers is presented in Section B of this PEA. Complete calculations are available in the OSHA spreadsheet in support of this PEA (OSHA, 2017). Annualization periods for expenditures on equipment are based on equipment life, and one-time costs are annualized over a 10-year period. 11 11 Executive Order 13563 directs agencies “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” In addition, OMB Circular A-4 suggests that analysis should include all future costs and benefits using a “rule of reason” to consider for how long it can reasonably predict the future and limit its analysis to this time period. Annualization should not be confused with depreciation or amortization for tax purposes. Annualization spreads costs out evenly over the time period (similar to the payments on a mortgage) to facilitate comparison of costs and benefits across different years. In cases where costs occur on an annual basis, but do not change between years, annualization is not necessary, and OSHA may refer simply to “annual” costs. Table V-12 shows, by affected application group and six-digit NAICS code, annualized compliance cost savings for all establishments, for all small entities (as defined by the Small Business Act and the Small Business Administration's (SBA's) implementing regulations; see 15 U.S.C. 632 and 13 CFR 121.201), and for all very small entities (defined by OSHA as those with fewer than 20 employees). The Agency notes that it did not include an overhead labor cost either in the FEA in support of the January 9, 2017 final standards or in the primary analysis of this PEA. It is important to note that there is not one broadly accepted overhead rate and that the use of overhead to estimate the marginal costs of labor raises a number of issues that should be addressed before applying overhead costs to analyze the costs of any specific regulation. There are several approaches to look at the cost elements that fit the definition of overhead and there are a range of overhead estimates currently used within the federal government—for example, the Environmental Protection Agency has used 17 percent, 12 and government contractors have been reported to use an average of 77 percent. 13 , 14 Some overhead costs, such as advertising and marketing, vary with output rather than with labor costs. Other overhead costs vary with the number of new employees. For example, rent or payroll processing costs may change little with the addition of 1 employee in a 500-employee firm, but those costs may change substantially with the addition of 100 employees. If an employer is able to rearrange current employees' duties to implement a rule, then the marginal share of overhead costs such as rent, insurance, and major office equipment ( e.g., computers, printers, copiers) would be very difficult to measure with accuracy ( e.g., computer use costs associated with 2 hours for rule familiarization by an existing employee). 12 Cody Rice, U.S. Environmental Protection Agency, “Wage Rates for Economic Analyses of the Toxics Release Inventory Program,” June 10, 2002. 13 Grant Thornton LLP, 2015 Government Contractor Survey. ( https://www.grantthornton.com/~/media/content-page-files/public-sector/pdfs/surveys/2015/Gov-Contractor-Survey.ashx ). 14 For a further example of overhead cost estimates, please see the Employee Benefits Security Administration's guidance at https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf. If OSHA had included an overhead rate when estimating the marginal cost of labor, without further analyzing an appropriate quantitative adjustment, and adopted for these purposes an overhead rate of 17 percent on base wages, as was done in a sensitivity analysis in the FEA in support of OSHA's 2016 final rule on Occupational Exposure to Respirable Crystalline Silica, the base wages would increase cost savings by approximately $238,000 per year, or approximately 2.2 percent above the primary estimate of cost savings. 15 15 OSHA is reluctant to make changes to the primary estimates in this proposal that create cost savings greater than the original costs estimated for the beryllium final rule. V-12—Total Annualized Cost Savings, by Sector and Six-Digit NAICS Industry, for Entities Affected by the Proposed Shipyard and Construction Beryllium Standards; Results Shown by Size Category (3 Percent Discount Rate, 2016 Dollars) Application group/NAICS Industry All establishments Small entities (SBA-defined) Very small entities (<20 employees) Abrasive Blasting—Construction 238320 Painting and Wall Covering Contractors $4,087,412 $3,445,984 $2,420,659 238990 All Other Specialty Trade Contractors 3,787,418 2,916,925 1,998,054 Abrasive Blasting—Shipyards * 336611a Ship Building and Repairing 3,081,907 990,140 524,187 Welding in Shipyards ** 336611b Ship Building and Repairing 34,217 11,283 6,421 Total Construction Subtotal 7,874,830 6,362,909 4,418,712 Shipyard Subtotal 3,116,125 1,001,423 530,608 Total, All Industries 10,990,954 7,364,331 4,949,321 Notes: Figures in rows may not add to totals due to rounding. * Employers in application group Abrasive Blasting—Shipyards are shipyards employing abrasive blasters that use mineral slag abrasives to etch the surfaces of boats and ships. ** Employers in application group Welding in Shipyards employ welders in shipyards. Some of these employers may do both welding and abrasive blasting. Source: US DOL, OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. Estimated baseline compliance rates were presented in Table V-11 in Section B of this preamble. The estimated costs for the new beryllium standards represented the additional costs necessary for employers to achieve full compliance. The cost of complying with the new beryllium standards' program requirements therefore depended on the extent to which OSHA believed employers in affected application groups had already undertaken some of the required actions. For example, paragraph (e)(1) of the new beryllium standard for shipyards required employers to provide regulated areas if employee exposures cannot be reduced below the final PEL by using engineering and work practice controls. If all employers in an industry have already provided regulated areas, perhaps by physically isolating high exposure processes and restricting