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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations bag or hard container with air holes, for at least five calendar days between use.
This provides time for pathogens that may be on the respirator to die off during storage and avoids exposing the employee to those pathogens during subsequent usage. The respirator must also be stored in a dry place to avoid exposure to water and moisture, which could deform the respirator and lead to poor fit.
Combining the five-day total use limitation with the five-day rest requirement, the employer could direct the employee to wear one FFR each day and store it in a breathable paper bag at the end of each day, rotating to the next respirator each day. This strategy requires a minimum of five FFRs per five-day period per employee and an effective and user-friendly tracking system to make sure that each respirator is used in the proper sequence. The five respirators, each used five times, would provide respiratory protection for the employee for 25 days. More information on FFR reuse is available from the CDC
October 19, 2020.
Paragraph d3ii of the mini respiratory protection program section contains the requirements employers must comply with when employees are reusing elastomeric respirators and PAPRs that are provided by the employer. Reusing these respirators is much simpler than reusing FFRs because elastomeric respirators and PAPRs are designed for reuse and made of more durable materials. The employer must ensure that the respirator is not damaged, which will be identified when the employee inspects the respirator before each use. The respirator must be cleaned and disinfected as often as necessary to be maintained in a sanitary condition following the requirements of 29 CFR
1910.134, Appendix B2. Further, the employer must implement a change schedule for filter cartridges, canisters, or filters that is consistent with the manufacturers recommendations. For more information about reuse of elastomeric respirators and PAPRs during the pandemic, refer to the CDC
Guidance for Contingency and Crisis Strategies CDC, October 13, 2020; CDC, November 3, 2020, respectively.
Finally, paragraph d4 of the mini respiratory protection program section requires the employer to ensure that an employee discontinues use of a respirator if the employee or supervisor reports medical signs or symptoms related to the employees ability to use a respirator. These signs and symptoms include shortness of breath, coughing, wheezing, or chest pain. They also include any signs or symptoms related
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to problems associated with lung or cardiovascular function. If an employee has had a previous medical evaluation that determined they were medically unfit for respirator use, the employer must not provide them with a respirator until they are re-evaluated and medically cleared to use a respirator.
These provisions are necessary because the medical evaluation that would normally be required by the 29 CFR
1910.134 respiratory protection standard is not required in the mini respiratory protection program section, and it is important to ensure that employee health is not compromised by respirator use.
Paragraph e contains the effective date for the mini respiratory protection program. The effective date is consistent with the effective date for 1910.502;
the mini respiratory protection program section becomes effective on the date of publication. A compliance date specific to the mini respiratory protection program is not included, as compliance with these provisions would be required on the compliance dates for 1910.502f i.e., within 14 days of publication. For more information on compliance dates, please see the Summary and Explanation on Dates Section VIII of this preamble.
References Centers for Disease Control and Prevention CDC. 2020, May 17. Hand hygiene recommendations: Guidance for healthcare providers about hand hygiene and COVID19. https www.cdc.gov/
coronavirus/2019-ncov/hcp/handhygiene.html. CDC, May 17, 2020.
Centers for Disease Control and Prevention CDC. 2020, October 13. Elastomeric respirators: Conventional, contingency, and crisis strategies. https
www.cdc.gov/coronavirus/2019-ncov/
hcp/elastomeric-respirators-strategy/
index.html. CDC, October 13, 2020.
Centers for Disease Control and Prevention CDC. 2020, October 19. Implementing Filtering Facepiece Respirator FFR
Reuse, Including Reuse after Decontamination, When There Are Known Shortages of N95 Respirators.
https www.cdc.gov/coronavirus/2019ncov/hcp/ppe-strategy/decontaminationreuse-respirators.htmlprint. CDC, October 19, 2020.
Centers for Disease Control and Prevention CDC. 2020, November 3.
Considerations for Optimizing the Supply of Powered Air-Purifying Respirators PAPRs. https
www.cdc.gov/coronavirus/2019-ncov/
hcp/ppe-strategy/powered-air-purifyingrespirators-strategy.html. CDC, November 3, 2020.
Centers for Disease Control and Prevention CDC. 2021, April 9. Strategies for optimizing the supply of N95 respirators.
https www.cdc.gov/coronavirus/2019-

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ncov/hcp/respirators-strategy/
index.html. CDC, April 9, 2021.

T. Severability The severability clause under 29 CFR
1910.505 of this ETS serves two purposes. First, it expresses OSHAs intent that if any section or provision of the ETS is held invalid or unenforceable or is stayed or enjoined by any court of competent jurisdiction, the remaining sections or provisions should remain effective and operative. Second, the severability clause also serves to express OSHAs judgment, based on its technical and scientific expertise, that each individual section and provision of the ETS can continue to sensibly function in the event that some sections or provisions are invalidated, stayed, or enjoined.
Under the principle of severability, a reviewing court will generally presume that an offending provision of a regulation is severable from the remainder of the regulation, so long as that outcome appears consistent with the issuing agencys intent, and the remainder of the regulation can function sensibly without the offending provision. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 1988
invalidating and severing subsection of a regulation where it would not impair the function of the statute as a whole and there was no indication the regulation would not have been passed but for inclusion of the invalidated subsection; Virginia v. EPA, 116 F.3d 499, 501 D.C. Cir. 1997 same; Davis Cnty. Solid Waste Mgmt. v. EPA, 108
F.3d 1454, 145960 D.C. Cir. 1997
same. The principle of severability has always applied to OSHAs standards, including OSHAs prior ETSs, and reviewing courts have regularly severed invalid provisions, or prohibited invalid applications, of both OSHAs permanent and emergency standards, while allowing the remainder of the standards to continue in effect. See e.g., Am.
Dental Assn v. Martin, 984 F.2d 823, 83031 7th Cir. 1993 affirming and allowing most of OSHAs bloodborne pathogens standard to take effect while vacating application of the standard to certain employers; United Steelworkers of Am., AFLCIOCLC v. Marshall, 647
F.2d 1189, 1311 D.C. Cir. 1980
affirming and allowing most of OSHAs lead standard to take immediate effect while staying application of the standard to certain industries pending further agency action; Dry Color Mfrs.
Assn, Inc. v. Dept of Labor, 486 F.2d 98, 10809 3d Cir. 1973 vacating and remanding OSHAs ETS on carcinogens as to only 2 of 14 regulated chemicals, allowing ETS to take effect as to
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