Voglio sapere a riguardo di…

khammond on DSKJM1Z7X2PROD with RULES2

32618

Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
remaining 12 chemicals; cf. N. Am.s Bldg. Trades Unions v. OSHA, 878 F.3d 271, 309 D.C. Cir. 2017 affirming and allowing all of OSHAs silica standard to take effect while remanding for reconsideration of decision not to require broader medical removal protection provisions.
With respect to this ETS, it is OSHAs intent that all provisions and sections be considered severable. In this regard, the agency intends that: 1 In the event that any provision within a section of the ETS is stayed, enjoined, or invalidated, all remaining provisions within that section shall remain effective and operative; 2 in the event that any whole section of the ETS is stayed, enjoined, or invalidated, all remaining sections shall remain effective and operative; and 3 in the event that any application of a provision is stayed, enjoined, or invalidated, the provision shall be construed so as to continue to give the maximum effect to the provision permitted by law. Although OSHA always intends for a presumption of severability to be applied to its standards, the agency has opted to include an explicit severability clause in this ETS to remove any potential for doubt as to its intent. OSHA determined that such clarity is useful here given the unique nature of this emergency rulemaking proceeding, the unprecedented hazard at issue, and the urgent need for implementation of this ETS without delay. Having identified a grave danger to healthcare employees that requires immediate emergency rulemaking see Section IV of the preamble, it is OSHAs intent to have as many protective measures in place as quickly as possible to begin to reduce the hazard of exposure to COVID19 in the workplace. Thus, should a court of competent jurisdiction determine that any provision or section of this ETS is invalid on its face or as applied, the court should presume that OSHA would have issued the remainder of the ETS
without the invalidated provisions or applications. Similarly, should a court of competent jurisdiction determine that any provision, section, or application of this ETS is required to be stayed or enjoined, the court should presume that OSHA intends for the remainder of the ETS to take effect as specified in the rule. See Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928, 973 D. Md. 2020
noting that existence of a severability clause creates a presumption that the agency did not intend the validity of the remaining rules to depend on the validity of the offensive provision and thus without strong evidence to the contrary objectionable provision should
VerDate Sep<11>2014

21:53 Jun 17, 2021

Jkt 253001

be severed; Consumer Fin. Prot. Bureau v. Mortg. Law Grp., LLP, 182 F. Supp. 3d 890, 89495 W.D. Wis. 2016 finding severability clause a clear expression of agency intent and therefore severing specific offending requirements within an otherwise valid provision; cf. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686
1987 holding that inclusion of a severability clause in a statute creates a presumption of Congresss intent.
It is also OSHAs position, based on its technical and scientific expertise, that each of the provisions and sections of the ETS can continue to function sensibly in the event that any specific provisions, sections, or applications are invalidated, enjoined, or stayed. As explained in greater detail in Need for Specific Provisions Section V of this preamble, and specifically in the subsection IntroductionEffective Infection Prevention Utilizes Overlapping Controls, the best available evidence shows that each control measure required by this ETS is important both individually and collectively to protect healthcare employees from the grave danger of COVID19. The ETS requires employers to implement multiple infection control measures together because an infection control program is most effective when it utilizes a suite of overlapping controls in a layered approach. This ensures that no inherent weakness in any one measure will result in an infection incident. As noted in Section V of the preamble, this is commonly referred to as the Swiss Cheese Model of Accident Causation, which recognizes that each control has certain weaknesses or holes, and that by stacking several controls together with different weaknesses, the holes are blocked by the strengths of the other controls.
However, while these control measures work best when used together, each individual measure will still independently result in some reduction of risk to employees, regardless of the implementation of any other measure.
Indeed, to the extent any individual measures are not implemented, the remaining measures become increasingly more important as a means of reducing the hazard of COVID19 to which employees are exposed.
Accordingly, if a court of competent jurisdiction were to invalidate, enjoin, or stay any protections required by this ETS, the remaining protections would still serve to reduce the risk of employee exposure to COVID19becoming more important in that role absent the invalidated, enjoined, or stayed provisionsand, therefore, should be allowed to take effect. Moreover, as
PO 00000

Frm 00244

Fmt 4701

Sfmt 4700

described in greater detail in Technological Feasibility Section VI.A.
of the preamble, each of the individual protective measures required by this ETS is capable of being implemented independent of all other measures.
While OSHA has emphasized throughout this rule that a multilayered approach is intended for the ETS, the various requirements imposed by this ETS are not required to rise or fall as a whole.
OSHA notes that 29 CFR 1910.504, the mini respiratory protection program, applies only to respirator use in accordance with 1910.502f4. Thus, in the event that 1910.502f4
specifically is stayed, enjoined, or invalidated, the mini respiratory protection program should also be stayed, enjoined, or invalidated, as it cannot function sensibly in that context.
OSHA also notes that in the event that the entirety of 29 CFR 1910.502 is stayed, enjoined, or invalidated, the remaining sections of the ETS
including the mini respiratory protection program, severability, and incorporation by referenceshould also be stayed, enjoined or invalidated, as their implementation is dependent on the existence of 1910.502.
The severability clause contained in the ETS is included to make clear OSHAs intent that the general presumption of severability should be applied to this standard. The clause is further included to make clear that, in the agencys scientific and technical judgment, and with the exceptions noted above, the severance of any provisions, sections, or applications of this ETS will not undercut the structure or function of the rule more broadly.
Consequently, in the event that a court of competent jurisdiction stays, enjoins, or invalidates any provision, section, or application of this ETS, the remainder of the rule should be allowed to take effect, particularly given the urgent need to address the grave danger COVID19
poses to healthcare employees.
U. Incorporation by Reference OSHAs ETS incorporates by reference a number of consensus standards and evidence-based guidelines. Those documents, which are listed below, will all be fixed in time and made publicly available. To aid readers in locating the publicly available copies of those documents, OSHA has created a new centralized incorporation by reference IBR section, 29 CFR 1910.509, that is specific to the ETS provisions in subpart U of 29 CFR
part 1910. For the benefit of the reader and for administrative convenience, this centralized IBR section is located in the
E:FRFM21JNR2.SGM

21JNR2