16426 Federal Register / Vol. 87, No. 56 / Wednesday, March 23, 2022 / Rules and Regulations 

■ a. In paragraph (a) introductory text, 

remove the phrase ‘‘see § 120.14’’ and 

add in its place ‘‘see § 120.61’’; 

■ b. In paragraph (a)(1), remove the 

phrase ‘‘see § 120.15’’ and add in its 

place ‘‘see § 120.62’’; 

■ c. In paragraph (a)(2), remove the 

phrase ‘‘see § 120.16’’ and add in its 

place ‘‘see § 120.63’’; 

■ d. In paragraph (b)(2)(iii), remove the 

phrase ‘‘see § 120.39’’ and add in its 

place ‘‘see § 120.64’’; 

■ e. In paragraph (b)(2)(v), remove the 

reference ‘‘§ 120.40’’ and add in its 

place ‘‘§ 120.66’’; and 

■ f. In paragraph (b)(2)(vi), remove ‘‘see 

§ 120.39’’ and ‘‘parts’’ and add in their 

places ‘‘see § 120.64’’ and ‘‘part,’’ 

respectively. 

§ 129.3 [Amended] 

■ 45. In § 129.3, in paragraph (d), 

remove the phrase ‘‘see § 120.40’’ and 

add in its place ‘‘see § 120.66’’. 

§ 129.4 [Amended] 

■ 46. In § 129.4, in paragraph (a)(1), 

remove the phrase ‘‘see § 120.44’’ and 

add in its place ‘‘see § 120.39’’. 

§ 129.5 [Amended] 

■ 47. In § 129.5: 

■ a. In paragraph (b), remove the phrase 

‘‘see § 120.44’’ and add in its place ‘‘see 

§ 120.39’’; and 

■ b. In paragraph (c)(2), remove the 

reference ‘‘§ 120.1(c)(2)’’ and add in its 

place ‘‘§ 120.16(c)’’. 

§ 129.6 [Amended] 

■ 48. In § 129.6, in paragraphs (a)(2)(i) 

and (iii), remove the reference 

‘‘§ 120.27’’ and add in its place 

‘‘§ 120.6’’. 

§ 129.8 [Amended] 

■ 49. In § 129.8: 

■ a. In paragraph (a), remove the phrase 

‘‘see § 120.40’’ and add in its place ‘‘see 

§ 120.66’’; 

■ b. In paragraph (c)(1)(i), remove the 

reference ‘‘§ 120.27’’ and add in its 

place ‘‘§ 120.6’’; 

■ c. In paragraph (c)(2), remove the 

phrase ‘‘see § 120.37’’ and add in its 

place ‘‘see § 120.65’’; and 

■ d. In paragraph (d)(1), remove 

‘‘§ 120.27’’ and ‘‘government’’ and add 

in their places ‘‘§ 120.6’’ and 

‘‘Government,’’ respectively. 

PART 130—POLITICAL 

CONTRIBUTIONS, FEES AND 

COMMISSIONS 

■ 50. The authority citation for part 130 

continues to read as follows: 

Authority: Sec. 39, Pub. L. 94–329, 90 

Stat. 767 (22 U.S.C. 2779); 22 U.S.C. 2651a; 

E.O. 13637, 78 FR 16129. 

§ 130.4 [Amended] 

■ 51. In § 130.4, remove the reference 

‘‘§§ 120.6 and 120.9’’ and add in its 

place ‘‘§§ 120.31 and 120.32’’. 

Bonnie D. Jenkins, 

Under Secretary for Arms Control and 

International Security, Department of State. 

[FR Doc. 2022–05629 Filed 3–22–22; 8:45 am] 

BILLING CODE 4710–25–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket No. OSHA–2020–0004] 

RIN 1218–AD36 

Occupational Exposure to COVID–19 in 

Healthcare Settings 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Notice of limited reopening of 

comment period; notice of informal 

hearing. 

SUMMARY: OSHA is partially reopening 

the comment period to allow for 

additional public comment on specific 

topics and is scheduling an informal 

public hearing on its interim final rule 

establishing an Emergency Temporary 

Standard (ETS), ‘‘Occupational 

Exposure to COVID–19.’’ The public 

hearing will begin on April 27, 2022. 

DATES: Comments: Written comments in 

response to OSHA’s limited reopening 

of the comment period must be 

submitted in Docket No. OSHA–2020– 

0004 on or before April 22, 2022. 

Informal public hearing: The hearing 

will begin on April 27, 2022, and will 

be held virtually. If necessary, the 

hearing will continue on subsequent 

days. Additional information on how to 

access the informal hearing will be 

posted when available at https://

www.osha.gov/coronavirus/healthcare/ 

rulemaking. To testify at the hearing, 

interested persons must electronically 

submit their Notice of Intention to 

Appear (NOITA) by April 6, 2022. 

ADDRESSES: 

Notices of Intention to Appear: 

Notices of intention to appear at the 

hearing (NOITA) must be submitted 

electronically at https://www.osha.gov/ 

coronavirus/healthcare/rulemaking. 

Follow the instructions online for 

making electronic submissions. See 

‘‘Notices of Intention to Appear’’ in the 

SUPPLEMENTARY INFORMATION section of 

this document for additional 

requirements for NOITAs. 

