82 FR 35995 - Jardon and Howard Technologies, Incorporated; Application for Permanent Variance and Interim Order; Grant of Interim Order; Request for Comments
DEPARTMENT OF LABOR
Occupational Safety and Health Administration Federal Register Volume 82, Issue 147 (August 2, 2017)
Occupational Safety and Health Administration
Federal Register Volume 82, Issue 147 (August 2, 2017)
| Page Range | 35995-36005 | |
| FR Document | 2017-15876 |
[Federal Register Volume 82, Number 147 (Wednesday, August 2, 2017)] [Notices] [Pages 35995-36005] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-15876] ----------------------------------------------------------------------- DEPARTMENT OF LABOR Occupational Safety and Health Administration [Docket No. OSHA-2015-0024] Jardon and Howard Technologies, Incorporated; Application for Permanent Variance and Interim Order; Grant of Interim Order; Request for Comments AGENCY: Occupational Safety and Health Administration (OSHA), Labor. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: In this notice, the Occupational Safety and Health Administration (``OSHA'' or ``the Agency'') announces the application of Jardon and Howard Technologies, Incorporated (``JHT'' or ``the applicant'') for a permanent variance from several provisions in OSHA's standards that regulate commercial diving operations. Additionally, the applicant requests an interim order based on the conditions specified in the variance application. JHT's variance request is based on the conditions that were specified in the alternate standards that OSHA granted to the National Oceanic and Atmospheric (NOAA) on September 5, 2014. OSHA announces its preliminary finding to grant the permanent variance, and also announces that it is granting the applicant's request for an interim order. OSHA invites the public to submit comments on whether to grant the applicant a permanent variance based on the conditions specified in the notice. DATES: Submit comments, information, documents in response to this notice, and request for a hearing on or before September 1, 2017. The interim order specified by this notice becomes effective on August 2, 2017, and shall remain in effect until it is modified or revoked, or until OSHA publishes a decision on the permanent variance application, whichever occurs first. ADDRESSES: Submit comments by any of the following methods: 1. Electronically: Submit comments and attachments electronically at http://www.regulations.gov, which is the Federal eRulemaking portal. Follow the instructions online for making electronic submissions. 2. Facsimile: If submissions, including attachments, are not longer than 10 pages, commenters may fax them to the OSHA Docket Office at (202) 693-1648. 3. Regular or express mail, hand delivery, or messenger (courier) service: Submit comments, requests, and any attachments to the OSHA Docket Office, Docket No. OSHA-2015-0024, Technical Data Center, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-2625, Washington, DC 20210; telephone: (202) 693-2350 (TTY number: (877) 889- 5627). Note that security procedures may result in significant delays in receiving comments and other written materials by regular mail. Contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express mail, hand delivery, or messenger service. The hours of operation for the OSHA Docket Office are 10:00 a.m.-2:30 p.m. 4. Instructions: All submissions must include the Agency name and the OSHA docket number (OSHA-2015-0024). OSHA places comments and other materials, including any personal information, in the public docket without revision, and these materials will be available online at http://www.regulations.gov. Therefore, the Agency cautions commenters about submitting statements they do not want made available to the public, or submitting comments that contain personal information (either about themselves or others) such as Social Security numbers, birth dates, and medical data. 5. Docket: To read or download submissions or other material in the docket, go to http://www.regulations.gov or the OSHA Docket Office at the address above. All documents in the docket are listed in the http://www.regulations.gov index; however, some information (e.g., copyrighted material) is not publicly available to read or download through the Web site. All submissions, including copyrighted material, are available for inspection at the OSHA Docket Office. Contact the OSHA Docket Office for assistance in locating docket submissions. 6. Copies of this Federal Register notice: Electronic copies of the Federal Register notice are available at http://www.regulations.gov. This Federal Register notice, as well as new releases and other relevant information, also are available at OSHA's Web page at http://www.osha.gov. 7. Extension of comment period: Submit requests for an extension of the comment period on or before September 1, 2017 to the Office of Technical Programs and Coordination Activities, Directorate of Technical Support and Emergency Management, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-3655, Washington, DC 20210, or by fax to (202) 693- 1644. [[Page 35996]] 8. Hearing requests: According to 29 CFR 1905.15, hearing requests must include: (1) A short and plain statement detailing how the variance would affect the requesting party; (2) a specification of any statement or representation in the variance application that the commenter denies, and a concise summary of the evidence adduced in support of each denial; and (3) any views or arguments on any issue of fact or law presented in the variance application. FOR FURTHER INFORMATION CONTACT: Information regarding this notice is available from the following sources: Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office of Communications, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-3647, Washington, DC 20210; telephone: (202) 693-1999; email: meilinger.francis2@dol.gov. General and technical information: Contact Mr. Kevin Robinson, Director, Office of Technical Programs and Coordination Activities, Directorate of Technical Support and Emergency Management, Occupational Safety and Health Administration phone: (202) 693-2110 or email: robinson.kevin@dol.gov. SUPPLEMENTARY INFORMATION: I. Notice of Application On September 25, 2015, Jardon and Howard Technologies, Incorporated, (``JHT'' or ``the applicant''), submitted an application for a permanent, multi-state variance under Section 6(d) of the Occupational Safety and Health Act of 1970 (``OSH Act''; 29 U.S.C. 655) and 29 CFR 1905.11 (``Variances and other relief under section 6(d)''), from provisions of OSHA's commercial diving operations (CDO) standard that regulate the use of inflatable flotation devices and decompression chambers (Exhibit OSHA-2015-0024-0001, Request for Variance). JHT's application also requested an interim order pending OSHA's decision on the variance application. JHT's corporate offices are located at 2710 Discovery Drive, Suite 600, Orlando, FL 32826, and JHT also identified two field office locations as places of employment involved in its variance application: (1) NOAA/NOS Center for Coastal Fisheries and Habitat Research, 101 Pivers Island Road, Beaufort, North Carolina, 28516; and (2) NOAA CCFHBR Laboratory, 219 Fort Johnson Road, Charleston, South Carolina, 29412. After receiving JHT's variance application, OSHA sent two rounds of follow-up questions to JHT, on October 13, 2015 and June 27, 2016, to which JHT responded on November 16, 2015 and July 27, 2016, respectively (see Exhibits OSHA-2015-0024- 0002, OSHA-2015-0024-0004, OSHA-2015-0024-0003, and OSHA-2015-0024- 0005). Specifically, the applicant seeks a permanent variance and interim order from the provisions of OSHA's CDO standard that require: (1) A buoyancy compensator to have an inflation source separate from the breathing gas supply when used for SCUBA diving (29 CFR 1910.430(d)(3)); (2) use of an inflatable flotation device capable of maintaining the diver at the surface in a face-up position, having a manually activated inflation source independent of the breathing supply, an oral inflation device, and an exhaust valve (29 CFR 1910.430(d)(4)); (3) the employer to instruct the diver to remain awake and in the vicinity of the decompression chamber which is at the dive location for at least one hour after the dive (including decompression or treatment as appropriate) for any dive outside the no-decompression limits, deeper than 100 feet of sea water (fsw), or using mixed gas as a breathing mixture (29 CFR 1910.423(b)(2)); (4) the employer to make available at the dive location a decompression chamber capable of recompressing the diver at the surface to a minimum of 165 fsw (6 ATA) (29 CFR 1910.423(c)(1)); \1\ --------------------------------------------------------------------------- \1\ The full text of 29 CFR 1910.423(c)(1)(i)-(iii) reads: ``A decompression chamber capable of recompressing the diver at the surface to a minimum of 165 fsw (6 ATA) shall be available at the dive location for: (i) Surface-supplied air diving to depths deeper than 100 fsw and shallower than 220 fsw; (ii) Mixed gas diving shallower than 300 fsw; (iii) Diving outside the no-decompression limits shallower than 300 fsw.'' --------------------------------------------------------------------------- (5) the employer to make available within 5 minutes of the dive location a dual-lock, multiplace decompression chamber (29 CFR 1910.423(c)(3)); and (6) that self-contained underwater breathing apparatus (SCUBA) diving not be conducted at depths deeper than 100 fsw or outside the no-decompression limits unless a decompression chamber is ready for use (29 CFR 1910.424(b)(2)). JHT is a contractor for the U.S. Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), a federal government agency that conducts and promotes undersea research using a variety of modes, including diving operations. On September 5, 2014, OSHA granted NOAA alternate standards \2\ regulating its use of inflatable flotation devices and decompression chambers during NOAA diving operations (Exhibit OSHA-2015-0024-0003, OSHA's Comments and Decisions to NOAA's Request for an Alternate Standard on Diving) (``NOAA Alternate Diving Standards''). To account for the technological advances and design improvements that have been made to buoyancy compensatory devices (BCDs) since OSHA first published its CDO standard in 1977 (see 42 FR 37662 (July 22, 1977)), the NOAA Alternate Diving Standards permit NOAA to use modern BCDs during diving operations that deviate from the configuration requirements in OSHA's CDO standard, but provide equal or greater safeguards to the diver. The NOAA Alternate Diving Standards also provide NOAA with modified requirements regarding the use of decompression chambers, including expanding the depth limit for SCUBA dives within the no-decompression limits \3\ (from 100 to 130 feet of sea water (fsw)), and modifying decompression chamber availability requirements for certain no-decompression dives up to 130 fsw in depth. --------------------------------------------------------------------------- \2\ An alternate standard is the federal agency equivalent to a variance, and federal agency heads may seek and obtain alternate standards from OSHA pursuant to 29 CFR 1960.17. \3\ The definitions provided in Subpart T, 29 CFR 1910.402, define ``no-decompression limits'' as ``the depth-time limits of the `no-decompression limits and repetitive dive group designation table for no-decompression air dives', U.S. Navy Diving Manual, or equivalent limits which the employer can demonstrate to be equally effective.'' --------------------------------------------------------------------------- JHT's divers who conduct diving operations for NOAA typically dive from NOAA-operated ``uninspected vessels'' in U.S. navigable waters; such diving operations fall under OSHA's jurisdiction.\4\ When conducting dives for NOAA, JHT divers are obliged to follow all of the requirements of the NOAA Diving Program (NDP), which include the NOAA Alternate Diving Standards. JHT therefore seeks the interim order and permanent variance from the provisions of OSHA's CDO standard based on the conditions that apply to NOAA divers under the NOAA Alternate Diving Standards, thus permitting JHT's divers to dive under the same standards as their NOAA-employed colleagues. --------------------------------------------------------------------------- \4\ For more information on OSHA's enforcement authority over uninspected vessels on U.S. navigable waters, see OSHA Directive Number: CPL-02-01-047, ``OSHA Authority over Vessels and Facilities on or Adjacent to U.S. Navigable Waters and the Outer Continental Shelf (OCS)'' [Dated: 02/22/2010], available at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=4254. --------------------------------------------------------------------------- The applicant contends that the proposed variance conditions outlined in its application provide its workers with a place of employment that is at least as safe and healthful as they would obtain under the existing provisions of OSHA's CDO standard. The applicant certifies that it provided affected [[Page 35997]] workers with a copy of the variance application. In addition, the applicant informed its workers and their representatives of their right to petition the Assistant Secretary of Labor for Occupational Safety and Health for a hearing on the variance application. The applicant also certified that it is not contesting any citations involving the standards that are the subject of this application. II. NOAA's Alternate Diving Standards and JHT's Variance Application A. Background In June 2011, NOAA submitted an application to OSHA proposing a total of 12 alternate standards to 29 CFR 1910, Subpart T, and included with its application extensive introductory, background, and explanatory information in support of the application (see Exhibit OSHA-2015-0024-0006, Proposed Alternate Diving Standards for the National Oceanic and Atmospheric Administration). After fully considering NOAA's application and its responses to OSHA's follow up questions (see Exhibit OSHA-2015-0024-0007, Responses from the NOAA Diving Program to OSHA Regarding Requested Alternate Standards for Commercial Diving Operations), OSHA decided to grant some, but not all, of the alternate standards that NOAA proposed (see Exhibit OSHA-2015- 0024-0008). JHT now seeks an interim order and permanent variance based on six of the alternate standards that OSHA granted to NOAA in the NOAA Alternate Diving Standards. Because JHT's application proposes to adopt the same conditions under which OSHA granted the alternate standards to NOAA, JHT's application included as an attachment the introductory, background, and explanatory material that NOAA previously submitted to OSHA with its initial application. NOAA explained in its application materials that it conducts dives under two major programs: The NOAA Diving Program (NDP) and the National Undersea Research Program (NURP). The NDP primarily supports intramural (within the agency) research programs conducted by personnel within NOAA's major line offices, while NURP primarily supports extramural (outside the agency) research programs conducted by scientists from various academic and marine institutions. The NDP is responsible for overseeing all NOAA and contractor (including JHT) diving personnel, equipment, and activities, and ensuring that dives performed by NOAA and its contractor divers are completed safely and efficiently. The NDP, the NOAA Diving Control and Safety Board, and the NOAA Diving Medical Review Board all work together to ensure that qualified personnel and certified systems are available to safely meet NOAA's undersea research objectives. NOAA's application also explained that it provides a robust training program to NDP divers, including contractor divers. NOAA stated that the primary training program used to prepare NOAA and contractor divers to perform work is NOAA's three-week, 140-hour ``Working Diver'' course, which trains divers to perform a wide range of skills utilizing a variety of power and hand tools and specialized equipment. All NOAA divers and contractors are also required to: (1) Have annual refresher training in oxygen administration (academic and practical components); (2) stay current in CPR/AED and First Aid training; (3) maintain proficiency in diving by making at least three dives per quarter; (4) complete an annual swim test; (5) have their life support gear serviced annually by a certified technician; (6) complete an annual skills test to demonstrate their ability to safely operate underwater; and (7) complete annual rescue drills to demonstrate their ability to surface, extricate, treat and evacuate the victim of a diving accident. NOAA's application further stated that it has developed many advances in diving equipment and procedures that are now widely recognized and accepted as industry best practices. NOAA publishes many of these advances in the ``NOAA Diving Manual: Diving for Science and Technology,'' which serves as a reference manual for all NDP divers. NOAA also maintains two additional manuals (the ``NOAA Scientific Diving Standards and Safety Manual'' and the ``NOAA Working Diving Standards and Safety Manual'') that provide in-depth operational guidance for all dives, and include the standards, policies, regulations, requirements, and responsibilities for all aspects of NOAA's diving operations. Additionally, NOAA stated that OSHA's CDO standard, which was first published in 1977, does not account for many of the advancements that have been made in diving technology and safety. For that reason, NOAA sought alternate standards that would permit the NDP to conduct diving operations using equipment and procedures that reflected modern diving advancements. NOAA also stated that OSHA's regulations are not always consistent with other related federal diving regulations, such as 46 CFR 197, Subpart B, which provides safety and health standards for commercial diving operations conducted from vessels and facilities under the jurisdiction of the U.S. Coast Guard. As a NOAA contractor, JHT asserts that its divers are required to strictly follow the requirements of the NDP, which include following the conditions of the NOAA Alternate Diving Standards. But, even though NOAA-employed and JHT-employed divers work side-by-side during NDP operations, contractor divers (such as those employed by JHT) are not authorized to dive under the NOAA Alternate Diving Standards. JHT states that its divers undergo exactly the same training as NOAA employees who are also part of the NDP, and that there are no differences between NOAA and JHT divers regarding medical clearance procedures and standards, training materials, equipment used, equipment maintenance, and diving procedures used (see Ex. OSHA-2015-0024-0003, p. 1). JHT stated that the majority of the dives that JHT performs under the NDP are ``scientific dives'' that are exempted from OSHA's CDO standard,\5\ but JHT divers also assist NOAA employees with diving operations that are not exempt under OSHA's CDO standard. Accordingly, when JHT conducts dives for NOAA under the NDP that would be subject to OSHA's CDO standard, JHT seeks permission from OSHA to dive under the same standards regulating the use of inflatable flotation devices and decompression changes that apply to NOAA-employed NDP divers, pursuant to the NOAA Alternate Diving Standards. --------------------------------------------------------------------------- \5\ Section 1910.401(a)(2)(iv) of the CDO standard provides the exemption for scientific diving from the CDO standard's coverage, and Appendix B to the CDO standard provides guidelines for identifying the scientific diving programs that are exempt. --------------------------------------------------------------------------- B. Requested Variance From Paragraphs (d)(3) and (d)(4) of 29 CFR 1910.430, Requirements for Inflatable Flotation Devices OSHA's standards regulating the buoyancy control of inflatable flotation devices include requirements that: (1) When used for SCUBA diving, a buoyancy compensator shall have an inflation source separate from the breathing gas supply (29 CFR 1910.430(d)(3)); and (2) an inflatable flotation device capable of maintaining the diver at the surface in a