Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations 39351 

becoming subject to, an involuntary 

petition for relief under title 11 of the 

United States Code; and 

(4) The partnership has sufficient 

assets, and reasonably anticipates 

having sufficient assets, to pay a 

potential imputed underpayment with 

respect to the partnership taxable year 

that may be determined under 

subchapter C of chapter 63 of the 

Internal Revenue Code as amended by 

the BBA; and 

(F) A representation, signed under 

penalties of perjury, that the individual 

signing the statement is duly authorized 

to make the election described in this 

paragraph (b) and that, to the best of the 

individual’s knowledge and belief, all of 

the information contained in the 

statement is true, correct, and complete. 

(iii) Notice of Administrative 

Proceeding. Upon receipt of the election 

described in this paragraph (b), the IRS 

will promptly mail a notice of 

administrative proceeding to the 

partnership and the partnership 

representative, as required under 

section 6231(a)(1) as amended by the 

BBA. Notwithstanding the preceding 

sentence, the IRS will not mail the 

notice of administrative proceeding 

before the date that is 30 days after 

receipt of the election described in 

paragraph (b) of this section. 

(c) Election for the purpose of filing 

an administrative adjustment request 

(AAR) under section 6227 as amended 

by the BBA—(1) In general. A 

partnership that has not been issued a 

notice of selection for examination as 

described in paragraph (b)(1) of this 

section may make an election with 

respect to a partnership return for an 

eligible taxable year for the purpose of 

filing an AAR under section 6227 as 

amended by the BBA. Once an election 

under this paragraph (c) is made, all of 

the amendments made by section 1101 

of the BBA, except section 6221(b) as 

added by the BBA, apply with respect 

to the partnership taxable year for 

which such election is made. 

(2) Time for making the election. No 

election under this paragraph (c) may be 

made before January 1, 2018. 

(3) Form and manner of making an 

election. An election under this 

paragraph (c) must be made in the 

manner prescribed by the IRS for that 

purpose in accordance with applicable 

regulations, forms and instructions, and 

other guidance issued by the IRS. 

(4) Effect of filing an AAR before 

January 1, 2018. Except in the case of 

an election made in accordance with 

paragraph (b) of this section, an AAR 

filed on behalf of a partnership before 

January 1, 2018, is deemed for purposes 

of paragraph (d)(2) of this section, to be 

an AAR filed under section 6227(c) 

(prior to amendment by the BBA) or an 

amended return of partnership income, 

as applicable. 

(d) Eligible taxable year—(1) In 

general. For purposes of this section, the 

term eligible taxable year means any 

partnership taxable year beginning after 

November 2, 2015 and before January 1, 

2018, except as provided in paragraph 

(d)(2) of this section. 

(2) Exception if AAR or amended 

return filed or deemed filed. 

Notwithstanding paragraph (d)(1) of this 

section, a partnership taxable year is not 

an eligible taxable year for purposes of 

this section if for the partnership taxable 

year— 

(i) The tax matters partner has filed an 

AAR under section 6227(c) (prior to 

amendment by the BBA), 

(ii) The partnership is deemed to have 

filed an AAR under section 6227(c) 

(prior to the amendment by the BBA) in 

accordance with paragraph (c)(4) of this 

section, or 

(iii) An amended return of 

partnership income has been filed or 

has been deemed to be filed under 

paragraph (c)(4) of this section. 

(e) Applicability date. These 

regulations are applicable to returns 

filed for partnership taxable years 

beginning after November 2, 2015 and 

before January 1, 2018. 

§ 301.9100–22T [Removed] 

■ Par. 5. Section 301.9100–22T is 

removed. 

Kirsten Wielobob, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: July 20, 2018. 

David J. Kautter, 

Assistant Secretary of the Treasury (Tax 

Policy). 

[FR Doc. 2018–17002 Filed 8–6–18; 4:15 pm] 

BILLING CODE 4830–01–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket ID OSHA–H005C–2006–0870] 

RIN 1218–AD19 

Limited Extension of Select 

Compliance Dates for Occupational 

Exposure to Beryllium in General 

Industry 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Final rule. 

SUMMARY: With this final rule, OSHA is 

extending the compliance date for 

certain ancillary requirements of the 

general industry beryllium standard to 

December 12, 2018. This standard 

protects workers from the hazards of 

beryllium exposure. OSHA has 

determined that this final rule will 

maintain essential safety and health 

protections for workers while OSHA 

prepares a Notice of Proposed 

Rulemaking (NPRM) to clarify specific 

provisions of the beryllium standard in 

accordance with a settlement agreement 

entered into with stakeholders. The 

December 12, 2018, compliance date 

affects only certain ancillary provisions, 

i.e., methods of compliance, beryllium 

work areas, regulated areas, personal 

protective clothing and equipment, 

hygiene areas and practices, 

housekeeping, communication of 

hazards, and recordkeeping. 

DATES: This rule is effective August 9, 

2018. 

ADDRESSES: For purposes of 28 U.S.C. 

2112(a), OSHA designates Edmund 

Baird, Acting Associate Solicitor of 

Labor for Occupational Safety and 

Health, to receive petitions for review of 

the final rule. Contact the Acting 

Associate Solicitor at the Office of the 

Solicitor, Room S–4004, U.S. 

Department of Labor, 200 Constitution 

Avenue NW, Washington, DC 20210; 

telephone: (202) 693–5445. 

Citation Method 

In the docket for the beryllium 

rulemaking, found at http://

www.regulations.gov, every submission 

was assigned a document identification 

(ID) number that consists of the docket 

number (OSHA–H005C–2006–0870) 

followed by an additional four-digit 

number. For example, the document ID 

number for OSHA’s Preliminary 

Economic Analysis and Initial 

Regulatory Flexibility Analysis is 

OSHA–H005C–2006–0870–0426. Some 

document ID numbers include one or 

more attachments, such as the National 

Institute for Occupational Safety and 

Health (NIOSH) prehearing submission 

(see Document ID OSHA–H005C–2006– 

0870–1671). 

When citing exhibits in the docket, 

OSHA includes the term ‘‘Document 

ID’’ followed by the last four digits of 

the document ID number, the 

attachment number or other attachment 

identifier, if applicable, and page 

numbers (designated ‘‘p.’’ or ‘‘Tr.’’ for 

pages from a hearing transcript). In a 

citation that contains two or more 

document ID numbers, the document ID 

numbers are separated by semicolons. 

FOR FURTHER INFORMATION CONTACT: 


sradovich on DSK3GMQ082PROD with RULES
39352 Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations 

1On May 7, 2018, OSHA published a Direct Final 

Rule (DFR) which became effective July 6, 2018. (83 

FR 19936; 83 FR 31045). The DFR clarified the 

definitions of ‘‘beryllium work area,’’ ‘‘emergency,’’ 

‘‘dermal contact,’’ and ‘‘beryllium contamination.’’ 

It also clarified OSHA’s intent with respect to 

provisions for disposal and recycling of materials 

that contain or are contaminated with beryllium, 

and with respect to provisions that the agency 

intends to apply only where skin can be exposed 

to materials containing at least 0.1 percent 

beryllium by weight. 

2The Materion settlement agreement can be 

viewed on regulations.gov (Document ID 2156): 

https://www.regulations.gov/document?D=OSHAH005C-2006-0870-2156. 3The OSH Act allows the Secretary of Labor to 

prescribe procedures for issuing notices instead of 

citations for ‘‘de minimis violations’’ that have no 

direct or immediate relationship to safety or health. 