Written comments: You may submit 

comments and attachments, identified 

by Docket No. OSHA–2020–0004, 

electronically at www.regulations.gov, 

which is the Federal e-Rulemaking 

Portal. Follow the instructions online 

for making electronic submissions. After 

accessing ‘‘all documents and 

comments’’ in the docket (Docket No. 

OSHA–2020–0004), check the 

‘‘proposed rule’’ box in the column 

headed ‘‘Document Type,’’ find the 

document posted on the date of 

publication of this hearing notice, and 

click the ‘‘Comment Now’’ link. When 

uploading multiple attachments to 

www.regulations.gov, please number all 

of your attachments because 

www.regulations.gov will not 

automatically number the attachments. 

This will be very useful in identifying 

all attachments in the preamble. For 

example, Attachment 1—title of your 

document, Attachment 2—title of your 

document, Attachment 3—title of your 

document. For assistance with 

commenting and uploading documents, 

please see the Frequently Asked 

Questions on www.regulations.gov. 

Instructions: All submissions must 

include the agency’s name and the 

docket number for this rulemaking 

(Docket No. OSHA–2020–0004). All 

comments, including any personal 

information you provide, are placed in 

the public docket without change and 

may be made available online at 

www.regulations.gov. Therefore, OSHA 

cautions commenters about submitting 

information they do not want made 

available to the public, or submitting 

materials that contain personal 

information (either about themselves or 

others), such as Social Security 

Numbers and birthdates. 

Docket: To read or download 

comments and other materials 

submitted in the docket, or to view the 

hearing schedule and procedures when 

available, go to Docket No. OSHA– 

2020–0004 at www.regulations.gov. All 

comments and submissions are listed in 

the www.regulations.gov index; 

however, some information (e.g., 

copyrighted material) may not be 

publicly available to read or download 

through that website. All documents 

submitted to www.regulations.gov, 

including copyrighted material, are 

available for inspection through the 

OSHA Docket Office. Documents 

submitted to the docket by OSHA or 

stakeholders are assigned document 

identification numbers (Document ID) 

for easy identification and retrieval. The 

full Document ID is the docket number 

plus a unique four-digit code. OSHA is 

identifying supporting information in 

this rulemaking by author name and 


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publication year, when appropriate. 

This information can be used to search 

for a supporting document in the docket 

at www.regulations.gov. Contact the 

OSHA Docket Office at (202) 693–2350 

(TTY number: (877) 889–5627) for 

assistance in locating docket 

submissions. Please note that NOITAs 

will be gathered outside the docket and 

OSHA will add a list of individuals who 

have submitted NOITAs to the docket 

after the submission deadline has 

passed. 

FOR FURTHER INFORMATION CONTACT: 

For press inquiries: Contact Frank 

Meilinger, Director, Office of 

Communications, Occupational Safety 

and Health Administration, U.S. 

Department of Labor; telephone: (202) 

693–1999; email: OSHAComms@

dol.gov. 

For general information and technical 

inquiries: Contact Andrew Levinson, 

Acting Director, Directorate of 

Standards and Guidance, Occupational 

Safety and Health Administration, U.S. 

Department of Labor; telephone: (202) 

693–1950; email: ETS@dol.gov. 

For Hearing Inquiries: Contact Amy 

Tryon, Division of Occupational Safety 

and Health, Office of the Solicitor, U.S. 

Department of Labor; telephone: (202) 

693–8081; email: ETS@dol.gov. 

SUPPLEMENTARY INFORMATION: On June 

21, 2021, OSHA published an ETS to 

protect healthcare and healthcare 

support service workers from 

occupational exposure to COVID–19 in 

settings where people with COVID–19 

are reasonably expected to be present 

(86 FR 32376). Although the ETS took 

effect immediately, OSHA also 

requested comment on whether it 

should become permanent, as well as on 

all other aspects of the ETS. OSHA 

received 481 comments concerning the 

ETS during the comment period, which 

was to end on July 21, 2021, but was 

extended to August 20, 2021, in 

response to requests from the public (86 

FR 38232). To read or download 

comments and other materials 

submitted in the docket, go to Docket 

No. OSHA–2020–0004 at 

www.regulations.gov. In accordance 

with 29 U.S.C. 655(c)(3), the agency is 

now preparing to promulgate a final 

standard. 

I. Additional Information and Request 

for Comment 

OSHA is seeking public comment on 

certain specific topics and questions for 

the development of a final standard. 

Accordingly, the agency is partially 

reopening the comment period for the 

ETS to allow for additional comment on 

the topics identified below. OSHA 

encourages commenters to explain why 

they prefer or disfavor particular policy 

choices, and include any relevant 

studies, experiences, anecdotes, or other 

information that may help support the 

comment. OSHA seeks comments on the 

following topics: 

A. Potential Changes From the ETS 

The following is a list of potential 

rulemaking outcomes that would depart 

from the provisions of the ETS such that 

OSHA has decided to provide this 

additional notice and an opportunity to 

comment. OSHA has not made any 

decisions about these potential 

provisions or approaches, nor is this 

intended to list all of the potential 

changes from the ETS. Other changes 

may result after due consideration of all 

comments and hearing testimony. 

A.1—Alignment with CDC 

Recommendations for Healthcare 

Infection Control Practices: Evolving 

CDC recommendations have resulted in 

inconsistencies between those 

recommendations and some of the 

Healthcare ETS provisions (e.g., 

isolation and return-to-work guidance). 