face-up position, having a manually activated inflation source independent of the breathing supply, an oral inflation device, and an exhaust valve shall be used for SCUBA diving (29 CFR 1910.430(d)(4)). [[Page 35998]] Following the terms of the NOAA Alternate Diving Standards, JHT's variance application seeks permission to use modern buoyancy compensator devices (BCDs) that deviate from the requirements in 1910.430(d)(3) and (d)(4) that such devices have an inflation source that is ``separate from'' or ``independent of'' the diver's breathing gas. NOAA's application for the alternate standards explained that the overwhelming majority of commercial-off-the-shelf (COTS) BCDs are designed to use the diver's breathing gas for inflation, making it difficult to comply with OSHA's requirement for a BCD to have an independent inflation source. According to NOAA, older systems that utilize separate, non-breathing gas inflation sources--particularly, carbon-dioxide cartridges--pose potential safety problems for the diver, including potential cartridge failure, and accidental activation, leading to an unexpected and potentially dangerous over- inflation of the BCD, which could cause a rapid and uncontrolled ascent of the diver to the surface. NOAA's application stated that industry recognition of these inherent safety problems prompted manufacturers to discontinue production of systems relying on such inflation sources. NOAA also explained that using a diver's emergency air supply to inflate the BCD is potentially problematic, as connecting the BCD to an auxiliary cylinder would impede a diver who is ``ditching'' components of a SCUBA unit during an emergency, and would also create additional points of potential equipment failure and entanglement. JHT echoed NOAA's concerns regarding the use of BCDs that are inflated by a source other than the diver's breathing gas (see Ex. OSHA-2015-0024-0003, p. 9). The training that NOAA provides to its divers and contractors, including JHT, mitigates the risk of using breathing gas to inflate BCDs. NDP divers are trained to continually monitor their gas supplies and return to the surface with no less than 500 psi in their SCUBA cylinders, and NOAA stated that this practice, which has been used for more than 30 years, has proven to be an effective method for managing a diver's breathing gas. NDP divers are also trained in techniques to manually inflate their BCDs, both underwater and at the surface, to control their buoyancy. NOAA also explained that the amount of gas needed to inflate a BCD is minimal compared to the amount of breathing gas that is available in a standard SCUBA cylinder, and that most BCDs can be fully inflated with a volume of gas equivalent to that consumed in three or fewer breaths, and therefore asserted that taking such small amounts of gas from the SCUBA cylinder would have minimal effect on the duration of a dive. Under the alternate conditions that OSHA granted NOAA in the NOAA Alternate Diving Standards, which JHT adopts as the proposed conditions for the variance, NDP divers may use BCDs that are inflated by the breathing gas supply so long as all divers carry an independent reserve cylinder of breathing gas with a separate regulator, which allows divers to orally inflate their BCDs using gas from their reserve gas supplies even if their primary breathing gas supply is depleted. When granting the NOAA Alternate Diving Standards, OSHA explained that this requirement is consistent with 29 CFR 1910.424(c)(4), which requires SCUBA divers to carry a reserve breathing-gas supply. As OSHA stated in the preamble to the CDO standard final rule (42 FR 37650, 37633), ``[a reserve] supply is essential to the safety of the SCUBA diver,'' and employers must take precautions to ``assure that the air reserve will not be depleted inadvertently during the dive.'' OSHA ultimately concluded that NOAA's proposed alternate standard provides equivalent safety protection to divers as 1910.430(d)(3) so long as the diver carries a reserve breathing gas supply, does not connect the reserve breathing gas to the BCD's inflation source, and uses the BCD in accordance with the manufacturer's instructions. Further, OSHA noted in the NOAA Alternate Diving Standards that 1910.430(d)(4)'s requirement that SCUBA divers use a BCD with a manually activated inflation source (e.g., via a carbon-dioxide cartridge) in addition to an oral inflation device is intended to allow the diver to quickly inflate the BCD in an emergency, but technological improvements in manual BCD power inflators now allow for rapid inflation of BCDs with breathing gas, but with less safety risk (e.g., over-inflation) than using carbon-dioxide cartridges. Using these manual BCD power inflators to inflate a BCD with breathing gas therefore provides protection to a diver that is equivalent to the standard, and obviates the need for 1910.430(d)(4)'s requirement that the BCD's inflation source be independent of the breathing supply. In addition, OSHA stated that NOAA's policy that, except when line-tended, divers never dive alone and always have topside support, expedites the rescue of divers who must make emergency ascents to the surface, thereby reducing their risk of drowning should an inflatable flotation device malfunction. Additionally, JHT's proposed variance conditions would follow the NOAA Alternate Diving Standards by replacing 1910.430(d)(4)'s requirement that BCDs used for SCUBA dives be capable of maintaining the diver at the surface in a ``face-up position'' with a requirement that the BCD be capable of maintaining the diver at the surface in a ``positively buoyant state.'' NOAA's application materials explained that the majority of COTS BCDs available today are not designed to maintain unconscious divers in a face-up position on the surface, as systems capable of meeting that requirement have inherent safety- related problems that lead most manufacturers to abandon them in favor of more modern systems. Specifically, NOAA asserted that the only BCD able to maintain a diver in a face-up position at the surface was the ``horse-collar'' style BCD, which has been widely replaced by jacket-style BCDs (also known as stabilizing, or stab, jackets) or back-mounted systems, both of which have greater operational and safety features compared to the older style. NOAA explained that newer BCDs have more lift, fewer straps (reducing entanglement hazards, particularly when ditching the BCD in an emergency, or when used in conjunction with a weight harness), require fewer steps to don, will not choke divers when fully inflated on the surface, and most significantly, do not impede operation of chest-mounted drysuit inflation valves. Additionally, NOAA explained that the inability of stab-jacket or back-mounted BCDs to maintain a diver in a face-up position is off-set by NOAA's requirement that divers always dive in buddy pairs (or be line-tended), and receive training in the proper technique for inflating their buddy's BCD while keeping their buddy's head face-up during rescues. Accordingly, NOAA stated that the chance of a stricken diver drowning while wearing a BCD that does not provide for face-up flotation is very remote. JHT added that horse-collar BCDs were not originally designed for emergency buoyancy ascents, and many are thus not equipped with the over-pressure relief valves that are essential for safe emergency ascents. When granting the NOAA Alternate Diving Standards, OSHA noted that the preamble to the CDO final rule explained that ``[t]he provision for an inflatable flotation device for SCUBA diving [was] given design specifications because an improperly designed device can be a greater safety hazard than aid'' (42 FR 37650, 37666). BCDs were not [[Page 35999]] commercially available when the CDO standard was published, and OSHA therefore articulated minimum design standards for inflatable flotation devices in the final rule. OSHA agreed in the NOAA Alternate Diving Standards that the flotation design of contemporary BCDs is superior to the equipment that was in use when OSHA published the CDO standard in 1977, and explained that modern BCDs are equipped to maintain a diver at the surface in a positively buoyant state, even if they do not ``prop up'' the diver's head. OSHA thus granted NOAA's proposed alternative standard on the condition that NOAA continues its policy of requiring that SCUBA divers not dive alone unless they are line-tended, and providing topside support to those divers. OSHA determined that those conditions would provide NOAA's divers with protection equivalent to the CDO standard, and JHT's proposed variance includes the very same conditions under which OSHA approved the NOAA's Alternate Diving Standards for NOAA-employed NDP divers. As stated above, there are no differences in the training requirements, medical clearance procedures and standards, equipment use and maintenance requirements, or diving procedures that apply to NOAA- employed and JHT-employed divers who conduct diving operations for the NDP. Additionally, OSHA believes that diver safety is best promoted where diving safety rules are clear and consistently applicable to all divers at a worksite. Accordingly, OSHA accepts JHT's proposal to adopt the conditions from the NOAA Alternate Diving Standards as the basis for its requested variance from the inflatable flotation device requirements in 1910.430(d)(3) and (d)(4), and has preliminarily decided to grant the interim order and permanent variance to JHT on those same conditions. C. Requested Variance From Paragraphs (b)(2), (c)(1), (c)(3) of 29 CFR 1910.423, and (b)(2) of 29 CFR 1910.424, Requirements for Decompression Chambers.