29 U.S.C. 658(a). OSHA’s de minimis policy is set 

forth in its Field Operations Manual, available at 

https://www.osha.gov/OshDoc/Directive_pdf/CPL_

02-00-160.pdf. OSHA considers it a de minimis 

condition when an employer ‘‘complies with a 

proposed OSHA standard or amendment or a 

consensus standard rather than with the standard 

in effect at the time of the inspection and the 

employer’s action clearly provides equal or greater 

employee protection.’’ De minimis conditions do 

not result in citations or penalties. See 29 CFR 

1903.15(c) (‘‘Penalties shall not be proposed for de 

minimis violations which have no direct or 

immediate relationship to safety or health.’’); See 

Employer Rights and Responsibilities Following a 

Federal OSHA Inspection, https://www.osha.gov/ 

Publications/osha3000.pdf. 

Press inquiries: Mr. Frank Meilinger, 

OSHA Office of Communications; 

telephone: (202) 693–1999; email: 

meilinger.francis2@dol.gov. 

General information and technical 

inquiries: Mr. William Perry or Ms. 

Maureen Ruskin, Directorate of 

Standards and Guidance; telephone: 

(202) 693–1950; email: perry.bill@

dol.gov. 

Copies of this Federal Register 

document and news releases: Electronic 

copies of these documents are available 

at OSHA’s web page at https://

www.osha.gov. 

SUPPLEMENTARY INFORMATION: 

I. Explanation of Regulatory Action 

A. Introduction 

This final rule extends the 

compliance date to December 12, 2018, 

for certain ancillary provisions of the 

beryllium rule for general industry, 

specifically provisions related to 

methods of compliance, beryllium work 

areas, regulated areas, personal 

protective clothing and equipment, 

hygiene areas and practices, 

housekeeping, communication of 

hazards, and recordkeeping. This rule 

does not affect the new permissible 

exposure limits (PELs) for general 

industry, construction, and shipyards or 

the general industry provisions for 

exposure assessment, respiratory 

protection, medical surveillance, and 

medical removal, which OSHA began 

enforcing on May 11, 2018. This final 

rule also does not affect the March 11, 

2019, compliance date for the 

provisions on change rooms and 

showers in paragraph (i) (hygiene areas 

and practices) or the March 10, 2020, 

compliance date for implementation of 

the engineering controls required by 

paragraph (f) (methods of compliance). 

Finally, this rule does not affect the 

applicability of paragraph (a) (scope and 

application) or paragraph (b) 

(definitions). (Document ID 2156). 

OSHA has determined that this final 

rule will maintain essential safety and 

health protections for workers while 

OSHA prepares a Notice of Proposed 

Rulemaking (NPRM) to clarify specific 

provisions of the beryllium standard in 

accordance with a settlement agreement 

entered into with stakeholders. The 

revisions that OSHA plans to propose 

are designed to enhance worker 

protections by ensuring that the rule is 

well-understood and compliance is 

simple and straightforward. 

B. Summary of Economic Impact 

OSHA has determined that this final 

rule is not economically significant. The 

rule revises 29 CFR 1910.1024(o)(2) to 

extend the deadline for compliance with 

certain provisions of the general 

industry beryllium standard until 

December 12, 2018. OSHA’s final 

economic analysis shows that this 

compliance date extension will result in 

a net cost savings for the affected 

industries. At a 3 percent discount rate 

over 10 years, the extension will result 

in net annual cost savings of $0.76 

million per year; at a discount rate of 7 

percent over 10 years, the net annual 

cost savings is $1.73 million per year. 

When the Department uses a perpetual 

time horizon, the annualized cost 

savings of the final rule is $1.65 million 

with a 7 percent discount rate. The 

detailed final economic analysis, which 

includes more information on OSHA’s 

cost/cost savings estimates for this final 

rule, can be found in the ‘‘Agency 

Determinations’’ section of this 

preamble. The rule is also an Executive 

Order (E.O.) 13771 deregulatory action. 

C. Regulatory Background 

OSHA published a Notice of Proposed 

Rulemaking (NPRM) for occupational 

exposure to beryllium in the Federal 

Register on August 7, 2015. (80 FR 

47566). In the NPRM, the agency made 

a preliminary determination that 

employees exposed to beryllium and 

beryllium compounds at the previous 

PEL faced a significant risk to their 

health and that promulgating the 

NPRM’s proposed standard would 

substantially reduce that risk. The 

NPRM invited interested stakeholders to 

submit comments on a variety of issues. 

OSHA held a public hearing in 

Washington, DC, on March 21 and 22, 

2016. The agency heard testimony from 

a number of organizations, including 

public health groups, industry 

representatives, and labor unions. 

Following the hearing, participants had 

an opportunity to submit additional 

evidence and data, as well as final 

briefs, arguments, and summations 

(Document ID 1756, Tr. 326). 

On January 9, 2017, after considering 

the entire record, OSHA issued a final 

rule with separate standards for general 

industry, shipyards, and construction, 

in order to tailor requirements to the 

circumstances found in these sectors. 

See 82 FR 2470. The general industry 

standard became effective on March 10, 

2017, and the compliance date for most 

of the standard’s provisions was March 

12, 2018. However, on March 2, 2018, 

OSHA issued a memorandum stating 

that no provisions of the general 

industry standard would be enforced 

until May 11, 2018.1 Two subsequent 

enforcement delays followed—the first, 

on May 9, 2018, delayed enforcement 

until June 25, 2018, of some of the 

general industry standard’s ancillary 

provisions (related to methods of 

compliance, beryllium work areas, 

regulated areas, personal protective 

clothing and equipment, hygiene areas 

and practices, housekeeping, 

communication of hazards, and 

recordkeeping). The second delay, on 

June 21, 2018, postponed enforcement 

of those provisions until August 9, 2018. 

Following promulgation of the final 

rule in January 2017, several general 

industry employers, including Materion 

Corporation (‘‘Materion’’), challenged 

the rule in federal court. As part of a 

settlement agreement with Materion,2

OSHA is planning to propose revisions 

to certain provisions in the general 

industry standard and to rely on its de 

minimis policy while the rulemaking is 

pending so that employers may comply 

with the proposed revisions to the 

standard without risk of a citation.3 The 

revisions OSHA plans to propose under 

the settlement agreement are generally 

designed to clarify the standard in 

response to stakeholder questions or to 

simplify compliance, while in all cases 

maintaining a high degree of protection 

from the adverse health effects of 

beryllium exposure (Document ID 

2156). 

D. Summary of Public Comments and 

Explanation of Final Action 

On June 1, 2018, OSHA published a 

proposed rule to extend the compliance 


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Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations 39353 

date to December 12, 2018 for certain 

ancillary requirements of the general 

industry beryllium standard. (83 FR 

25536). OSHA explained that the 

proposed extension would give the 

agency time to prepare and publish a 

planned NPRM to amend the general 

industry standard before employers 

would be required to comply with 

certain ancillary provisions affected by 

that NPRM. That in turn would allow 

employers to comply with the proposed 

provisions without risk of a citation 

until any such changes are finalized 

(Document ID 2156). 