A number of commenters requested that 

OSHA align its ETS more closely with 

various CDC recommendations. OSHA 

is considering doing so, but notes that, 

in some cases, CDC recommendations 

have continued to evolve even after the 

close of the comment period. OSHA is 

considering whether it is appropriate to 

align its final rule with some or all of 

the CDC recommendations that have 

changed between the close of the 

original comment period for this rule 

and the close of this comment period. 

OSHA seeks comment on this approach. 

A.2—Additional Flexibility for 

Employers: Some employers expressed 

concern that the provisions of the 

Healthcare ETS were overly 

prescriptive. The ETS, while rooted in 

a programmatic approach (e.g., COVID– 

19 plan, hazard assessment, policies and 

procedures to minimize the risk of 

transmission of COVID–19), also 

specified how employers were required 

to implement particular policies and 

procedures (e.g., criteria for medical 

removal and return to work, cleaning, 

ventilation, barriers, aerosol-generating 

procedures). OSHA is considering 

restating various provisions as broader 

requirements without the level of detail 

included in the Healthcare ETS and 

providing a ‘‘safe harbor’’ enforcement 

policy for employers who are in 

compliance with CDC guidance 

applicable during the period at issue. 

OSHA seeks comment on this approach. 

A.3—Removal of Scope Exemptions 

(e.g., ambulatory care facilities where 

COVID–19 patients are screened out; 

home healthcare): A final standard will 

be adopted under Section 6(b) of the 

OSH Act, which requires a finding of 

significant risk from exposure to 

COVID–19, rather than the finding of 

grave danger OSHA made in issuing the 

Healthcare ETS under Section 6(c) of 

the OSH Act. Section 6(b) requires that 

the standard substantially reduce or 

eliminate significant risk of material 

impairment of health to the extent 

feasible. In view of this different risk 

finding, OSHA is considering whether 

the scope of the final standard should 

cover employers regardless of screening 

procedures for non-employees and/or 

vaccination status of employees to 

ensure that all workers are protected to 

the extent there is a significant risk. 

OSHA seeks comment on this approach. 

A.4—Tailoring Controls to Address 

Interactions with People with Suspected 

or Confirmed COVID–19: OSHA is 

considering the need for COVID–19- 

specific infection control measures in 

areas where healthcare employees are 

not reasonably expected to encounter 

people with suspected or confirmed 

COVID–19. This could include 

eliminating certain requirements that 

were included in the Healthcare ETS 

and that applied to all areas of covered 

healthcare settings. For example, OSHA 

could consider imposing cleaning 

requirements or medical removal 

provisions only with respect to staff 

exposed to COVID–19 patients or 

eliminating facemask requirements for 

staff not exposed to COVID–19 patients. 

If OSHA did restrict infection control 

requirements to particular areas of a 

facility or particular staff, it could 

consider balancing that narrower scope 

with a new ‘‘outbreak provision’’ to 

ensure that healthcare employers would 

still have a duty to address an outbreak 

quickly if an outbreak occurs among 

staff in the areas normally subject to 

fewer requirements. For example, an 

outbreak could trigger a broad 

performance requirement for the 

employer to implement additional 

infection control measures to stop the 

outbreak, or it could trigger more 

specific requirements, such as 

employer-provided testing and/or 

medical removal of staff with COVID–19 

even if they do not interact with 

COVID–19 patients. OSHA seeks 

comment on these approaches, 

including comment on how OSHA 

should define an ‘‘outbreak’’ if it were 

to implement that approach (the CDC 

discusses ‘‘outbreaks’’ at https://

www.cdc.gov/coronavirus/2019-ncov/ 

php/contact-tracing/contact-tracingplan/outbreaks.html). 


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1Centers for Disease Control and Prevention 

(CDC). (2022, February 2). Interim Infection 

Prevention and Control Recommendations for 

Healthcare Personnel During the Coronavirus 

Disease 2019 (COVID–19) Pandemic. https://

www.cdc.gov/coronavirus/2019-ncov/hcp/infectioncontrol-recommendations.html. 

2See Centers for Disease Control and Prevention 

(CDC). (2022, February 2); see also Centers for 

Disease Control and Prevention (CDC). (2022, 

March 4). COVID–19 Community Levels. https://

www.cdc.gov/coronavirus/2019-ncov/science/ 

community-levels.html. 

A.5—Vaccination 

A.5.1—Booster Doses: In the ETS, 

certain requirements take account of 

whether individuals are ‘‘fully 

vaccinated,’’ which is defined in 

paragraph (b) of the ETS as meaning ‘‘2 

weeks or more following the final dose 

of a COVID–19 vaccine.’’ Subsequent to 

the publication of the ETS, the Advisory 

Committee on Immunization Practices 

(ACIP) has recommended additional 

doses and booster doses. CDC has also 

adopted the concept of ‘‘up to date’’ to 

describe vaccination recommendations 

beyond the primary vaccination series. 

OSHA is considering how these ACIP 

and CDC recommendations might 

impact the requirements in the ETS that 

take account of individuals’ vaccination 

status (e.g., fully vaccinated, up to date) 

and seeks comment on this issue. 

A.5.2—Employer Support of 

Employee Vaccination: OSHA is not 

considering at this time requiring 

mandatory vaccination for employees 

covered by this standard. 