\6\ --------------------------------------------------------------------------- \6\ A decompression chamber is ``a pressure vessel for human occupancy such as a surface decompression chamber, closed bell, or deep diving system used to decompress divers and to treat decompression sickness'' (29 CFR 1910.402). --------------------------------------------------------------------------- OSHA's standards regulating the availability and use of decompression chambers require that: (1) For any dive outside the no- decompression limits, deeper than 100 fsw, or using mixed gas as a breathing mixture, the employer shall instruct the diver to remain awake and in the vicinity of the decompression chamber which is at the dive location for at least one hour after the dive (including decompression or treatment as appropriate) (1910.423(b)(2)); (2) for mixed gas diving shallower than 300 fsw, or diving outside the no- decompression limits shallower than 300 fsw, a decompression chamber capable of recompressing the diver at the surface to a minimum of 165 fsw (6 ATA) shall be available at the dive location, and must be dual- lock, multiplace, and accessible within 5 minutes of the dive location (1910.423(c)(1) and (c)(3)(i)-(iii)); and (3) SCUBA dives shall not be conducted at depths deeper than 100 fsw or outside the no-decompression limits unless a decompression chamber is ready for use (1910.424(b)(2)). Adopting the conditions of the NOAA Alternate Diving Standards, JHT's application proposes conditions that would allow it deviate from these decompression chamber availability and capability requirements in OSHA's CDO standard. As OSHA explained when it granted the NOAA Alternate Diving Standards, the purpose of having a decompression chamber available and ready for use at a dive site is to treat decompression sickness (DCS) and arterial gas embolism (AGE). DCS may occur from breathing air or mixed gases at diving depths and durations that require decompression, while AGE may result from over-pressurizing the lungs, usually following a rapid ascent to the surface during a dive without proper exhalation. In the event that DCS or AGE develops, a decompression chamber, oxygen or treatment gas mixtures, and treatment tables and instructions must be readily available to treat these conditions effectively. Decompression chambers provide the most effective therapy--recompression--for DCS and AGE. First, JHT's proposed variance would adopt the conditions of the NOAA Alternate Diving Standards that permit NOAA to deviate from the requirement of 1910.423(b)(2) that the employer instruct all divers who dive deeper than 100 fsw remain awake and in the vicinity of a decompression chamber for one hour after the dive, and the requirement of 1910.424(b)(2) that SCUBA diving not be conducted at depths deeper than 100 fsw or outside the no-decompression limits unless a decompression chamber is ``ready for use.'' In other words, Sections 1910.423(b)(2) and 1910.424(b)(2) require that any diver who conducts a dive deeper than 100 fsw or outside the no-decompression limits to remain alert and near a decompression chamber for at least one hour to ensure immediate treatment should DCS or AGE develop. Addressing the 100 fsw limit in the preamble to the CDO rule, OSHA stated: By adding a depth limit to the decompression chamber requirement, the standard sets a specified depth at which all diving operations will require a chamber, eliminating the safety hazard inherent in operations which are planned below that depth . . . . OSHA believes that this provision will result in recompression capability being available for the great majority of diving situations where the probability of its being needed is greatest. 42 FR at 37662. In its application, NOAA sought permission to conduct SCUBA dives within the no-decompression limit up to 130 fsw (rather than 100 fsw) without triggering the decompression chamber requirements in 1910.423(b)(2) and 1910.424(b)(2). In support, NOAA cited statistics published by the U.S. Navy (USN) indicating that no-decompression dives to 130 fsw actually pose a lower risk of DCS to divers than no- decompression dives to 100 fsw, and also cited the extremely low DCS incident rate that NOAA has observed in no-decompression SCUBA dives that it has conducted between 101 and 130 fsw since 2000. When granting NOAA alternate standards to 1910.423(b)(2) and 1910.424(b)(2), OSHA explained that the CDO standard sets the 100 fsw limit based on the increased risk of developing DCS and AGE on dives deeper than 100 fsw. However, OSHA explained that the Agency amended the CDO standard in 2004 to permit employers of recreational diving instructors and diving guides to comply with an alternative set of decompression chamber requirements (see 69 FR 7351 (February 17, 2004)).\7\ Under the conditions articulated in Appendix C to Subpart T, eligible employers are not required to provide a decompression chamber at the dive site when engaged in SCUBA diving to 130 fsw while breathing a nitrox gas mixture within the no-decompression limits. --------------------------------------------------------------------------- \7\ Appendix C incorporated into the CDO standard essentially the same terms as those used in a variance that OSHA granted to Dixie Divers, Inc., a diving school that employed several recreational diving instructors, in 1999 (see 64 FR 71242, December 20, 1999). --------------------------------------------------------------------------- OSHA explained in the NOAA Alternate Diving Standards that it created this exemption for recreational diving instructors and diving guides because the Agency determined that the elevated levels of oxygen in nitrox breathing-gas mixtures reduced the incidence of DCS compared to breathing air at the same depths, and therefore [[Page 36000]] found that the risk of DCS was minimal. This determination justified OSHA's use in Appendix C of the equivalent-air-depth (EAD) formula from NOAA's 2001 Diving Manual to calculate the no-decompression limits that should apply to a dive depending on the nitrogen partial pressures in the gas. As explained in the preamble to the Appendix C final rule (69 Fed Reg. 7351, 7356), the EAD formula assumes that equivalent nitrogen partial pressures and dive durations will result in similar DCS risk to dives performed with air, and OSHA concluded that the ``EAD formula can accurately estimate the DCS risk associated with nitrox breathing-gas mixtures based on equivalent nitrogen partial pressures and dive durations used in air diving.'' After considering the statistics and information regarding NDP operations that NOAA submitted, OSHA concluded that NOAA's proposed alternate standards would provide equivalent protection to the CDO standard when NDP divers use air or nitrox breathing-gas mixtures with SCUBA, so long as NOAA complies with the no-decompression provisions of Appendix C of 29 CFR 1910, Subpart T (i.e., Condition 5, ``Use of No- Decompression Limits'').\8\ Also, when using nitrox breathing-gas mixtures with SCUBA at depths up to 130 fsw, NOAA must ensure that the partial pressure of oxygen does not exceed 1.40 ATA or 40 percent by volume (whichever exposes the diver to less oxygen),\9\ in keeping with the requirements of Appendix C. JHT's proposed variance would adopt these same conditions under which OSHA granted the alternate standards to 1910.423(b)(2) and 1910.424(b)(2) to NOAA for NDP dives in which JHT divers participate. OSHA believes that in order to maximize diving safety, it is imperative that, when diving for the NDP, the diving practices of JHT-employed divers be identical to those of NOAA-employed divers. --------------------------------------------------------------------------- \8\ Condition 5 of Appendix C requires: (a) For diving conducted while using nitrox breathing-gas mixtures, the employer must ensure that each diver remains within the no-decompression limits specified for single and repetitive air diving and published in the 2001 NOAA Diving Manual or the report entitled ``Development and Validation of No-Stop Decompression Procedures for Recreational Diving: The DSAT Recreational Dive Planner,'' published in 1994 by Hamilton Research Ltd. (known commonly as the ``1994 DSAT No-Decompression Tables''). (b) An employer may permit a diver to use a dive-decompression computer designed to regulate decompression when the dive- decompression computer uses the no-decompression limits specified in paragraph 5(a) of this appendix, and provides output that reliably represents those limits. \9\ As OSHA explained in the NOAA Alternate Diving Standards, a key purpose of OSHA's diving standards is to prevent oxygen toxicity (hypoxia), and the maximum acceptable partial pressure of oxygen when SCUBA diving is 1.40 ATA or 40 percent by volume, whichever exposes the diver to less oxygen. ATA, as used here, is the partial pressure of a constituent gas in the total pressure of a breathing gas. --------------------------------------------------------------------------- Additionally, JHT's application would adopt the conditions of the NOAA Alternate Diving Standards that permit NOAA to deviate from the decompression chamber availability and capability requirements in 1910.423(c)(1) (that employers have a 6 ATA chamber at the dive location) and 1910.423(c)(3) (that the chamber be dual-lock, multiplace, and located within five minutes of the dive location). In its original application to the Agency, NOAA proposed alternate standards that would have permitted it to use a 2.8 ATA, mono-lock chamber available within two (2) hours of the dive location for all working dives conducted deeper than 130 fsw or outside the no- decompression limits. NOAA explained that complying with 1910.423(c)(1) and (c)(3) requires employers to use a large enough boat to carry and transport a large and powerful decompression chamber to the dive site, but most NDP dives are conducted from small boats, which are launched from larger ships or land-based facilities. Accordingly, NOAA sought permission to use light-weight, portable decompression systems, which it referred to as ``hyperlite chambers,'' to transport injured divers from dive sites to larger chambers located elsewhere. Additionally, NOAA sought to make the hyperlite chamber available within two hours, rather than within five minutes, of the dive location for dives conducted deeper than 130 fsw or outside the no-decompression limits. OSHA did not grant NOAA the alternate standards based on these proposed conditions, but rather granted revised alternate standards in order to ensure that NOAA divers would receive equivalent protection to the CDO standard. Regarding