In the proposal, OSHA requested 

comments from the public on both the 

duration and scope of the proposed 

compliance date extension (83 FR 

25539). OSHA asked commenters to 

include a rationale for any concerns 

they had with the proposal, as well as 

for any alternatives they suggested. 

OSHA also requested comments on the 

‘‘Agency Determinations’’ section of the 

proposal, including the preliminary 

economic analysis and other regulatory 

effects on employers and workers. 

OSHA received ten comments in 

response to the proposal (Document IDs 

2159–2168). The comments generally 

focused on three issues arising from the 

proposed extension: (1) Whether to 

extend the compliance date, (2) the 

scope of any extension, and (3) the 

appropriate duration of any extension. 

Below we examine these three issues, in 

that order—by summarizing the 

comments and then explaining the 

agency’s determinations based on the 

record as a whole. We then address two 

miscellaneous comments. 

1. Extension of the Compliance Date for 

Certain Ancillary Provisions in the 

General Industry Standard 

Five commenters supported the 

agency’s proposed extension of the 

compliance date for ancillary provisions 

affected by OSHA’s forthcoming, 

substantive NPRM. (See Document ID 

2161; 2165–2168). For example, Century 

Aluminum Company stated that ‘‘the 

affected portions of the Standard should 

be delayed to allow OSHA time to 

prepare and publish the substantive 

proposed rule so that employers do not 

take unnecessary and costly measures.’’ 

(Document ID 2165, p.1). It added that 

the proposed delay would also limit 

confusion among employers and other 

stakeholders. (Document ID 2165, p.1). 

Materion similarly observed that the 

proposed extension would address the 

concern that beginning enforcement of 

provisions affected by the NPRM could 

result in employer confusion or 

improper implementation of the 

relevant provisions of the rule. 

(Document ID 2161, p.2). Airborn Inc., 

Mead Metals, Inc., and the National 

Association of Manufacturers (NAM) 

supported Materion’s comments and 

registered their own support for the 

extension. (Document ID 2166, p.1; 

2167, p.1; 2168, pp.1–2). These three 

stakeholders agreed that an extension is 

‘‘necessary to give OSHA enough time 

to draft and publish’’ the forthcoming, 

substantive NPRM. (Document ID 2166, 

p.1; 2167, p.1; 2168, p.1). NAM added 

that the proposed extension was 

‘‘another positive step toward a more 

effective general industry standard for 

the benefit of workers.’’ (Document ID 

2168, p.2). NAM also expressed its 

appreciation for ‘‘OSHA’s recognition of 

employers’ reasonable and practical 

concerns regarding compliance in 

anticipation of [the forthcoming, 

substantive NPRM].’’ (Document ID 

2168, p.2). 

Four other commenters, the United 

Steelworkers (USW), Public Citizen, 

UNITE HERE! International Union 

(UNITE HERE), and the National 

Employment Law Project (NELP), 

opposed the proposed extension. 

(Document ID 2160; 2162–2164). These 

commenters argued that the extension 

would be unnecessary and unjustified, 

and would delay the implementation of 

important protections for workers. (See, 

e.g., Document ID 2160, pp. 1–2). For 

example, Public Citizen maintained that 

‘‘[e]xpeditious implementation of the 

ancillary provisions in general industry 

is absolutely necessary to enhance the 

benefits of the newly adopted PEL, 

ultimately providing another level of 

protection in occupational settings.’’ 

(Document ID 2162, p.3). It argued that 

delaying implementation would allow 

employers to continue to expose 

workers to unsafe levels of beryllium, 

ensuring ‘‘the occurrence of even more 

cases of beryllium sensitization, chronic 

beryllium disease, . . . . lung cancer,’’ 

and other adverse health effects. 

(Document ID 2162, p.3). 

OSHA understands Public Citizen’s 

concerns; the agency’s goal is to protect 

the health and safety of workers. That is 

why OSHA has narrowly tailored the 

scope of the compliance date extension 

to cover only provisions that will be 

affected by the forthcoming, substantive 

NPRM. OSHA is enforcing, and will 

continue to enforce, many of the 

provisions that provide critical 

protection to general industry 

employees. This final rule does not 

affect critical worker protections 

afforded by enforcement of the revised 

lower PEL, the new short-term exposure 

limit (STEL), and requirements for 

exposure assessment, respiratory 

protection, medical surveillance, and 

medical removal. 

Moreover, in adopting this final rule, 

OSHA recognizes that the goal of worker 

protection can be frustrated where 

employers do not clearly understand 

OSHA’s requirements or how to 

implement them. OSHA appreciates the 

concerns of those stakeholders who note 

that, until OSHA releases its planned 

NPRM, employers may lack clarity 

regarding how to implement and 

comply with the beryllium standard. 

OSHA has determined that it would be 

undesirable, for both the agency and 

those it regulates, to begin enforcement 

of certain ancillary provisions of the 

standard that will likely be affected by 

the upcoming rulemaking—a scenario 

that could result in employers taking 

unnecessary measures to comply with 

provisions to which OSHA intends to 

propose clarifications. 

NELP and Public Citizen also asserted 

that the proposed compliance-date 

extension conflicted with OSHA’s 

finding that a comprehensive standard 

is needed to protect workers exposed to 

beryllium. (Document ID 2162; 2163). 

OSHA disagrees with that assertion that 

this extension is in conflict with 

OSHA’s findings. OSHA believes that a 

comprehensive standard is critically 

important for the protection of workers 

exposed to beryllium in general 

industry settings. However, the benefits 

of a comprehensive standard may not be 

fully realized where employers do not 

clearly understand, and have trouble 

implementing, its requirements. OSHA 

finds that this limited, short-term 

extension of the compliance date for 

certain ancillary requirements of the 

standard will give the agency the time 

necessary to ensure that employers have 

clear direction on how to protect 

workers exposed to beryllium. 

Additionally, as noted previously, 

OSHA will continue to maintain 

essential safety and health protections 

for workers through ongoing 

enforcement of many of the beryllium 

standard’s key provisions. Enforcement 

of other OSHA standards, such as the 

Hazard Communication Standard (29 

CFR 1910.1200) and Access to 

Employee Exposure and Medical 

Records (29 CFR 1910.1020) will also 

provide other important protections for 

workers in general industry. In 

particular, employers are, and will 

remain, obligated to label hazardous 

chemicals containing beryllium, ensure 

that safety data sheets are readily 

available, and train workers on the 

hazards of beryllium in accordance with 

the Hazard Communication Standard. 

OSHA encourages employers to review 

their hazard communication programs, 


sradovich on DSK3GMQ082PROD with RULES
39354 Federal Register / Vol. 83, No. 154 / Thursday, August 9, 2018 / Rules and Regulations 

4Materion commented that the proposed 

extension of compliance dates did not cover all of 

the provisions that could be affected by the 

forthcoming, substantive NPRM. (Document ID 

2161, p.1). Specifically, Materion noted that the 

NPRM could also affect the requirements for 

medical surveillance and change rooms. (Document 

ID 2161, p.1 (citing Document ID 2156, Appendix 

B)). However, Materion did not ask OSHA to make 

any changes to the scope of the extension based on 

its comment. Rather, its comment appeared to serve 

as a recommendation to other employers to ‘‘take 

careful note of the proposed changes identified in 

the settlement agreement, and to take them into 

account when implementing their compliance 

programs for medical surveillance and change 

rooms.’’ (Document ID 2161, p.1). OSHA notes that, 

until the NPRM is published, employers may 

comply with the medical surveillance provisions as 

clarified by the definitions of ‘‘CBD diagnostic 

center,’’ ‘‘chronic beryllium disease,’’ and 

‘‘confirmed positive’’ that OSHA has agreed to 

propose, which are available in the docket 

(Document ID 2156) and in OSHA’s interim 

enforcement guidance (https://www.osha.gov/lawsregs/standardinterpretations/2018-05-09). 