Æ The Healthcare ETS included a 

provision requiring employers to inform 

employees about the safety, efficacy, 

and benefits of vaccination and provide 

reasonable time and paid leave to each 

employee for vaccination and side 

effects experienced following 

vaccination. OSHA is considering an 

adjustment to the requirement that 

would include paid time up to 4 hours, 

including travel time, for employees to 

receive a vaccine and paid sick leave to 

recover from side effects and seeks 

comment on the approach. 

Æ OSHA is considering requiring 

employer support for employees who 

wish to stay up to date on vaccination 

and boosters in accordance with ACIP 

and CDC recommendations. OSHA 

seeks comment on the approach. 

Æ OSHA is considering whether to 

limit the provisions that provide 

support for vaccination to employees 

not covered by the Centers for Medicare 

& Medicaid Services (CMS) vaccination 

rule (86 FR 61555) and seeks comment 

on this approach. The CMS vaccination 

rule requires healthcare staff in facilities 

regulated by CMS to be vaccinated. The 

majority of healthcare employees 

covered by this final rule work in 

facilities covered by the CMS 

vaccination rule and are subject to the 

CMS requirements. 

A.5.3—Requirements for Vaccinated 

Workers: During the initial comment 

period, stakeholders raised questions 

about whether the Healthcare ETS 

requirements should be relaxed or 

eliminated based on the vaccination 

status of the individual worker 

involved, the general vaccination rate of 

the entire staff, and/or the general 

vaccination rate of the community. 

OSHA is considering suggestions that 

requirements be relaxed: 

Æ For masking, barriers, or physical 

distancing for vaccinated workers in 

all areas of healthcare settings, not 

just where there is no reasonable 

expectation that someone with 

suspected or confirmed COVID–19 

will be present 

Æ in healthcare settings where a high 

percentage of staff is vaccinated 

(OSHA also is accepting comment on 

what that percentage should be) 

Æ for exposure notification for 

vaccinated employees 

OSHA seeks comment on these 

approaches. 

A.6—Limited Coverage of 

Construction Activities in Healthcare 

Settings: OSHA did not expressly 

include employers that engage in 

construction work in hospitals, longterm care facilities and other settings 

that are covered by the ETS. The 

construction industry was not included 

in OSHA’s industrial profile for the rule. 

OSHA is considering clarifying this 

coverage and seeks comment on this 

approach. For example, OSHA is 

considering the same coverage for 

workers engaged in construction work 

inside a hospital (e.g., installing new 

ventilation or new equipment or adding 

a new wall) as for workers engaged in 

maintenance work or custodial tasks in 

the same facility. OSHA could consider 

exceptions for construction work in 

isolated wings or other spaces where 

construction employees would not be 

exposed to patients or other staff. 

A.7—Recordkeeping and Reporting: 

New Cap for COVID–19 Log Retention 

Period: The COVID–19 log and reporting 

provisions, 29 CFR 1910.502(q)(2)(ii), 

(q)(3)(ii)–(iv), and (r), have remained in 

effect because OSHA found good cause 

to forgo notice and comment in light of 

the grave danger presented by the 

pandemic. See 86 FR 32559. Now that 

OSHA is re-opening the comment 

period for the final rule, the agency also 

seeks additional comment on 

1910.502(q) and (r). In general, OSHA is 

focused on whether any adjustments to 

those paragraphs should be made in 

light of experiences involving the Delta 

or Omicron variants. In addition, the 

agency proposes to cap the record 

retention period for the COVID–19 log at 

one year from the date of the last entry 

in the log, rather than the current 

approach in which that retention period 

is tied to the duration of the standard 

(see 29 CFR 1910.502(q)(2)(ii)(C)). 

A.8—Triggering Requirements Based 

on the Level of Community 

Transmission: When employees are 

treating people with suspected or 

confirmed COVID–19, the ETS requires 

certain control strategies (e.g., PPE) 

regardless of community transmission 

levels. Under the CDC’s current 

guidance for healthcare workers,1 many 

requirements for those workers are 

triggered based on the level of 

community transmission of COVID–19 

(e.g., controls needed in areas of 

substantial or high transmission, 

controls not needed in areas of low or 

moderate transmission). OSHA is 

considering linking regulatory 

requirements to measures of local risk, 

such as CDC’s community transmission 

used in CDC’s guidance for healthcare 

settings or the CDC’s COVID–19 

Community Levels used in CDC’s 

guidance for prevention measures in 

community settings.2 OSHA is seeking 

comment on that approach, including 

impacts of such an approach on 

compliance and enforcement. 

A.9—Evolution of SARS–CoV–2 into a 

Second Novel Strain: It is possible that 

a future variant of SARS–CoV–2 will 

have sufficient genetic drift to be 

designated another novel coronavirus 

strain but still results in a disease that 

is similar to the current illness (e.g., a 

hypothetical ‘‘COVID–22’’). OSHA is 

considering specifying that this final 

standard would apply not only to 

COVID–19, but also to subsequent 

related strains of the virus that are 

transmitted through aerosols and pose 

similar risks and health effects. OSHA 

seeks comment on this approach and 

alternatives to addressing the potential 

for new strains related to SARS–CoV–2. 

B. Additional Information/Data 

Requested 

OSHA recognizes that the majority of 

the comment period occurred prior to 

when the Delta and Omicron variants 

became prevalent in the United States. 