the chamber capability requirements, OSHA found that mono-lock chambers provide limited hyperbaric treatment options (for example, administration of oxygen) to a diver, and explained that the preamble to the original CDO final rule discusses and justifies Subpart T's capability requirements for decompression chambers, including the requirements that the chamber have 6 ATA capability and be dual-lock (i.e., have two compartments) and multiplace (i.e., have a main lock large enough to accommodate and decompress two individuals) (see 42 FR 37650, 37661-63). Accordingly, OSHA stated that mono-lock chambers may be an option for transporting divers to bigger chambers, but it does not provide divers with protection that is equivalent to the CDO standard's requirements, and OSHA therefore did not approve NOAA's proposed chamber-capability alternative. Regarding the proposed chamber-availability alternative, OSHA noted that the preamble to the CDO final rule explained that having the decompression chamber near the dive site was originally considered necessary ``because the surface decompression tables are commonly designed to be used with equipment that meets this criterion'' (42 FR 37650, 37662). However, OSHA reexamined 1910.423(c)(3)'s five-minute availability requirement when it developed Appendix C to Subpart T. In Appendix C, OSHA found that, for no-decompression dives at 130 fsw or less, a four-hour travel delay to a 6-ATA decompression chamber is acceptable when the employer meets specified conditions, including: verifying before starting diving operations the availability of a treatment facility, qualified healthcare professionals, and a rescue service; ensuring that suitable transportation to the decompression chamber is available at the dive site during diving operations; ensuring at least two attendants qualified in first-aid and administering oxygen treatment are available for treatment during diving operations; and that these attendants administer medical-grade oxygen to the injured diver during transportation to the treatment facility. OSHA came to this conclusion because, as explained in the preamble to the Appendix C final rule, ``a four-hour delay is unlikely to impair treatment outcomes for [DCS], and that [AGE] is rare among recreational divers and can be prevented with proper training and experience'' (69 FR 7351, 7359-60). After considering the information that NOAA submitted regarding the NDP's diving operations, OSHA determined that, for no-decompression dives using air or nitrox that are 130 fsw or less, a four-hour travel delay to a 6 ATA chamber provides NDP divers with protection equivalent to the CDO standard, so long as NOAA meets the medical-treatment provisions of Appendix C to the CDO rule (i.e., Condition 8, ``Treating Diving-Related Medical Emergencies''). OSHA thus granted the NOAA Alternate Diving Standards under these conditions, and JHT now seeks to conduct NDP dives according to the same conditions. Based on its technical review of the JHT's application, the NOAA Alternate Diving Standards, and related [[Page 36001]] supporting material, OSHA preliminarily finds that the proposed conditions would also provide JHT divers with protection equivalent to the CDO standard; there are no differences in the training requirements, medical clearance procedures and standards, equipment use and maintenance requirements, or diving procedures that apply to NOAA- employed and JHT-employed divers who dive under the NDP, and diver safety is best promoted where diving safety rules are clear and consistently applicable to all divers at a worksite. In fact, OSHA believes that in order to maximize diving safety, it is imperative that, when diving for the NDP, the diving practices of JHT-employed divers be identical to those of NOAA-employed divers. Accordingly, OSHA has preliminarily decided to grant the interim order and permanent variance to JHT on those same conditions. D. Multi-State Variance As previously stated in this notice, JHT seeks a permanent variance from several provisions of OSHA's CDO standard in order to carry out NDP diving projects conducted from NOAA vessels in accordance with the conditions of the NOAA Alternate Diving Standards. JHT's land-based operations, which are responsible for managing and administering these diving projects, are located at: (1) NOAA CCEHBR Laboratory, 219 Fort Johnson Road, Charleston, South Carolina, 29412; and (2) NOAA/NOS Center for Coastal Fisheries and Habitat Research, 101 Pivers Island Road, Beaufort, North Carolina, 28516. JHT conducts diving operations with NOAA with essentially no geographical limitations, and have conducted diving operations in various navigable waters within OSHA's geographical authority, including the navigable waters of the Virginia, North Carolina, South Carolina, Georgia and Florida, the Florida Keys, the Gulf of Mexico, the Caribbean (e.g., U.S. Virgin Islands and Puerto Rico) and the Pacific (e.g., Hawaii, Guam, Palau, Marianas and American Samoa). Twenty-eight state safety and health plans have been approved by OSHA under section 18 of the OSH Act.\10\ The scope and application section of the CDO standard, 29 CFR 1910.401, explains that OSHA has jurisdiction over commercial diving operations when the dive location is within OSHA's geographical authority, and when such operations are not covered by the U.S. Coast Guard. As explained in OSHA's Directive regarding its enforcement of Subpart T (``CDO Directive''),\11\ OSHA's CDO standard covers private-sector employers in federal enforcement states, and employers who dive in association with maritime standards (i.e., shipyard employment, longshoring, and marine terminals) when these operations are not covered by a State with an OSHA-approved State Plan. States with approved State Plans enforce the diving standard: (1) When commercial diving operations are being conducted by private-sector employees not engaged in shipyard employment or marine terminal activities (e.g., equipment repair, sewer maintenance, or construction); (2) in maritime operations (i.e., shipyard employment and marine terminals) as provided by their plans in California, Minnesota, Vermont, and Washington; and (3) with regard to state and local government employees. The location of the dive determines which entity has authority over the dive conditions. --------------------------------------------------------------------------- \10\ Six State Plans (Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands) limit their occupational safety and health authority to state and local employers only. State Plans that exercise their occupational safety and health authority over both public- and private-sector employers are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. \11\ See OSHA Directive Number: CPL-02-00-151, ``29 CFR part 1910, subpart T--Commercial Diving Operations'' [Dated: 06/13/2011], available at: http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-151.pdf]. --------------------------------------------------------------------------- Under 29 CFR 1902.8(c), an employer may apply to Federal OSHA for a variance where a state standard is identical to a federal standard addressed to the same hazard, and the variance would be applicable to employment or places of employment in more than one state, including at least one state with an approved plan. Of the twenty-eight State Plans, only California, Michigan, Oregon, and Washington have promulgated their own state diving standards; Arizona has adopted 29 CFR 1910, subpart T with the exception of one provision that is not germane to this application,\12\ and all other State Plans have fully adopted 29 CFR part 1910, subpart T by reference. Both Michigan's and Oregon's diving standards also adopt 29 CFR part 1910, subpart T by reference, although Oregon's diving standards include additional State-specific rules.\13\ Washington's diving standards do not adopt 29 CFR part 1910, subpart T by reference, but include rules that are identical to each of the federal requirements at issue in JHT's application (see Washington Administrative Code, Chapter 296-37, Sec. Sec. 510-595). California's diving operations standards contain two rules that are substantively identical to two of the OSHA standards at issue in JHT's application (see California Code of Regulations, Title 8, Subchapter 7, Group 26 Sec. Sec. 6062(b)(1) and (3)((A)-(C)) (substantively identical to 29 CFR 1910.423(c)(1) and (c)(3)). Exhibit OSHA-2015-0024-0009 provides a side-by-side comparison of the Washington and California standards that are identical in substance and requirements to the Federal OSHA standards at issue in this variance application. --------------------------------------------------------------------------- \12\ See 20 A.A.C. 5 Sec. R20-5-602.01 (adopting OSHA's CDO Standard with the exception of 29 CFR 1910.401(a)(2)(ii)), available at: http://apps.azsos.gov/public_services/Title_20/20-05.pdf. \13\ See Michigan's Occupational Health Standards, Part 504, Sec. R 325.50303, ``Adoption by reference of federal standard,'' available at: http://www.michigan.gov/documents/lara/lara_miosha_OH_504_417497_7.pdf; Oregon Admin. Rule 437-002-0340, ``Adoption by Reference,'' available at: http://osha.oregon.gov/OSHARules/div2/div2T.pdf#page=7. --------------------------------------------------------------------------- JHT certified in its application that it has not filed an application for a permanent variance on the same material facts with a State Plan program. JHT's variance application fits the parameters of 29 CFR 1902.8, and Federal OSHA's action on this application will be deemed prospectively an authoritative interpretation of JHT's compliance obligations regarding the applicable state standards in the places of employment covered by the application. As part of the permanent variance process, OSHA's Directorate of Cooperative and State Programs will notify all State Plans that are potentially affected by JHT's variance application, and the states will have the opportunity to comment. III. Description of the Conditions Specified by the Interim Order and the Application for a Permanent Variance This section describes the alternative means of compliance with the provisions of 29 CFR 1910.430(d)(3), 1910.430(d)(4), 1910.423(b)(2), 1910.423(c)(1), 1910.423(c)(3), and 1910.424(b)(2), and provides additional detail regarding the proposed conditions that form the basis of JHT's application for an interim order and permanent variance. As indicated earlier in this notice, JHT is seeks the interim order and permanent variance based on proposed conditions derived from the conditions of the alternate standards that OSHA granted to NOAA on September 5, 2014 (Exhibit OSHA-2015-0024-0003, OSHA's Comments and Decisions to NOAA's Request for an [[Page 36002]] Alternate Standard on Diving)(``NOAA Alternate Diving Standards''). After reviewing all available information, including JHT's variance application, NOAA's application for the alternate diving standards, and OSHA's analysis and subsequent granting of the NOAA Alternate Diving Standards, OSHA has added additional conditions to this proposal from those adopted from the NOAA Alternate Diving Standard, which the Agency believes are necessary to ensure the safety of JHT's divers who conduct dives under the NOAA Diving Program (NDP). The below-described conditions form the basis of the interim order and the requested permanent variance.