5OSHA recognizes that three paragraphs, i.e., the 

paragraphs related to change rooms and showers in 

paragraph (i) and the requirement in paragraph 

(f)(2) for the implementation for engineering 

controls, have different compliance dates than those 

set for other paragraphs in paragraphs (i) and (f). 

However, this is a function of the way the 

compliance date provisions were structured in the 

January 9, 2017, final rule, and those dates were set 

based on specific findings made by the agency in 

that rulemaking. The agency believes employers 

have had ample notice of when the agency intends 

to begin enforcement of these particular provisions. 

employee training, and other hazard 

communication practices (such as 

workplace labeling) to ensure continued 

compliance with the Hazard 

Communication Standard. 

USW and UNITE HERE also 

questioned OSHA’s justification for the 

proposed extension of compliance 

dates. USW objected to OSHA’s 

preliminary determination that 

beginning enforcement of the ancillary 

provisions identified in the proposal 

before publication of the substantive 

NPRM could result in employer 

confusion or improper implementation 

of the relevant provisions of the rule. 

(Document ID 2160, p.2). USW argued 

that employers could avoid confusion 

by complying with the revisions that are 

identified in the settlement agreement. 

(Document ID 2160, p.2). In addition, 

USW and UNITE HERE claimed that 

OSHA proposed this extension to 

‘‘demonstrate that it has taken 

deregulatory action.’’ (Document ID 

2160, p.2; 2164). 

OSHA does not agree with the USW 

that this extension of compliance dates 

is unnecessary because employers can 

rely on the regulatory revisions 

identified in the settlement agreement 

before publication of the substantive 

NPRM. The settlement agreement 

contains only a redlined version of the 

relevant regulatory text. It does not 

include a full summary and explanation 

of the revisions, in which OSHA 

explains the meaning of the proposed 

revisions to the regulatory text and, in 

some cases, provides further 

information and examples to aid 

compliance. For example, OSHA is 

planning to propose changes to 

paragraph (j)(3), to address reuse of 

beryllium-containing materials in 

addition to disposal and recycling, 

because in some cases materials may be 

directly reused without being recycled. 

In the summary and explanation for the 

proposed rule, OSHA will explain the 

intended meaning of the term ‘‘reuse’’ 

and the circumstances under which the 

cleaning and bagging requirements 

included in paragraph (j)(3) would 

apply to the reuse of materials that 

contain beryllium. 

OSHA also disagrees with USW and 

UNITE HERE’s characterization of the 

rationale for this extension. Although 

OSHA noted in the proposal that the 

proposed extension was ‘‘expected to be 

an . . . E.O.[ ] 13771 deregulatory 

action,’’ it included that statement to 

carry out its obligations under E.O. 

13771, not to justify the rulemaking. As 

stated above, the reason for this 

rulemaking is to provide OSHA 

sufficient time to promulgate proposed 

clarifications to the general industry 

standard, so that employers can easily 

understand and properly implement the 

standard in order to keep workers 

healthy and safe. 

Based on the record as a whole, 

OSHA finds the arguments in favor of 

the proposed extension of compliance 

dates to be more persuasive than those 

against the proposal. Therefore, the 

agency has decided to adopt the 

proposed extension of compliance dates 

to allow time for the preparation and 

publication of the planned, substantive 

NPRM. 

2. Scope of the Extension 

Having determined that an extension 

of the compliance date for certain 

ancillary provisions in the beryllium 

standard for general industry is 

appropriate, OSHA next addresses 

comments regarding which provisions 

will be included in the extension. In the 

NPRM, OSHA proposed extending the 

compliance date for the following 

provisions: Beryllium work areas and 

regulated areas (paragraph (e)), written 

exposure control plans (paragraph 

(f)(1)), personal protective clothing and 

equipment (paragraph (h)), hygiene 

areas and practices (paragraph (i) except 

for change rooms and showers), 

housekeeping (paragraph (j)), 

communication of hazards (paragraph 

(m)), and recordkeeping (paragraph (n)). 

OSHA requested comments on the 

proposed scope of the extension. 

Several commenters objected to the 

scope of the proposed compliance-date 

extension. For example, USW asserted 

that the underlying settlement 

agreement only ‘‘affects beryllium 

products whose content is less [than] 

1% by weight, but which does not 

generate exposures above the PEL.’’ 

(Document ID 2160, p. 1). Therefore, 

USW argued, ‘‘[t]here is no basis for 

staying ancillary provisions of the 

standard in workplaces where 

exposures to beryllium are above the 

PEL.’’ (Document ID 2160, pp. 1–2). 

UNITE HERE also asserted that the 

proposed extension of compliance dates 

should be limited to provisions that 

OSHA intends to change. (Document ID 

2164). It further argued that ‘‘there is no 

justification to delay any provision of 

the standard to the extent that it would 

regulate exposures above the PEL.’’ 

(Document ID 2164). NELP similarly 

commented that the proposal was 

‘‘broad and needlessly pushes back 

compliance dates of important worker 

protections to a highly toxic substance.’’ 

(Document ID 2163, p.1). 

Century Aluminum, however, argued 

that OSHA should not extend the 

compliance date for only certain 

portions of affected paragraphs, as 

proposed by some of the other 

commenters. Beyond making it clear 

that the compliance dates for 

engineering and work practice controls 

(March 10, 2020) and change rooms and 

showers (March 11, 2019) remain 

unchanged, Century Aluminum asserted 

that differentiating by portions of 

affected paragraphs would lead to 

substantial confusion among employers 

and other stakeholders.4

OSHA agrees with Century 

Aluminum’s assessment that an 

extension of compliance dates that 

differentiated between individual 

subparagraphs of the affected ancillary 

provisions, as suggested by USW and 

UNITE HERE, would create substantial 

confusion.5 In addition, OSHA does not 

find that the extension should be 

limited to only those situations where 

beryllium exposures do not exceed the 

PEL. Contrary to USW’s assertion, the 

substantive changes OSHA intends to 

propose to the beryllium standard for 

general industry do apply to processes 

that generate exposures above the PEL, 

and they are not limited to products 

whose beryllium content is less than 

one percent by weight. For example, 

changes to provisions for methods of 

compliance, personal protective 

clothing and equipment, housekeeping, 

and hygiene areas and practices involve 

all beryllium-containing materials 

where exposures may occur. Therefore, 


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6Although not suggested by Century Aluminum, 

OSHA also notes that an indefinite extension of 

compliance deadlines, i.e., a compliance date 

determined by the date the substantive rulemaking 

is completed, is likely to result in greater, not less, 

confusion. 