OSHA requests new studies or data 

related to the Delta and Omicron 

variants since the close of the initial 

comment period in August 2021, 

particularly with respect to: 

B.1: The average number of days 

healthcare workers have taken away 

from work resulting from a COVID– 


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19 infection or quarantine and the 

percentage of healthcare workers 

who have taken days away from 

work due to a COVID–19 infection 

or quarantine 

B.2: The health effects for fully 

vaccinated employees, and fully 

vaccinated and boosted employees, 

who test positive for COVID–19, 

including data on days away from 

work, hospitalizations, long COVID, 

and fatalities 

B.3: The percentage of healthcare 

workers who are at elevated risk of 

severe COVID–19 infections (e.g., 

resulting in hospitalization or 

extended days away from work), 

including for age-related or 

immunocompromised reasons (not 

based solely on vaccination status) 

B.4: The rate of infection, long COVID, 

hospitalization, and death among 

healthcare workers compared to 

those rates among the general adult 

population 

B.5: The health effects and transmission 

rate of new and emerging variants 

and sub-lineages of variants, 

including Omicron BA.2 

Additionally, OSHA requests data and 

information on: 

B.6: The vaccination rate among 

healthcare workers, including the 

rate of healthcare workers who are 

fully vaccinated and boosted 

B.7: The clinical indicators that will 

reliably predict the degree of 

protection afforded by prior 

infection (i.e., infection-acquired 

immunity), and how long such 

protection lasts 

B.8: Vaccine efficacy and how such 

efficacy decreases over time 

B.9: The appropriate periodicity of 

additional vaccine doses and 

booster doses 

B.10: Unintended consequences, such as 

decreases in staffing retention, or 

other impacts, such as increases in 

staffing retention, due to the 

potential alternatives raised in this 

notice 

C. Information for Economic Analysis 

C.1 Industry Profile: For the 

Healthcare ETS Industry Profile, OSHA 

based the number of Affected 

Employees for Affected Industries on 

whether employees performed 

healthcare services or healthcare 

support services under the ETS. If 

employees did not perform healthcare 

services or healthcare support services, 

OSHA did not consider them Affected 

Employees. See 86 FR 32485. While this 

approach covered the appropriate North 

American Industry Classification 

System (NAICS), the approach may have 

resulted in an underestimate of Affected 

Employees. As stated in 29 CFR 

1910.502(a), ‘‘this section applies to all 

settings where any employee provides 

healthcare services or healthcare 

support services.’’ To address this 

potential underestimate for the final 

rule, OSHA is considering revising its 

approach to base the number of Affected 

Employees on setting, rather than 

occupation. OSHA seeks comment on 

this potential approach. 

C.1.1—Covered Industries 

C.1.1A: OSHA acknowledged in the 

Healthcare ETS that it did not 

‘‘determine[ ] how many non-hospital 

ambulatory care providers will screen 

patients for COVID–19 infections and 

symptoms, and therefore might be fully 

exempt from the standard under 

paragraph (a)(2)(iii)’’ of the ETS (86 FR 

at 32485). While OSHA included in the 

Healthcare ETS Industry Profile several 

NAICS outside of healthcare where 

embedded clinics are prevalent, such as 

schools, OSHA did not include a 

number of industries that may have 

settings with embedded clinics (e.g., 

embedded clinics in manufacturing 

facilities) in the industry profile. The 

Healthcare ETS applies to these 

embedded clinics, as OSHA made clear 

both in the regulatory text and the 

Summary and Explanation for the ETS. 

See 29 CFR 1910.502(a)(3)(i); 86 FR at 

32563. To address this, OSHA is 

considering including these industries 

in the final rule’s industry profile. 

OSHA notes that compliance with the 

final rule for these industries would 

most likely result in minimal costs or no 

costs because, under the Healthcare 

ETS, OSHA anticipated that many 

embedded clinics will be fully exempt 

under the non-hospital ambulatory care 

exception; and, if the rule applies, it 

will apply only with respect to 

embedded clinics and not the entire 

facility. OSHA seeks comment on this 

potential approach. 

C.1.1B: As discussed above, OSHA 

noted in the Healthcare ETS that it did 

not determine ‘‘how many non-hospital 

ambulatory care providers will screen 

patients for COVID–19 infections and 

symptoms, and therefore be fully 

exempt from this rule under paragraph 

(a)(2)(iii)’’ (86 FR at 32485). OSHA also 

noted that ‘‘[t]o the extent that providers 

meet these exemption criteria, they will 

incur no costs for compliance with 

respect to these settings,’’ and that 

‘‘[t]herefore, for this subset of 

establishments, the costs presented in 

OSHA’s analysis will be dramatic 

overestimates (i.e., OSHA assumes full 

costs where costs should be zero).’’ (Id.) 

For the final rule, OSHA is considering 

estimating the number of employers 

subject to this exemption, if it remains 

in the standard, but seeks information 

and data to support such an estimate. 

C.1.2 Telework Employees: In the 

Healthcare ETS, OSHA accounted for 

reduced employee exposure due to 

telework for benefits, but did not 

explicitly account for telework in the 

number of employees affected by the 

final rule in the Industry Profile. This 

may have resulted in an overestimate of 

several employee-based costs, like the 

costs of respirators and personal 

protective equipment, because OSHA 

may have overestimated the number of 

employees affected by the final rule. In 

the Vaccination and Testing ETS, OSHA 

adjusted its telework estimates to reflect 

then-current teleworking conditions (see 

86 FR 61462–61467). OSHA is 

considering making similar adjustments 

to the final Healthcare rule to estimate 

the current number of employees who 

telework. OSHA seeks comment on this 

potential approach. 