\14\ --------------------------------------------------------------------------- \14\ In these conditions, the present tense form of the verb (e.g., ``must'') pertains to the interim order, while the future conditional form of the verb (e.g., ``would'') pertains to the application for a permanent variance (designated as ``permanent variance''). --------------------------------------------------------------------------- Proposed Condition A: Scope The interim order/proposed permanent variance will/would apply only to JHT commercial diving operations that are conducted for NOAA as part of the NDP from a NOAA vessel. Additionally, coverage is/would be limited to the work situations specified under the ``Scope and application'' section of Subpart T, Commercial Diving Operations (1910.401(a)), and will/would not apply to commercial diving operations that are already exempted under 1910.401(a)(2).\15\ Accordingly the scope specifies that the interim order/proposed variance will/would only apply when the dive location is an uninspected vessel operated by NOAA, within OSHA's geographical authority, and when such operations are not covered by the U.S. Coast Guard. When implementing the conditions of the interim order/proposed permanent variance, JHT will/ would have to comply fully with all safety and health provisions that are applicable to commercial diving operations as specified by 29 CFR 1910, Subpart T, except for the requirements specified by 29 CFR 1910.430(d)(3), 1910.430(d)(4), 1910.423(b)(2), 1910.423(c)(1), 1910.423(c)(3), and 1910.424(b)(2). --------------------------------------------------------------------------- \15\ Section 1910.401(a)(2) provides that the CDO standard does not apply to any dive (i) performed solely for instructional purposes, using open-circuit, compressed-air SCUBA and conducted within the no-decompression limits; (ii) performed solely for search, rescue, or related public safety purposes by or under the control of a governmental agency; (iii) governed by 45 CFR part 46 (Protection of Human Subjects, U.S. Department of Health and Human Services) or equivalent rules or regulations established by another federal agency, which regulate research, development, or related purposes involving human subjects; or (iv) fitting the standard's definition of ``scientific diving.'' --------------------------------------------------------------------------- The interim order only applies to JHT's employees when they conduct diving operations under the NDP, as would the permanent variance should OSHA decide to grant it. Proposed Condition B: List of Abbreviations In proposed condition B, OSHA defines a number of abbreviations used in the interim order/proposed permanent variance. OSHA believes that defining these abbreviations serves to clarify and standardize their usage, thereby enhancing the applicant's and its employees' understanding of the conditions specified by the interim order/proposed permanent variance. Proposed Condition C: Requirements for Inflatable Flotation Devices This proposed condition will/would require that, when using a buoyancy compensator device (BCD) for SCUBA diving, JHT will/would ensure that: The device is used in accordance with the manufacturer's instructions; is capable of being inflated orally and via the diver's primary breathing gas supply; and, all divers carry an independent reserve cylinder of breathing gas with a separate regulator that could be used for BCD inflation in an emergency. It will/would also require that, when SCUBA diving, JHT will/would ensure divers use an inflatable flotation device that is: Capable of maintaining the diver at the surface in a positively buoyant state; and, has a manually activated inflation source, an oral inflation device, and an exhaust valve. Also, when SCUBA diving, JHT will/would ensure divers are never permitted to dive alone unless they are line-tended and provided with topside support. Based upon the technical review of the proposed alternate conditions described above (see section II.B.), OSHA preliminarily determined that these conditions will/would provide JHT's divers with protection equivalent to the provisions in the CDO standard that regulate inflatable flotation devices. OSHA approved these same conditions for NOAA-employed NDP divers when it granted the NOAA Alternate Diving Standards on September 5, 2014, and because there are no differences in training requirements, medical clearance procedures, equipment use and maintenance requirements, and diving procedures for NOAA-employed and JHT-employed divers under the NDP, OSHA grants JHT's request for an interim order, and proposes to grant JHT's request for a permanent variance, using the conditions of the NOAA Alternate Diving Standards, in combination with the additional conditions specified in this notice. Proposed Condition D: Requirements for Decompression Chambers This proposed condition will/would require that, for any dive that is outside the no-decompression limits or deeper than 130 fsw or using mixed gas with a percentage of oxygen less than air as a breathing mixture, JHT will/would instruct the diver to remain awake and in the vicinity of the decompression chamber which is at the dive location for at least one hour after the dive (including decompression or treatment as appropriate). Additionally, for any dive using air or a nitrox breathing-gas mixture within the no-decompression limits that is deeper than 100 fsw but no deeper than 130 fsw, JHT will/would make available within four hours of the dive location a dual-lock and multi-place decompression chamber capable of recompressing the diver at the surface to a minimum of 165 fsw (6 ATA). JHT will/would also be required to meet the medical-treatment provisions of Appendix C to the CDO rule (i.e., Condition 8, ``Treating Diving-Related Medical Emergencies''), and will/would be prohibited from conducting SCUBA diving using air or nitrox breathing-gas mixture at depths deeper than 100 fsw but no deeper than 130 fsw, or outside the no-decompression limits, unless a 6 ATA decompression chamber is ready for use (diving operations performed for instructional purposes in accordance with Sec. 1910.401(a)(2)(i) are exempt). When using a nitrox breathing-gas mixture, JHT will/would be required to meet the no-decompression provisions of Appendix C to the CDO rule (i.e., Condition 5, ``Use of No-Decompression Limits'') and ensure that the partial pressure of oxygen in breathing-gas mixtures does not exceed 1.40 ATA or 40% by volume, whichever exposes the diver to less oxygen. Based upon the technical review of the proposed alternate conditions regarding its use of decompression chambers (see section II.C.), OSHA preliminarily determined the specified conditions will/ would provide JHT's divers with protection equivalent to the CDO standard. OSHA approved these same conditions for NOAA-employed NDP divers when it granted the NOAA Alternate Diving Standards on September 5, 2014, and because there are no differences in training requirements, medical clearance procedures, equipment use and maintenance requirements, and required diving procedures for NOAA-employed and JHT- employed divers under the [[Page 36003]] NDP, OSHA grants JHT's request for an interim order, and proposes to grant the requested permanent variance, using the conditions of the NOAA Alternate Diving Standards in combination with the additional conditions specified in this notice. Proposed Condition E: Worker Qualification and Training OSHA added this proposed condition, which will/would require JHT to develop and implement an effective qualification and training program for its affected divers that, at a minimum, meets the requirements set forth in 29 CFR 1910.410 qualifications of a dive team. The proposed condition specifies that as members of the NDP, JHT's affected divers must/would be required to successfully complete the three-week, 140- hour ``Working Diver'' course that trains NOAA and contractor divers to perform a wide range of skills utilizing a variety of power and hand tools and specialized equipment. The proposed condition also specifies that JHT's diver must/would be required to complete NDP's diver training requirements, which include: (1) Instruction in the conditions of the proposed variance; (2) annual refresher training in oxygen administration (academic and practical components); (3) instruction in maintaining current CPR/AED and First Aid certification; (4) maintaining proficiency in diving by making at least three (3) dives per quarter; (5) completing and passing an annual swim test; (6) completing and passing an annual skills test to demonstrate the diver's ability to safely operate underwater; (7) successfully completing one or more annual rescue drills to demonstrate the diver's ability to surface, extricate, treat and evacuate the victim of a diving accident; and (8) instruction in properly verifying that the diver's life support gear was serviced annually by a certified technician. OSHA believes that having well-trained and qualified divers performing the required dive tasks ensures that they recognize, and respond appropriately to underwater safety and health hazards. These qualification and training requirements will/would enable affected JHT divers to cope effectively with emergencies, as well as the discomfort and physiological effects of hyperbaric exposure, thereby preventing injury, illness, and fatalities. Proposed Condition F: Recordkeeping OSHA also includes proposed condition F, which will/would require the applicant to maintain records of specific factors associated with each dive. The information gathered and recorded under this provision, in concert with the information provided under proposed condition G (using OSHA 301 Incident Report form to investigate and record dive- related recordable injuries as defined by 29 CFR 1904.4, 1904.7, 1904.8 through 1904.12), will/would enable the applicant and OSHA to determine the effectiveness of the interim order and proposed permanent variance in preventing DCS and other dive-related injuries and illnesses.