OSHA’s rationale for the extension of 

compliance dates applies to all general 

industry workplaces within the scope of 

the beryllium standard, including those 

where beryllium exposures may exceed 

the PEL. Finally, as to UNITE HERE’s 

comment that the extension should be 

limited to provisions that OSHA intends 

to change in the final standard, OSHA 

has reexamined each of the provisions 

covered by the proposed extension and 

confirmed that the final extension of 

compliance dates applies only to 

paragraphs affected by the upcoming, 

substantive NPRM. 

After considering these comments, 

OSHA has decided to retain the scope 

of the extension as proposed. The 

extension of compliance dates, 

therefore, will apply to the following 

provisions: Beryllium work areas and 

regulated areas (paragraph (e)), written 

exposure control plans (paragraph 

(f)(1)), personal protective clothing and 

equipment (paragraph (h)), hygiene 

areas and practices (paragraph (i) except 

for change rooms and showers), 

housekeeping (paragraph (j)), 

communication of hazards (paragraph 

(m)), and recordkeeping (paragraph (n)). 

3. Duration of the Extension 

Having determined that it is 

appropriate to extend the compliance 

date for certain ancillary provisions in 

the general industry beryllium standard, 

the remaining issue is the duration of 

the extension. In the NPRM, OSHA 

proposed extending the relevant 

compliance date until December 12, 

2018. OSHA requested comments on the 

duration of the extension. 

Very few commenters expressly 

opined on the duration of the proposed 

compliance date extension, and those 

who did disagreed as to whether a 

longer or shorter extension was 

appropriate. For example, Century 

Aluminum asked OSHA to consider 

extending the relevant compliance date 

for an additional three months, to March 

11, 2019. (Document ID 2165, pp. 1–2). 

It argued that ‘‘[a]n additional three 

months would give OSHA the time to 

receive comments on the substantive 

proposed rule and publish a final rule.’’ 

(Document ID 2165, p.1). It further 

stated that a longer extension would 

prevent confusion and unnecessary 

costs: 

A delay until the substantive rulemaking is 

completed would also prevent a situation 

where employers comply with the de 

minimis policy, only to have to change 

practices if the final rule does not adopt all 

of the revisions in the proposed rule. The 

costs of such a midstream about-face could 

be significant. Moreover, aligning the 

compliance date with March 11, 2019, which 

is the compliance date for the change rooms 

and showers required by paragraph (i) of the 

Standard, would simplify compliance efforts 

and limit confusion among affected entities. 

Finally, the additional few months would 

allow state plans time to consider whether to 

adopt any revisions OSHA makes to the 

Standard without causing significant 

disruption in their respective states. 

(Document ID 2165, p.2). USW and 

UNITE HERE, on the other hand, 

recommended that the proposed 

extension continue until thirty days 

after the substantive NPRM is issued or 

December 12, 2018, whichever comes 

first. USW maintained that the 

potentially shorter extension would 

allow time for employers to conform 

their practices to the content of the 

NPRM, while providing workers with 

necessary protections as soon as 

possible. 

After considering these comments, 

OSHA is not persuaded that it should 

alter the duration of the proposed 

extension. Although OSHA appreciates 

Century Aluminum’s points, the agency 

must balance arguments in favor of a 

longer extension against the concerns 

raised by commenters, such as USW, 

that an unnecessarily lengthy extension 

could deny general industry workers 

certain protections afforded to them 

under the affected ancillary provisions. 

Moreover, although OSHA understands 

Century Aluminum’s concern about the 

potential increase in costs that could 

result if the provisions adopted as a 

result of the planned substantive 

rulemaking do not mirror those 

proposed in the substantive NPRM, the 

agency cannot, at this time, estimate 

with much certainty when any final rule 

will be promulgated.6 OSHA also rejects 

USW and UNITE HERE’s call for 

compliance dates based on the 

publication of the substantive NPRM; a 

timeline based on a currently uncertain 

date would be more difficult and 

confusing for employers and workers. 

The agency finds that the proposed 

compliance date of December 12, 2018, 

appropriately balances the concerns 

raised by stakeholders, will provide the 

agency sufficient time to draft and 

publish the NPRM, and will give 

employers sufficient time to comply. 

Therefore, OSHA has decided to extend 

the compliance date for the identified 

provisions until December 12, 2018, as 

proposed. 

4. Miscellaneous Comments 

OSHA also received two comments 

that did not directly relate to the 

proposed extension of compliance 

dates. The first, from Materion, is 

related to a statement the agency made 

in the proposal. (Document ID 2161, 

p.2). Specifically, OSHA stated that it 

‘‘expects to publish the planned, 

substantive NPRM well in advance of 

the compliance dates’’ for change rooms 

and showers (March 11, 2019) and 

engineering controls (March 10, 2020). 

Materion maintained that ‘‘it is 

reasonable and necessary for OSHA to 

not only publish the NPRM, but 

complete its final changes to the General 

Industry Standard for beryllium well 

ahead of March 11, 2019, since the 

revisions OSHA plans to propose are 

primarily clarifying or simplifying in 

nature . . . and designed to enhance 

worker protections by ensuring that the 

rule is well-understood and compliance 

is simple and straightforward.’’ 

(Document ID 2161, p.2 (citing 

Document ID 2156)). Materion further 

commented that ‘‘[e]mployees will 

benefit most by completion of all 

changes as soon as possible, and 

certainly before early 2019.’’ (Document 

ID 2161, p.2). 

OSHA understands Materion’s 

concern, and agrees that prompt 

finalization of any substantive revisions 

to the general industry standard for 

beryllium would be ideal. Therefore, the 

agency will proceed with the 

substantive rulemaking as expeditiously 

as possible. However, OSHA will also 

need to ensure that stakeholders have a 

meaningful opportunity to comment on 

the forthcoming proposal and that the 

agency has adequate time to consider 

and address stakeholder comments. 

Consequently, at this time the agency 

does not have a specific target date for 

conclusion of the substantive 

rulemaking. 

The second comment that was not 

directly related to the proposed 

extension of compliance dates was 

submitted by an anonymous 

commenter, who indicated strong 

support for the beryllium rule generally. 

(Document ID 2159). The commenter 

submitted summary statistics on 

relationships between beryllium 

exposure and the prevalence of 

beryllium sensitization and chronic 

beryllium disease in a cohort at a 

beryllium precision machining facility 

and stated that the results support the 

control of workplace beryllium 

exposures. However, this commenter 

did not address how the data or 

conclusions provided related to the 

proposed extension of compliance dates 


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7Cody Rice, U.S. Environmental Protection 

Agency, ‘‘Wage Rates for Economic Analyses of the 

Toxics Release Inventory Program,’’ June 10, 2002 

(document ID 2025). This analysis itself was based 

on a survey of several large chemical manufacturing 

plants: Heiden Associates, Final Report: A Study of 

Industry Compliance Costs Under the Final 

Comprehensive Assessment Information Rule, 

Prepared for the Chemical Manufacturers 

Association, December 14, 1989. 

8 Grant Thornton LLP, 2017 Government 

Contractor Survey, https://www.grantthornton.com/ 

-/media/content-page-files/public-sector/pdfs/ 

surveys/2018/2017-government-contractor-survey. 

According to Grant Thornton’s 2017 Government 

Contractor Survey, on-site rates are generally higher 

than off-site rates, because the on-site overhead 

pool includes the facility-related expenses incurred 

by the company to house the employee, while no 

such expenses are incurred or allocated to the labor 

costs of direct charging personnel who work at the 

customer site. 