C.2 Costs 

C.2.1—One-time costs: OSHA 

requests comments on the extent to 

which some costs (e.g., costs associated 

with initial training, upgrading 

ventilation, rule familiarization, 

COVID–19 Plan development, 

respiratory protection program 

development) have already been 

incurred to comply with the ETS. OSHA 

further requests comments on the extent 

to which employers and other entities 

will bear ongoing costs (e.g., ongoing 

costs associated with training, PPE, 

respirators and the respiratory 

protection program, medical removal 

protection, COVID–19 plan monitoring 

and modification, and ventilation 

maintenance) under a final rule. 

C.2.2—Age Group 65–74 

C.2.2A: OSHA had not included 

employees in the age group 65–74 in the 

economic analysis of the Healthcare 

ETS out of concern that the populationwide average of workers in this age 

bracket would overcount the number of 

such workers in this sector. See 86 FR 

at 61470 n. 32. OSHA is rethinking this 

approach for the Healthcare final rule 

and seeks comment on including this 

age group in the analysis of both costs 

and benefits. 

C.2.2B: OSHA will likely update its 

estimates to reflect the current baseline 

of vaccinated employees (for example, 

to incorporate the effects of the CMS 

vaccine-mandate rule on vaccination 

rates). OSHA will likely rely on the 

most recent CDC COVID–19 data 

tracker, as it did for the Healthcare ETS 

and the Vaccination and Testing ETS, 


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16430 Federal Register / Vol. 87, No. 56 / Wednesday, March 23, 2022 / Rules and Regulations 

3Levi ML et al. (2021, September 25). COVID–19 

mRNA vaccination, reactogenicity, work-related 

absences and the impact on operating room staffing: 

A cross-sectional study. Perioperative Care and 

Operating Room Management preprint. https://

doi.org/10.1016/j.pcorm.2021.100220. 

4 Kaiser Health News and the Guardian. (2021, 

April). Lost on the Frontline. The Guardian. https:// 

www.theguardian.com/us-news/ng-interactive/ 

2020/aug/11/lost-on-the-frontline-covid-19- 

coronavirus-us-healthcare-workers-deathsdatabase. 

5CDC Daily Tracker: Daily Tracker Home: https:// 

covid.cdc.gov/covid-data-tracker/#datatrackerhome. 

6COVID–19 Weekly Cases and Deaths per 

100,000 Population by Age, Race/Ethnicity, and 

Sex: https://covid.cdc.gov/covid-data-tracker/ 

#demographicsovertime. 

7 Demographic Trends of COVID–19 cases and 

deaths in the U.S. reported to CDC: https://

covid.cdc.gov/covid-data-tracker/#demographics. 

8Trends in COVID–19 Cases and Deaths in the 

United States, by County-level Population Factors 

Maps, charts, and data provided by CDC: https:// 

covid.cdc.gov/covid-data-tracker/#pop-factors_

7daynewcases. 

9Rates of COVID–19 Cases and Deaths by 

Vaccination Status: https://covid.cdc.gov/coviddata-tracker/#rates-by-vaccine-status. 

10https://covid.cdc.gov/covid-data-tracker/ 

#covidnet-hospitalizations-vaccination. 

11https://covid.cdc.gov/covid-data-tracker/ 

#cases_casesper100klast7days. 

12Nationwide COVID–19 Infection-Induced 

Antibody Seroprevalence (Commercial 

laboratories): https://covid.cdc.gov/covid-datatracker/#national-lab. 

13Nationwide COVID–19 Infection- and 

Vaccination-Induced Antibody Seroprevalence 

(Blood donations): https://covid.cdc.gov/coviddata-tracker/#nationwide-blood-donorseroprevalence. 

14 Kaiser Health News and the Guardian. (2021, 

April). Lost on the Frontline. The Guardian. https:// 

www.theguardian.com/us-news/ng-interactive/ 

2020/aug/11/lost-on-the-frontline-covid-19- 

coronavirus-us-healthcare-workers-deathsdatabase. 

15https://www.census.gov/programs-surveys/cps/ 

data.html. 

16https://www.brookings.edu/blog/up-front/2020/ 

08/13/the-covid-19-public-health-and-economiccrises-leave-vulnerable-populations-exposed/. 

17https://static1.squarespace.com/static/ 

57c9d7602994ca1ac7d06b71/t/ 

60243c4a2c291024fa12e979/1612987471528/UW_

IRP_Grooms_Feb_2021.pdf. 

18Household Pulse Survey: Measuring Social and 

Economic Impacts during the Coronavirus 

Pandemic: https://www.census.gov/programssurveys/household-pulse-survey.html. 

19https://www.cdc.gov/nchs/data_access/ftp_

data.htm. 

20https://www.census.gov/programs-surveys/acs/ 

data.html. 

21https://web.uri.edu/optum/. 

and may also rely on estimates or data 

from CMS or other credible sources, to 

update its estimates. OSHA seeks 

comment on whether there is other data 

OSHA should rely on. 

C.2.3—Ancillary Costs 

C.2.3A: In the Healthcare ETS, OSHA 

offset the cost to employers associated 

with medical removal and vaccination 

support with tax credits employers 

would receive. OSHA is considering 

how to adjust its methodology in the 

final rule given the expiration of these 

tax credits and seeks data and 

information on this issue. OSHA notes 

that it could take an approach similar to 

the one it took in the Vaccination and 

Testing ETS, i.e., by estimating the 

number of employers that would (and 

would not) incur costs because 

employees could be required to use 

accrued sick leave benefits for medical 

removal and vaccination support 

(Compare 86 FR 32512 (including 

footnote 61) with 86 FR 61480). 