\16\ --------------------------------------------------------------------------- \16\ See 29 CFR 1904, Recording and Reporting Occupational Injuries and Illnesses (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9631); recordkeeping forms and instructions (http://www.osha.gov/recordkeeping/RKform300pkg-fillable-enabled.pdf); and updates to OSHA's recordkeeping rule, 79 Fed Reg. 56130, September 18, 2014 (more information available at: http://www.osha.gov/recordkeeping2014/index.html). --------------------------------------------------------------------------- Proposed Condition G: Notifications OSHA added this proposed condition to JHT's application in order to ensure that the applicant provides timely notification regarding the continued use and effectiveness of the proposed conditions in maintaining the safety and health of affected divers and preventing dive-related incidents. Under this proposed condition, the applicant will/would be required to: (1) Notify the Office of Technical Programs and Coordination Activities (OTPCA) and the Area Office closest to the dive location of any recordable injuries, illnesses, in-patient hospitalizations, amputations, loss of an eye, or fatality that occur as a result of diving operations within eight (8) hours of the incident; (2) provide OTPCA and the Area Office closest to the dive location within twenty- four (24) hours of the incident with a copy of the incident investigation report (using OSHA 301 form); (3) include on the OSHA 301 form information on the diving conditions associated with the recordable injury or illness, the root-cause determination, and preventive and corrective actions identified and implemented; (4) provide its certification that it informed affected divers of the incident and the results of the incident investigation; (5) notify OTPCA and the Area Office closest to the dive location within fifteen (15) working days should the applicant need to revise its dive procedures to accommodate changes in its diving operations that affect its ability to comply with the conditions of the proposed permanent variance; and (6) by the fifteenth (15th) of January, at the beginning of each new calendar year, provide OTPCA, and the Area and Regional Offices closest to the preceding year's dive locations, with a report summarizing the dives completed during the year just ended and evaluating the effectiveness of the variance conditions in providing a safe and healthful work environment and in preventing dive-related incidents. It should be noted that the requirement of completing and submitting the dive-related (recordable) incident investigation report (OSHA 301 form) will/would be more restrictive than the current recordkeeping requirement of completing the OSHA 301 form within seven (7) calendar days of the incident (29 CFR 1904.29(b)(3)). This modified and more stringent incident investigation and reporting requirement will/would be restricted to dive-related (recordable) incidents only. Providing notification will/would be essential because time is a critical element in OSHA's ability to determine the continued effectiveness of the variance conditions in preventing dive-related incidents, and the applicant's identification and implementation of appropriate corrective and preventive actions. Further, these notification requirements will/would enable the applicant, its employees, and OSHA to determine the effectiveness of the proposed permanent variance in providing the requisite level of safety to the applicant's divers, and based on this determination, whether to revise or revoke the conditions of the proposed permanent variance. Timely notification will/would permit OSHA to take whatever action may be necessary and appropriate to prevent further injuries and illnesses. Providing notification to affected employees will/would inform them of the precautions taken by the applicant to prevent similar incidents in the future. Additionally, this proposed condition also will/would require the applicant to notify OSHA if it ceases to do business, has a new address or location for its main office, or transfers the operations covered by the proposed permanent variance to a successor company. Further, the condition will/would specify that OSHA must approve the transfer of the interim order or proposed permanent variance to a successor company. These requirements will/would: (1) Provide assurance that the successor company has knowledge of, and would comply with, the conditions specified by the interim order or proposed permanent variance; (2) allow OSHA to communicate effectively with the applicant regarding the status of the interim order or proposed permanent variance; and (3) expedite the Agency's administration and enforcement of the [[Page 36004]] interim order or proposed permanent variance, thereby ensuring the continued safety of affected divers. IV. Grant of Interim Order In Addition to a permanent variance, JHT requested an interim order, which would remain in effect until the Agency modifies or revokes the interim order, or until the Agency makes a decision on its application for a permanent variance, whichever occurs first. During this interim period, the applicant is required to comply fully with the conditions of the interim order as an alternative to complying with the inflatable flotation device requirements of 29 CFR 1910.430(d)(3) and (4), and the decompression chamber requirements of 29 CFR 1910.423(b)(2), (c)(1), and (c)(3), and 1910.424(b)(2). As described earlier in this notice, JHT proposes to adopt the conditions of the NOAA Alternate Diving Standards, which were granted to NOAA on September 5, 2014, as the conditions of the interim order and permanent variance. In addition to adopting the NOAA Alternate Diving Standards' conditions for deviating from the applicable inflatable flotation device and decompression chamber provisions of Subpart T, OSHA added several conditions, which the Agency believes are necessary to ensure the safety of JHT's divers who conduct commercial diving operations for NOAA under the NDP. After comprehensively reviewing the record discussed above, the Agency preliminarily finds that when the employer complies with the conditions of the proposed variance, the working conditions of the applicant's workers would be at least as safe and healthful as if the employer complied with the working conditions specified by 29 CFR 1910.430(d)(3), 1910.430(d)(4), 1910.423(b)(2), 1910.423(c)(1), 1910.423(c)(3), and 1910.424(b)(2). Accordingly, OSHA is issuing an interim order to the applicant pursuant to the provisions of 29 CFR 1910.11(c). In lieu of complying with the provisions listed of Subpart T specified above, the applicant will: (1) Comply with the conditions listed below in Section V (``Specific Conditions of the Interim Order and the Application for a Permanent Variance'') of this notice for as long as the interim order remains in effect; (2) comply fully with all other applicable provisions of 29 CFR part 1910; and (3) provide a copy of this Federal Register notice to all employees affected by the proposed conditions, using the same means it used to inform these employees of its application for a permanent variance. During the period starting with the publication of this notice, the interim order shall remain in effect until the Agency publishes a final decision on the application for a permanent variance, or until the Agency modifies or revokes the interim order in accordance with 29 CFR 1905.13, whichever occurs first. V. Specific Conditions of the Interim Order and the Application for a Permanent Variance After comprehensively reviewing the evidence, OSHA has preliminarily determined that the proposed conditions will provide a place of employment as safe and healthful as that provided by 29 CFR 1910.430(d)(3), 1910.430(d)(4), 1910.423(b)(2), 1910.423(c)(1), 1910.423(c)(3), and 1910.424(b)(2). The following conditions apply to the interim order that OSHA is granting to JHT. In addition, these conditions specify the alternative means of compliance that OSHA proposes for JHT's requested permanent variance from the above-listed provisions of Subpart T of 29 CFR part 1910. The conditions will/would apply to all of JHT's commercial diving operations conducted from NOAA vessels under the NOAA Diving Program (NDP). These conditions include: A. Scope 1. This interim order/permanent variance applies/would apply only to JHT's commercial diving operations conducted for NOAA under the NDP from a NOAA vessel. 2. The interim order/permanent variance only applies/would apply to JHT diving operations that are covered under Subpart T of 29 CFR part 1910 (see 29 CFR 1910.401(a)). Accordingly, the variance will/would only apply when the dive location is an uninspected vessel within OSHA's geographical authority, as defined by 29 U.S.C. 653(a), and when such operations are not covered by the U.S. Coast Guard. 