9OSHA used an overhead rate of 17 percent on 

base wages in a sensitivity analysis in the final 

economic analysis (OSHA–2010–0034–4247, p. VII– 

65) in support of the March 25, 2016, final 

respirable crystalline silica standards (81 FR 16286) 

and in the preliminary economic analysis in 

support of the June 27, 2017, beryllium proposal for 

the construction and shipyard sectors (82 FR 

29201). 

or otherwise offer any comments on the 

specific terms of the proposed 

extension. To the extent that this 

commenter intended to argue that the 

proposed extension of compliance dates 

would have a detrimental impact on 

worker health, that comment is 

addressed above in response to similar 

concerns expressed by USW, Public 

Citizen, UNITE HERE, and NELP. 

II. Agency Determinations 

A. Final Economic Analysis and 

Regulatory Flexibility Certification 

Executive Orders 12866 and 13563, 

the Regulatory Flexibility Act (5 U.S.C. 

601–612), and the Unfunded Mandates 

Reform Act (UMRA) (2 U.S.C. 1532(a)) 

require that OSHA estimate the benefits, 

costs, and net benefits of regulations, 

and analyze the effects of certain rules 

that OSHA promulgates. Executive 

Order 13563 emphasizes the importance 

of quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. 

This final rule is not an 

‘‘economically significant regulatory 

action’’ under E.O. 12866 or UMRA, or 

a ‘‘major rule’’ under the Congressional 

Review Act (5 U.S.C. 801 et seq.). 

Neither the benefits nor the costs of this 

final rule would exceed $100 million in 

any given year. This final rule to extend 

the compliance date for certain ancillary 

provisions in the beryllium standard 

would result in cost savings. Cost 

savings arise in this context because a 

delay in incurred costs for employers 

would allow them to invest the funds 

(and earn an expected return at the 

going interest rate) that would otherwise 

have been spent to comply with the 

beryllium standard. OSHA did not 

receive any comments on the 

preliminary economic analysis OSHA 

prepared for the proposal. 

At a discount rate of 3 percent, this 

final compliance-date extension yields 

annualized cost savings of $0.76 million 

per year for 10 years. At a discount rate 

of 7 percent, this final rule yields an 

annualized cost savings of $1.73 million 

per year for 10 years. When the 

Department uses a perpetual time 

horizon to allow for cost comparisons 

under E.O. 13771 (82 FR 9339, Jan. 30, 

2017), the annualized cost savings of 

this final compliance date extension are 

$1.65 million at a discount rate of 7 

percent. 

1. Changes to the Baseline: Updating to 

2017 Dollars and Removing 

Familiarization Costs; Discussion of 

Overhead Costs 

More than one year has elapsed since 

promulgation of the beryllium standards 

on January 9, 2017, so OSHA has 

updated the projected costs for general 

industry contained in the final 

economic analysis that accompanied the 

rule from 2015 to 2017 dollars, using the 

latest Occupational Employment 

Statistics (OES) wage data (for 2016) and 

inflating them to 2017 dollars. 

Additionally, although familiarization 

costs were included in the cost 

estimates developed in the 2017 

economic analysis, OSHA expects that 

those costs have already been incurred 

by affected employers, and is excluding 

them from its analysis of the cost 

savings associated with this extension of 

compliance dates. Thus, baseline costs 

for this final economic analysis (FEA) 

are the projected costs from the 2017 

economic analysis, updated to 2017 

dollars, less familiarization costs. 

OSHA notes that it did not include an 

overhead labor cost in the 2017 analysis, 

and has not accounted for such costs in 

this FEA. There is not one broadly 

accepted overhead rate, and 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 cost 

implications of any specific regulation. 

There are several ways to look at the 

cost elements that fit the definition of 

overhead, and there is a range of 

overhead estimates currently used 

within the federal government—for 

example, the Environmental Protection 

Agency has used 17 percent,7 and 

government contractors have reportedly 

used 50 percent for on-site (i.e., 

company site) overhead.8 Some 

overhead costs, such as advertising and 

marketing, may be more closely 

correlated with output than with labor. 

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 

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. 

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, the cost savings of this final rule 

would increase to approximately $0.82 

million per year, at a discount rate of 3 

percent, or to approximately $1.87 

million per year, at a discount rate of 7 

percent.9 The addition of 17-percent 

overhead on base wages would therefore 

increase cost savings by approximately 

8 percent above the primary estimate at 

either discount rate. 

2. Changes to the Standard: Nine-Month 

Extension of the Compliance Date for 

Some Ancillary Provisions 

The general industry beryllium 

standard went into effect on May 20, 

2017, with most compliance obligations 

beginning on March 12, 2018. OSHA is 

finalizing the extension of the 

compliance date for specific provisions 

until December 12, 2018. The 

compliance date for the updated PELs, 

as well as for the exposure assessment, 

respiratory protection, medical 

surveillance, and medical removal 

requirements, and for provisions for 

which the standard already establishes 

compliance dates in 2019 and 2020, do 

not change as a result of this rule. The 

applicability of the scope and 

application paragraph and the 

definitions also do not change as a 

result of this rule, except that employers 

may comply with the definitions of 

‘‘CBD diagnostic center,’’ ‘‘chronic 

beryllium disease,’’ and ‘‘confirmed 

positive’’ that will be proposed in the 

later substantive rulemaking NPRM 

(Document ID 2156). The purpose of 

this final rule is to provide time for 

OSHA to issue a planned NPRM that 

will affect the parts of the standard that 

are covered by this compliance-date 

extension before that compliance date is 

reached, so that OSHA may rely on its 

de minimis policy and employers may 


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10Note that the labor costs associated with time 

spent changing clothes are generally triggered by 

wearing personal protective equipment, as required 

by paragraph (h) of the beryllium standard. OSHA 

is extending the compliance date for paragraph (h). 

Thus, employers will not incur the labor costs 

associated with changing time for personal 

protective equipment until December 12, 2018, so 

OSHA is generally accounting for those cost savings 

in this FEA. OSHA has not accounted for any cost 

savings related to the use of head covers, however. 

Head covers may be used to prevent contamination 

of employees’ hair, potentially precluding the need 

for showers under paragraph (i)(3) of the standard. 

Because this final rule does not extend the 

compliance date for showers, OSHA has not 

accounted for head covers for purposes of 

estimating the cost savings associated with this 

final rule. 

11OSHA investigated whether the projected cost 

savings would exceed 1 percent of revenues or 5 

percent of profits for small entities and very small 

entities for every industry. To determine if this was 

the case, OSHA returned to its original regulatory 

flexibility analysis (2017) for small entities and very 

small entities. OSHA found that the cost savings of 

this final rule are such a small percentage of 

revenues and profits for every affected industry that 

OSHA’s criteria would not be exceeded for any 

industry. 

comply with the proposed provisions 

without risk of a citation. 

OSHA estimated the cost savings of 

the final rule relative to baseline costs, 

where baseline costs reflect the costs of 

compliance without the final rule’s 

changes to the compliance date. OSHA 

calculated the cost savings by lagging 

the first-year costs for the affected 

provisions by nine months and then 

calculating the present value of the 

delayed costs over the 10 years 

following the new compliance date. 