access, then the industry's compliance rate for that requirement would be 100 percent, and that industry would incur no new costs for this provision under the new beryllium standard for shipyards. Similarly, if all employers in shipyards have already provided regulated areas, cost savings from removing this requirement would not include the avoidance of costs already incurred by employers in shipyards prior to enactment of the new beryllium standards. Throughout this section, OSHA presents cost-saving formulas in the text, usually in parentheses, to help explain the derivation of cost-saving estimates for the individual provisions. Because the values used in the formulas shown in the text are shown only to the second decimal place, while the spreadsheets supporting the text are not limited to two decimal places, the calculation using the presented formula will sometimes differ slightly from the totals presented in the tables. Program Cost Savings and Definitions of Affected Worker Populations This subsection presents OSHA's estimated cost savings from this proposal due to revoking the ancillary provisions in the new beryllium standards for shipyards and construction. The ancillary provisions contained in the new beryllium standards encompass the following nine employer duties, whose removal would each provide potential cost savings: (1) Assess employees' exposure to airborne beryllium, (2) establish beryllium regulated areas (and competent person in construction), (3) develop a written exposure control plan, (4) provide personal protective work clothing and equipment, (5) establish hygiene areas and practices, (6) implement housekeeping measures, (7) provide medical surveillance, (8) provide medical removal for employees who have developed CBD or been confirmed positive for beryllium sensitization, and (9) provide appropriate training. In addition, OSHA has estimated that employers would incur a modest cost to familiarize themselves with the changes to the ancillary provisions in the final rule as a result of this proposal. The affected worker population varies by each program element, as discussed in each subsection below. For example, in the 2016 FEA the regulated area program requirements triggered by the final PEL of 0.2 μg/m 3 would apply to a subset of shipyard workers: those for whom feasible engineering controls and work practices are not adequate. In this PEA, OSHA tracks the cost reductions in the same way and would remove those costs. Cost savings for each removed program requirement are aggregated by employment and by industry. For the most part, unit cost savings do not vary by industry, and any variations are specifically noted. Exposure Assessment Overview of Regulatory Requirements in the New Beryllium Standards Under the new beryllium standards, the employer must assess the exposure of each employee who is, or who may reasonably be expected to be, exposed to airborne beryllium under either a performance option or a scheduled monitoring option. The employer must reassess exposures whenever a change in the production, process, control equipment, personnel, or work practices may reasonably be expected to result in new or additional exposures at or above the action level, or when the employer has any reason to believe that new or additional exposures at or above the action level have occurred. Proposal Cost-Savings Estimates V-13 shows the unit cost savings for avoided initial monitoring and subsequent monitoring. These savings are identical to the unit costs identified in the 2016 FEA when adjusted to 2016 dollars. Table V-13—Exposure Monitoring Unit Cost Savings Item Initial monitoring Subsequent monitoring Industrial hygienist daily rate $2,642.59 $1,321.30 Total samples collected per day 1 6 6 Industrial hygienist cost per sample $440.43 $220.22 Laboratory cost to process sample $150.79 $150.79 Total direct cost per time weighted average sample 2 $591.22 $371.01 Total direct cost for two STEL samples 3 $1,182.44 $742.01 Worker productivity loss per sample 4 $4.03 $4.03 HR recordkeeping per sample (includes employee notification) 4 $6.04 $6.04 Total cost savings per time weighted average sample $601.28 $381.07 Total cost savings for two STEL samples $1,202.57 $762.14 Notes: 1 Assumes two workers sampled per day and three samples (one TWA sample and two STEL samples) taken per worker. 2 Includes the cost for one TWA sample plus laboratory cost to process sample. 3 Includes the cost for two short-term samples plus laboratory costs to process samples. 4 Includes the prorated cost for a single sample from a combination of one TWA and two short-term samples. Sources: OSHA, 2016 (Document ID 2044); BEA, 2016 (Document ID 1970); OSHA, Directorate of Standards and Guidance, Office of Regulatory Analysis. OSHA estimates that the total annualized exposure assessment cost savings would be $5,359,520 for all affected industries. 16 These cost savings, along with the cost savings for each affected NAICS industry, are shown in Table V-18 at the end of this program cost-savings section. 16 The exposure monitoring cost savings are calculated in the cost spreadsheet in the `Rule' tab in column BL through CY. Initial monitoring cost savings begin in column BT, additional monitoring cost savings begin in column CC, and periodic monitoring cost savings begin in column CI. The annualized cost savings are calculated at 7, 3 and 0 percent in columns CQ through CY. Beryllium Regulated Areas (and Competent Persons in Construction) Overview of Regulatory Requirements in the New Beryllium Standards The new beryllium standard for shipyards requires the employer to establish and maintain a regulated area wherever an employee's airborne exposure exceeds, or can reasonably be expected to exceed, either the time-weighted average (TWA) permissible exposure limit (PEL) or short term exposure limit (STEL). A regulated area can include temporary work areas where maintenance or non-routine tasks are performed. There is no regulated area requirement for construction. Employers with employees in regulated areas must comply with specific provisions that both limit employee exposure within the boundaries of th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2017-12871. Public record. Not legal advice.