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OSHA delays beryllium final rule’s effective date to conduct additional review

By Pamela Wolf, J.D.

OSHA is finalizing its proposal to delay the effective date of its final rule, “Occupational Exposure to Beryllium,” to May 20, 2017. The agency previously moved the original March 10, 2017, effective date of the rule to March 21, 2017, citing a Trump White House directive calling for a regulatory freeze. OSHA subsequently proposed a further 60-day delay to May 20, 2017, with a 10-day comment period that ended March 13. In a notice scheduled for publication in the Federal Register March 21, OSHA published a final rule implementing the change in effective date of the beryllium rule to May 20. OSHA stressed that the effective date change does not impact the various compliance dates contained in the beryllium rule.

Beryllium rule. On January 9, 2017, OSHA published the beryllium final rule—a much-anticipated rulemaking that was long in the making. The proposed rule had been published on August 7, 2015. The regulatory action amends the agency’s existing standards for occupational exposure to beryllium and beryllium compounds. Employees exposed to beryllium at previously permissible exposure limits face a significant risk of material impairment to their health, according to OSHA.

Time to review concerns raised in comments. OSHA said that the delay of the final rule’s effective date will give the agency a chance to further review the final rule, including review of concerns that commenters to the proposed delay have raised. The delay and additional review is consistent with the White House’s January 20, 2017, memorandum, “Regulatory Freeze Pending Review,” according to the agency. The 60-day delay will provide adequate time to review the rule and consider the issues raised without hindering protections of affected workers because the delay in effective date does not alter the beryllium final rule’s compliance dates, OSHA said.

Comments. In response to its proposed 60-day delay, OSHA said it received 25 unique comments, many of which supported the delay in light of the ongoing transition to a new administration. Some commenters supported the proposed extension and requested that OSHA further review the impact of the standards on entities which would be affected by changes from the proposed beryllium rule. Congressman Bradley Byrne (R-Ala.), Chairman of the House Subcommittee on Workforce Protections, among others, urged OSHA to delay the effective date beyond the proposed 60 days—or even indefinitely—and to re-propose the beryllium final rule. Byrne cited concerns about the final rule’s coverage of abrasive blasting operations under the construction and shipyard standards.

OSHA said it also received some 2,500 comments with nearly identical messages, urging that the agency adopt the proposal and delay the effective date, particularly for the construction and shipyards standards. Several commenters opposed the proposal and argued in favor of keeping the effective date of March 21, 2017, stating that the final rule was long overdue, based on sound science, and that all interested parties had the opportunity to participate in the rulemaking.

After carefully reviewing all of the comments, OSHA said it believes commenters have raised substantive concerns, including about the beryllium final rule’s treatment of the construction and shipyard industries, as suggested by Congressman Byrne. Accordingly, the agency has adopted the proposal and is delaying the effective date of the beryllium final rule to May 20, 2017, to further evaluate the rule in light of those substantive concerns.