On March 16, 2017, the Occupational Safety and Health Administration (OSHA) adopted a 60 day effective-date delay for its controversial rule regulating occupational exposure to beryllium (the Final Beryllium Rule). The rule is now scheduled to be effective on May 20, 2017.
The delay in the rule reflects the agency’s compliance with a directive issued by the White House. The President directed federal agencies via a memorandum from Chief of Staff Reince Priebus issued just hours after the President’s inauguration to delay the effective date of any pending regulations for 60 days and to consider a longer delay when pending regulations pose serious issues of fact, law, or policy. Accordingly, OSHA initially delayed the effective date of the Final Beryllium Rule 60 days from the date of the Memorandum, changing the effective date from March 10, 2017 to March 21, 2017. Then, on March 2, 2017, OSHA proposed this second 60 day delay, due to the issues of fact, law, and policy raised by the rule.
The agency received numerous comments to the proposed delay. One industry group, the Abrasive Blasting Manufacturers Alliance (the ABMA) submitted comments in favor of the proposed delay but recommending an even longer delay, in order for OSHA to adequately address what it sees as serious defects in the Final Beryllium Rule. Congressman Byrne, Chairman of the Subcommittee on Workforce Protections, also urged OSHA to commit to a lengthier or even indefinite delay, citing concerns with the rule’s coverage of abrasive blasting operations under the construction and shipyard standards. Both the ABMA and Congressman Byrne argue that the Final Beryllium Rule overreaches by encompassing this industry where only trace amounts of beryllium are found and other OSHA regulations already protect workers from even those trace amounts.
In adopting the proposed delay, OSHA agreed that “commenters have raised substantive concerns, including about the Beryllium Final Rule’s treatment of the construction and shipyard industries.” However, OSHA determined that 60 days is adequate to review the rule and consider the issues raised. It remains to be seen whether OSHA will utilize the 60 day delay to make substantive amendments to the Final Beryllium Rule.