C.2.3B: OSHA is considering updating 

the manner in which it estimates side 

effects associated with vaccine doses 

using CDC estimates (86 FR 32513 & 

n.63). OSHA is considering following an 

approach similar to the one it followed 

in the Vaccination and Testing ETS (86 

FR 61480) where OSHA calculated the 

estimated time off using a more recent 

study that surveyed workers at a statewide healthcare system who had been 

vaccinated.3 OSHA seeks data and 

information on this issue. 

C.3 Benefits Data Sources: For the 

final rule, OSHA is considering using 

CDC COVID–19 case and fatality data 

which was unavailable when the 

Healthcare ETS was initially issued, and 

seeks comment on this issue. OSHA 

based the Vaccination and Testing ETS 

impact analysis on the CDC data which 

tabulates the respective number of cases 

and fatalities for the unvaccinated and 

vaccinated populations. 

OSHA also seeks information and 

data on cases, illnesses, 

hospitalizations, and fatalities that are 

specific to employees that would be 

subject to the final rule (i.e., those in the 

healthcare field). OSHA notes that it is 

aware of one potential source that 

measured deaths in healthcare 

occupations during the first year of the 

pandemic.4

OSHA is considering using all sources 

of data on which it relied in the 

Healthcare ETS and the Vaccination and 

Testing ETS, as well some new data 

sources it did not rely on, including, for 

example: 

• CDC Daily Tracker: Daily Tracker 

Home,5

• Demographic Trends of COVID–19 

cases and deaths in the US reported to 

CDC,678

• Rates of COVID–19 Cases and 

Deaths by Vaccination Status,9

• Rates of laboratory-confirmed 

COVID–19 hospitalizations by 

vaccination status,10

• United States COVID–19 Cases, 

Deaths, and Laboratory Testing (NAATs) 

by State, Territory, and Jurisdiction,11

• Nationwide COVID–19 InfectionInduced Antibody Seroprevalence,12 13

• Kaiser Health News/UK Guardian,14

• US Census: Current Population 

Statistics,15

• The National Panel Study of 

COVID–19 (NPSC19),16 17

• Census Bureau Household Pulse 

Survey,18

• National Center for Health 

Statistics,19

• American Community Survey,20

and 

• Optum Clinformatics Data Mart.21

C.4 Small Business: In developing 

the Final Regulatory Flexibility Analysis 

(FRFA), OSHA is seeking comments on 

whether there are specific issues 

regarding small covered healthcare 

entities (i.e., small businesses, small 

non-profits, and small government 

jurisdictions) that OSHA should 

consider, particularly with respect to 

the technical or economic feasibility of 

complying with a possible revised rule. 

C.5—Assumptions 

C.5.1 Vaccine Efficacy: For the 

Healthcare ETS, OSHA accounted for 

vaccine efficacy in its benefits analysis. 

For the final rule, OSHA is considering 

accounting for booster efficacy using the 

CDC Data Tracker, which was the same 

source for determining vaccine efficacy. 

OSHA seeks comment on this potential 

approach and data on which to update 

its estimates. 

C.5.2 Frequency, Severity, and 

Distribution of Infections: There was 

‘‘still some uncertainty surrounding the 

frequency and severity of COVID–19 

infections and their distribution’’ when 

the Healthcare ETS was issued (86 FR 

32545), so OSHA focused that economic 

analysis on hospitalizations and 

fatalities. More time and data have 

brought more certainty regarding other 

outcomes, so for the final rule OSHA is 

considering also accounting in its 

economic analysis for COVID–19-related 

long-term effects (i.e., long COVID), 

hospitalization, and shorter illness (due 

to variants, increased vaccinations, and 

improved treatments). Additionally, 

OSHA is considering using an approach 

similar to that in the Vaccination and 

Testing ETS, where OSHA took account 

of breakthrough cases and fatalities in 

vaccinated employees when it assessed 

the health impacts. OSHA seeks 

comment and data on these potential 

modifications. 

II. Informal Public Hearing—Purpose, 

Rules, and Procedures 

One commenter requested that OSHA 

hold a public hearing on the 


jspears on DSK121TN23PROD with RULES1
Federal Register / Vol. 87, No. 56 / Wednesday, March 23, 2022 / Rules and Regulations 16431 

rulemaking. See OSHA–2020–0004– 

1034, Attachment 1. OSHA has agreed 

to do so. OSHA invites interested 

persons to participate in this rulemaking 

by providing oral testimony and 

documentary evidence at the informal 

public hearing to provide the agency 

with the best available evidence to use 

in developing the final rule. 

Pursuant to 29 CFR 1911.15(a) and 5 

U.S.C. 553(c), members of the public 

have an opportunity at the informal 

public hearing to provide oral testimony 

and evidence on issues raised by the 

proposal. An administrative law judge 

(ALJ) presides over each OSHA hearing 

and will resolve any procedural matters 

relating to the hearing. 

OSHA’s regulation governing public 

hearings (29 CFR 1911.15) establishes 

the purpose and procedures of informal 

public hearings. Although the presiding 

officer of the hearing is an ALJ and 

questioning of witnesses may be 

allowed on crucial issues, the 

proceeding is largely informal and 

essentially legislative in purpose. 