Annualizing the present value of cost 

savings over ten years, the result is an 

annualized cost savings of $0.76 million 

per year at a discount rate of 3 percent, 

or $1.73 million per year at a discount 

rate of 7 percent. When the Department 

uses a perpetual time horizon to allow 

for cost comparisons under E.O. 13771, 

the annualized cost savings of this 

compliance date extension is $1.65 

million at a discount rate of 7 percent. 

The undiscounted cost savings by 

provision and year are presented below 

in Table 1. As shown in Table 1, and 

described elsewhere in this final rule, 

the cost savings described in this FEA 

reflect savings only for provisions 

covered by the compliance date 

extension. OSHA estimated no cost 

savings for the PELs, exposure 

assessment, respiratory protection, 

medical surveillance, or medical 

removal provisions (as they are not 

covered by the extension), or for any 

provisions for which the rule already 

establishes compliance dates in 2019 

(change rooms/showers) or 2020 

(engineering controls).10 The cost 

savings by year and discount rate are 

shown below in Table 2. 

3. Economic and Technological 

Feasibility 

In the final economic analysis for the 

2017 general industry beryllium 

standard, OSHA concluded that the rule 

was technologically feasible. OSHA has 

determined that this final rule is also 

technologically feasible because it does 

not change any of the rule’s substantive 

requirements, and, if adopted, would 

simply give employers more time to 

comply with some of the rule’s ancillary 

requirements. Furthermore, OSHA 

previously concluded that the beryllium 

standard was economically feasible. As 

this final rule does not impose any new 

substantive requirements, and results in 

cost savings, OSHA has concluded that 

the final rule is also economically 

feasible. 

4. Effects on Benefits 

The planned rulemaking to revise the 

general industry beryllium standard is 

intended to be responsive to questions 

and concerns expressed by stakeholders 

regarding ancillary provisions of the 

rule. Safety and health programs can be 

ineffective if employers and other 

stakeholders are unclear about OSHA 

requirements. Hence, by addressing 

stakeholder questions and concerns, the 

planned rulemaking will make it more 

likely that the regulated community will 

realize the full benefits of the rule, as 

estimated in the 2017 final economic 

analysis. Although it is not possible to 

quantify the effect of stakeholder 

uncertainty on the projected benefits of 

the rule, OSHA believes that the shortterm loss of benefits associated with this 

extension of initial compliance dates 

will be more than offset in the long term 

by the benefits resulting from the 

agency’s effort to clarify the rule. OSHA 

has determined that this final rule will 

maintain essential safety and health 

protections for workers. 

5. Certification of No Significant Impact 

on a Substantial Number of Small 

Entities 

This final rule will result in cost 

savings for affected employers, and 

those savings fall below levels that 

could be said to have a significant 

positive economic impact on a 

substantial number of small entities.11

Therefore, OSHA certifies that this final 

rule does not have a significant impact 

on a substantial number of small 

entities. 

BILLING CODE 4510–26–P 


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BILLING CODE 4510–26–C 


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TABLE 2—COST SAVINGS DUE TO COMPLIANCE DATE EXTENSION

Year t Undiscounted 

costs by year 

Discounted 

costs—3% 

Discounted 

costs—7% 

Baseline 

1 ....................................................................................................................... 1.00 $53,861,070 $52,292,301 $50,337,449 

2 ....................................................................................................................... 2.00 31,965,865 30,130,893 27,920,224 

3 ....................................................................................................................... 3.00 31,965,865 29,253,295 26,093,668 

4 ....................................................................................................................... 4.00 31,965,865 28,401,257 24,386,605 

5 ....................................................................................................................... 5.00 31,965,865 27,574,036 22,791,220 

6 ....................................................................................................................... 6.00 31,965,865 26,770,909 21,300,205 

7 ....................................................................................................................... 7.00 31,965,865 25,991,173 19,906,734 

8 ....................................................................................................................... 8.00 31,965,865 25,234,149 18,604,424 

9 ....................................................................................................................... 9.00 31,965,865 24,499,174 17,387,312 

10 ..................................................................................................................... 10.00 31,965,865 23,785,605 16,249,825 

Total .......................................................................................................... ........................ ........................ 293,932,792 244,977,667 

Annualized—10 Years .............................................................................. ........................ ........................ 34,457,890 34,879,308 

Discounting Option 1 

1 ....................................................................................................................... 1.75 53,861,070 51,145,783 47,846,852 

2 ....................................................................................................................... 2.75 31,965,865 29,470,268 26,538,787 

3 ....................................................................................................................... 3.75 31,965,865 28,611,911 24,802,605 

4 ....................................................................................................................... 4.75 31,965,865 27,778,554 23,180,004 

5 ....................................................................................................................... 5.75 31,965,865 26,969,470 21,663,556 

6 ....................................................................................................................... 6.75 31,965,865 26,183,952 20,246,314 

7 ....................................................................................................................... 7.75 31,965,865 25,421,312 18,921,788 

8 ....................................................................................................................... 8.75 31,965,865 24,680,886 17,683,914 

9 ....................................................................................................................... 9.75 31,965,865 23,962,025 16,527,023 

10 ..................................................................................................................... 10.75 31,965,865 23,264,102 15,445,816 

Total .......................................................................................................... ........................ ........................ 287,488,264 232,856,658 

Annualized—10 Years .............................................................................. ........................ ........................ 33,702,395 33,153,550 

Difference from Baseline ................................................................... ........................ ........................ ¥755,495 ¥1,725,759 

B. Paperwork Reduction Act 

This final rule does not change the 

information collections already 

approved by the Office of Management 

and Budget (OMB). OMB approved the 

information collection request for the 

general industry beryllium standard 

under OMB Control Number 1218–0267, 

with an expiration date of April 30, 

2020. OSHA received no comments on 

the information collection request in 

response to the proposal. 

C. Federalism 

OSHA reviewed this final rule in 

accordance with the Executive Order on 

Federalism (E.O. 13132, 64 FR 43255 

(Aug. 10, 1999)), which requires that 

Federal agencies, to the extent possible, 

refrain from limiting state policy 

options, consult with states prior to 

taking any actions that would restrict 

state policy options, and take such 

actions only when clear constitutional 

authority exists and the problem is 

national in scope. E.O. 13132 provides 

for preemption of state law only with 

the expressed consent of Congress. 

Federal agencies must limit any such 

preemption to the extent possible. 

Under Section 18 of the Occupational 

Safety and Health Act of 1970 (OSH 

Act) (29 U.S.C. 651 et seq.), Congress 

expressly provides that states and U.S. 

territories may adopt, with Federal 

approval, a plan for the development 

and enforcement of occupational safety 

and health standards. OSHA refers to 

such states and territories as ‘‘State Plan 

States.’’ Occupational safety and health 

standards developed by State Plan 

States must be at least as effective in 

providing safe and healthful 

employment and places of employment 

as the Federal standards. 29 U.S.C. 667. 

Subject to these requirements, State 

Plan States are free to develop and 

enforce under state law their own 

requirements for safety and health 

standards. 

OSHA previously concluded from its 

analysis that promulgation of the 

beryllium standard complies with E.O. 

13132 (82 FR at 2633). In states without 

an OSHA-approved State Plan, this final 

rule limits state policy options in the 

same manner as every standard 

promulgated by OSHA. For State Plan 

States, Section 18 of the OSH Act, as 

noted in the previous paragraph, 

permits State Plan States to develop and 

enforce their own beryllium standards 

provided these requirements are at least 

as effective in providing safe and 

healthful employment and places of 

employment as the requirements 

specified in this final rule. 