Therefore, the hearing provides 

interested persons with an opportunity 

to make oral presentations in the 

absence of rigid procedures that could 

impede or protract the rulemaking 

process. The hearing is not an 

adjudicative proceeding subject to the 

Federal Rules of Evidence. Instead, it is 

an informal administrative proceeding 

convened for the purpose of gathering 

and clarifying information. Accordingly, 

questions of relevance, procedure, and 

participation generally will be resolved 

in favor of developing a clear, accurate, 

and complete record within the 

available time frame. 

The available time frame for this 

rulemaking is short as the agency hopes 

to complete the rulemaking as quickly 

as possible. OSHA remains aware of the 

dangers to healthcare workers exposed 

to COVID–19, as well as the potential 

for new variants and the surges of 

patients with COVID–19 that could 

follow in healthcare. Pursuant to 29 CFR 

1911.4, the Assistant Secretary may, on 

reasonable notice, issue additional or 

alternative procedures to expedite the 

proceedings. 

Although the ALJ presiding over the 

hearing makes no decision or 

recommendation on the merits of the 

proposal, the ALJ has the responsibility 

and authority necessary to ensure that 

the hearing progresses at a reasonable 

pace and in an orderly manner. To 

ensure a full and fair hearing, the ALJ 

has the power to regulate the course of 

the proceedings; dispose of procedural 

requests, objections, and comparable 

matters; confine presentations to matters 

pertinent to the issues the proposed rule 

raises; use appropriate means to regulate 

the conduct of persons present at the 

hearing; question witnesses and permit 

others to do so; limit such questioning; 

and leave the record open for a 

reasonable time after the hearing for the 

submission of additional data, evidence, 

comments, and arguments from those 

who participated in the hearing (29 CFR 

1911.16). 

At the close of the hearing, there will 

be a post-hearing comment period 

during which stakeholders may submit 

final briefs, arguments, summations, 

and additional data and information to 

OSHA. 

III. Notice of Intention To Appear at the 

Hearing 

Interested persons who intend to 

provide oral testimony or documentary 

evidence at the hearing must file a 

written NOITA prior to the hearing and 

in accordance with the instructions in 

the ADDRESSES section earlier in this 

document. To testify at the hearing, 

interested persons must electronically 

submit their NOITA on or before April 

6, 2022. The NOITA must provide the 

following information: 

(1) Name, address, email address, and 

telephone number of each individual 

who will give oral testimony; 

(2) Name of the establishment or 

organization each individual represents, 

if any; 

(3) Occupational title and position of 

each individual testifying; and 

(4) A brief statement of the position 

each individual will take with respect to 

the issues raised by the ETS (e.g., ‘‘I 

generally support/oppose the whole 

standard,’’ ‘‘the requirement for 

[specific provision] should be 

removed,’’ ‘‘the scope of the rule should 

be changed to include/exclude . . .’’). 

The agency will consider the 

information in each submission when 

setting the hearing schedule. Before the 

hearing, OSHA will make the hearing 

procedures and hearing schedule 

available at https://www.osha.gov/ 

coronavirus/healthcare/rulemaking and 

in the docket. OSHA emphasizes that 

the hearing is open to the public; 

however, only individuals who file a 

NOITA may testify at the hearing. 

IV. Certification of the Hearing Record 

and Agency Final Determination 

Following the close of the hearing and 

the post-hearing comment period, the 

ALJ will certify the record to the 

Assistant Secretary of Labor for 

Occupational Safety and Health. The 

record will consist of all of the written 

comments, oral testimony, and 

documentary evidence received during 

the proceeding. The ALJ, however, will 

not make or recommend any decisions 

as to the content of the final standard. 

Following certification of the record, 

OSHA will review all the evidence 

received into the record and will issue 

the final rule based on the record as a 

whole. 

Authority and Signature 

This document was prepared under 

the direction of Douglas L. Parker, 

Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, 200 Constitution 

Avenue NW, Washington, DC 20210. It 

is issued under the authority of sections 

4, 6, and 8 of the Occupational Safety 

and Health Act of 1970 (29 U.S.C. 653, 

655, 657); Secretary of Labor’s Order No. 

8–2020 (85 FR 58393 (Sept. 18, 2020)); 

29 CFR part 1911; and 5 U.S.C. 553. 

Douglas L. Parker, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

[FR Doc. 2022–06080 Filed 3–22–22; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2022–0180] 

Safety Zone; March Madness 

Fireworks Display, New Orleans, LA 

AGENCY: Coast Guard, DHS. 

ACTION: Notification of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

a temporary safety zone for a fireworks 

display located on the navigable waters 

of the Lower Mississippi River between 

Mile Marker (MM) 94.5 to 95.5. This 

action is needed to provide for the 

safety of life on these navigable 

waterways during the event. During the 

enforcement periods, the operator of any 

vessel in the regulated area must 

comply with directions from the 

Captain of the Port or designated 

representative. 

DATES: The regulations in 33 CFR 

165.845 will be enforced from 9:30 p.m. 

to 11 p.m. on April 3, 2022. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this 

notification of enforcement, call or 

email Lieutenant Commander William 

Stewart, Sector New Orleans, U.S. Coast 

Guard; telephone 504–365–2246, email 

William.A.Stewart@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce safety zone located 


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