D. State Plans 

When Federal OSHA promulgates a 

new standard or a more stringent 

amendment to an existing standard, 

State Plans must amend their standards 

to reflect the new standard or 

amendment, or show OSHA why such 

action is unnecessary, e.g., because an 

existing state standard covering this area 

is ‘‘at least as effective’’ as the new 

Federal standard or amendment (29 CFR 

1953.5(a)). The state standard must be at 

least as effective as the final Federal 

rule. State Plans must adopt the Federal 

standard or complete their own 

standard within six months of the 

promulgation date of the final Federal 

rule. When OSHA promulgates a new 

standard or amendment that does not 

impose additional or more stringent 

requirements than an existing standard, 

State Plans do not have to amend their 

standards, although OSHA may 

encourage them to do so. The 21 states 

and 1 U.S. territory with OSHAapproved occupational safety and health 

plans covering the private sector and 

state and local governments are: Alaska, 


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Arizona, California, Hawaii, Indiana, 

Iowa, Kentucky, Maryland, Michigan, 

Minnesota, Nevada, New Mexico, North 

Carolina, Oregon, Puerto Rico, South 

Carolina, Tennessee, Utah, Vermont, 

Virginia, Washington, and Wyoming. 

Connecticut, Illinois, Maine, New 

Jersey, New York, and the Virgin Islands 

have OSHA-approved State Plans that 

apply to state and local government 

employees only. 

The new amendments to OSHA’s 

beryllium final rule do not impose any 

new requirements on employers. 

Accordingly, State Plans do not have to 

amend their standards to extend the 

compliance dates for their beryllium 

rules, but they may do so within the 

limits of this final rule. 

E. Unfunded Mandates Reform Act 

When OSHA issued the final rule 

establishing standards for occupational 

exposure to beryllium, it reviewed the 

rule according to the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

(2 U.S.C. 1501 et seq.) and E.O. 13132 

(64 FR 43255 (Aug. 10, 1999)). OSHA 

concluded that the final rule did not 

meet the definition of a ‘‘Federal 

intergovernmental mandate’’ under the 

UMRA because OSHA standards do not 

apply to state or local governments 

except in states that voluntarily adopt 

State Plans. OSHA further noted that the 

rule did not impose costs of over $100 

million per year on the private sector. 

(82 FR at 2634.) 

As discussed above in Section II.A of 

this preamble, OSHA has determined 

that this extension does not impose any 

costs on private-sector employers 

beyond those costs already identified in 

the final rule for beryllium in general 

industry. Because OSHA reviewed the 

total costs of the beryllium rule under 

UMRA, no further review of those costs 

is necessary. Therefore, for purposes of 

UMRA, OSHA certifies that this final 

rule does not mandate that state, local, 

or tribal governments adopt new, 

unfunded regulatory obligations of, or 

increase expenditures by the private 

sector by, more than $100 million in any 

year. 

F. Consultation and Coordination With 

Indian Tribal Governments 

OSHA reviewed this final rule in 

accordance with E.O. 13175 (65 FR 

67249) and determined that it does not 

have ‘‘tribal implications’’ as defined in 

that order. This rule does not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes. 

G. Legal Considerations 

The purpose of the OSH Act 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 and enforce 

occupational safety and health 

standards. 29 U.S.C. 654(b), 655(b). A 

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 or places of employment.’’ 

29 U.S.C. 652(8). A standard is 

reasonably necessary or appropriate 

within the meaning of Section 652(8) 

when a significant risk of material harm 

exists in the workplace and the standard 

would substantially reduce or eliminate 

that workplace risk. See Indus. Union 

Dep’t, AFL–CIO v. Am. Petroleum Inst., 

448 U.S. 607 (1980). In the beryllium 

rulemaking, OSHA made such a 

determination with respect to beryllium 

exposure in general industry (82 FR at 

2479). This final rule does not impose 

any new requirements on employers. 

Therefore, this rule does not require an 

additional significant risk finding. See 

Edison Elec. Inst. v. OSHA, 849 F.2d 

611, 620 (D.C. Cir. 1988). 

In addition to materially reducing a 

significant risk, a health standard must 

be technologically and economically 

feasible. United Steelworkers of Am., 

AFL–CIO–CLC v. Marshall, 647 F.2d 

1189, 1251 (D.C. Cir. 1980) (OSHA must 

reduce risk ‘‘as far as it c[an] within the 

limits of [technological and economic] 

feasibility.’’). A standard is 

technologically feasible when the 

protective measures it requires already 

exist, when available technology can 

bring the protective measures into 

existence, or when that technology is 

reasonably likely to develop. See Am. 

Textile Mfrs. Inst. v. OSHA, 452 U.S. 

490, 513 (1981); Am. Iron & Steel Inst. 

v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 

1991). And a rule is economically 

feasible if it does not ‘‘threaten massive 

dislocation to, or imperil the existence 

of, [an] industry.’’ United Steelworkers, 

647 F.2d at 1265 (internal citations and 

quotation marks omitted). In 2017, 

OSHA found the beryllium standard to 

be technologically and economically 

feasible. (82 FR at 2471). This final rule 

is technologically and economically 

feasible as well because it does not 

require employers to implement any 

additional protective measures and does 

not impose any additional costs on 

employers. 

List of Subjects in 29 CFR Part 1910 

Beryllium, Occupational safety and 

health. 

Signed at Washington, DC, on August 6, 

2018. 

Loren Sweatt, 

Deputy Assistant Secretary of Labor for 

Occupational Safety and Health. 

Amendments to Standards 

For the reasons stated in the preamble 

of this final rule, OSHA amends 29 CFR 

part 1910 as follows: 

PART 1910—OCCUPATIONAL SAFETY 

AND HEALTH STANDARDS 

Subpart Z—Toxic and Hazardous 

Substances 

■ 1. The authority citation for subpart Z 

of 29 CFR part 1910 is revised to read 

as follows: 

Authority: 29 U.S.C. 653, 655, 657; 

Secretary of Labor’s Order No. 12–71 (36 FR 

8754), 8–76 (41 FR 25059), 9–83 (48 FR 

35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 

3–2000 (65 FR 50017), 5–2002 (67 FR 65008), 

5–2007 (72 FR 31160), 4–2010 (75 FR 55355), 

or 1–2012 (77 FR 3912); 29 CFR part 1911; 

and 5 U.S.C. 553, as applicable. 

Section 1910.1030 also issued under Public 

Law 106–430, 114 Stat. 1901. Section 

1910.1201 also issued under 40 U.S.C. 5101 

et seq. 

■ 2. Amend § 1910.1024 by revising 

paragraph (o)(2) to read as follows: 

§ 1910.1024 Beryllium. 

* * * * * 

(o) * * * 

(2) Compliance dates. (i) Obligations 

contained in paragraphs (c), (d), (g), (k), 

and (l) of this standard: March 12, 2018; 

(ii) Change rooms and showers 

required by paragraph (i) of this 

standard: March 11, 2019; 

(iii) Engineering controls required by 

paragraph (f) of this standard: March 10, 

2020; and 

(iv) All other obligations of this 

standard: December 12, 2018. 

* * * * * 

[FR Doc. 2018–17106 Filed 8–8–18; 8:45 am] 

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