3. The interim order/permanent variance will/would not apply to commercial diving operations exempted by 29 CFR 1910.401(a)(2), including diving operations performed solely for instructional purposes, using open-circuit, compressed-air SCUBA and conducted within the no-decompression limits; diving performed solely for search, rescue, or related public safety purposes by or under the control of a governmental agency; or; diving for research, development, or related purposes involving human subjects, as governed by 45 CFR part 46 or equivalent rules or regulations established by another federal agency; and scientific diving. To qualify for the scientific diving exemption, all of the requirements in 29 CFR 1910.401(a)(2)(iv) and Appendix B to 29 CFR part 1910, subpart T, must be met. 4. Except for the requirements specified by 29 CFR 1910.430(d)(3), 1910.430(d)(4), 1910.423(b)(2), 1910.423(c)(1), 1910.423(c)(3), and 1910.424(b)(2), JHT must/would be required to comply fully with all other applicable provisions of Subpart T of 29 CFR part 1910 when conducting commercial diving operations. 5. The interim order will remain in effect until the Agency publishes a final decision on the application for a permanent variance, or until the Agency modifies or revokes the interim order in accordance with 29 CFR 1905.13, whichever occurs first. B. List of Abbreviations Abbreviations used throughout this proposed permanent variance would include the following: ATA--Atmosphere Absolute BCD--Buoyancy Compensator Device CDO--Commercial Diving Operations DCS--Decompression Sickness fsw--feet of seawater JHT--Jardon and Howard Technologies, Incorporated NDP--NOAA Diving Program OSHA--Occupational Safety and Health Administration OTPCA--OSHA's Office of Technical Programs and Coordination Activities p.s.i.--pounds per square inch SCUBA--Self Contained Underwater Breathing Apparatus C. Requirements for Inflatable Flotation Devices 1. When using a BCD for SCUBA diving, JHT will/would ensure that: The device is used in accordance with the manufacturer's instructions; is capable of being inflated orally and via the diver's primary breathing gas supply; and all divers carry an independent reserve cylinder of breathing gas with a separate regulator that could be used for BCD inflation in an emergency. 2. When SCUBA diving, JHT will/would ensure that divers use an inflatable flotation device that is: Capable of maintaining the diver at the surface in a positively buoyant state; and have a manually activated inflation source, an oral inflation device, and an exhaust valve. 3. When SCUBA diving, JHT will/would ensure that divers are never permitted to dive alone unless they are line-tended and provided with topside support (as a minimum, topside support includes a designated person-in-charge and a standby diver). [[Page 36005]] D. Requirements for Decompression Chambers 1. For any dive that is outside the no-decompression limits or deeper than 130 fsw or using mixed gas with a percentage of oxygen less than air as a breathing mixture, JHT will/would instruct the diver to remain awake and in the vicinity of the decompression chamber, which is at the dive location for at least one hour after the dive (including decompression or treatment as appropriate). 2. For any dive using air or a nitrox breathing-gas mixture within the no-decompression limits that is deeper than 100 fsw but no deeper than 130 fsw, JHT will/would make available within four hours of the dive location, a decompression chamber capable of recompressing the diver at the surface to a minimum of 165 fsw (6 ATA). 3. For any dive using air or nitrox breathing-gas mixture within the no-decompression limits that is deeper than 100 fsw but no deeper than 130 fsw, JHT will/would make available a decompression chamber that is: dual-lock, multiplace, and located within four hours of the dive location. 4. JHT will/would have to meet the medical-treatment provisions of Appendix C to the CDO rule (i.e., Condition 8, ``Treating Diving- Related Medical Emergencies''). 5. JHT will/would be prohibited from conducting SCUBA diving using air or nitrox breathing-gas mixture at depths deeper than 100 fsw but no deeper than 130 fsw, or outside the no-decompression limits, unless a 6 ATA decompression chamber is ready for use (diving operations performed for instructional purposes in accordance with Sec. 1910.401(a)(2)(i) are exempt). 6. When using a nitrox breathing-gas mixture, JHT will/would have to meet the no-decompression provisions of Appendix C to the CDO rule (i.e., Condition 5, ``Use of No-Decompression Limits'') and ensure that the partial pressure of oxygen in breathing-gas mixtures does not exceed 1.40 ATA or 40% by volume, whichever exposes the diver to less oxygen. E. Worker Qualification and Training JHT will/would be required to: 1. Develop and implement an effective qualification and training program for its affected divers that as a minimum, meets the requirements set forth in 29 CFR 1910.410 qualifications of a dive team; 2. Ensure that each affected diver (including, but not limited to, current and newly assigned to be involved in diving operations under the NDP) successfully completes NOAA's three-week, 140-hour ``Working Diver'' course; 3. Ensure that the diver training program also includes the following: (a) Instruction in the conditions of the proposed variance; (b) annual refresher training in oxygen administration (academic and practical components); (c) instruction in maintaining current CPR/AED and First Aid certification; (d) maintaining proficiency in diving by making at least three (3) dives per quarter; (e) completing and passing an annual swim test; (f) completing and passing an annual skills test to demonstrate the diver's ability to safely operate underwater; (g) successfully completing one or more annual rescue drills to demonstrate the diver's ability to surface, extricate, treat and evacuate the victim of a diving accident; and (h) instruction in properly verifying that the diver's life support gear was serviced annually by a certified technician; 4. Document the training in order to provide a means of tracking the training received by divers and, consequently, to prompt JHT to update that training if necessary. F. Recordkeeping JHT will/would be required to: 1. Maintain records of recordable injuries that occur as a result of diving operations conducted for NOAA under the NDP; 2. Ensure that the information gathered and recorded under this provision, in concert with the information provided under proposed condition G (using OSHA 301 Incident Report form to investigate and record dive-related recordable injuries as defined by 29 CFR 1904.4, 1904.7, 1904.8 through 1904.12), would enable the JHT and OSHA to determine the effectiveness of the proposed permanent variance in preventing DCS and other dive-related injuries and illnesses.\17\ --------------------------------------------------------------------------- \17\ See footnote 16. --------------------------------------------------------------------------- G. Notifications JHT will/would be required to: 1. Notify the OTPCA and the Area Office closest to the dive location of any recordable injuries, illnesses, in-patient hospitalizations, amputations, loss of an eye, or fatality that occur as a result of diving operations within eight (8) hours of the incident; 2. Provide OTPCA and the Area Office closest to the dive location within twenty-four (24) hours of the incident with a copy of the incident investigation report (using OSHA 301 form); 3. Include on the OSHA 301 form information on the diving conditions associated with the recordable injury or illness, the root- cause determination, and preventive and corrective actions identified and implemented; 4. Provide its certification that it informed affected divers of the incident and the results of the incident investigation; 5. Notify OTPCA and the Area Office closest to the dive location within fifteen (15) working days should the applicant need to revise its dive procedures to accommodate changes in its diving operations that affect its ability to comply with the conditions of the proposed permanent variance; 6. Obtain OSHA's written approval prior to implementing the revision in its dive procedures to accommodate changes in its diving operations that affect its ability to comply with the conditions in the proposed permanent variance; 7. By the fifteenth (15th) of January, at the beginning of each new calendar year, provide OTPCA, and the Area and Regional Offices closest to the preceding year's dive locations, with a report summarizing the dives completed during the year just ended and evaluating the effectiveness of the variance conditions in providing a safe and healthful work environment and in preventing dive-related incidents; 8. Notify OSHA if it ceases to do business, has a new address or location for its main office, or transfers the operations covered by the proposed permanent variance to a successor company; and 9. Ensure that OSHA would approve the transfer of the interim order or permanent variance to a successor company. OSHA will publish a copy of this notice in the Federal Register. Authority and Signature Thomas M. Galassi, Acting Deputy Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C. 655(d), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1905.11. Signed at Washington, DC, on July 19, 2017. Thomas M. Galassi, Acting Deputy Assistant Secretary of Labor for Occupational Safety and Health. [FR Doc. 2017-15876 Filed 8-1-17; 8:45 am] BILLING CODE 4510-26-P
![Federal Register / Vol. 82, No. 147 / Wednesday, August 2, 2017 / Notices 35995
Corps Center less than 50 miles away DEPARTMENT OF LABOR attachments to the OSHA Docket Office,
from the Homestead campus, which Docket No. OSHA–2015–0024,
helped absorb transferred students. Occupational Safety and Health Technical Data Center, U.S. Department
Administration of Labor, 200 Constitution Avenue NW.,
After studying (1) the ongoing needs
Room N–2625, Washington, DC 20210;
of the center against those of the [Docket No. OSHA–2015–0024]
telephone: (202) 693–2350 (TTY
program overall, (2) the effort needed to
Jardon and Howard Technologies, number: (877) 889–5627). Note that
provide and maintain a high-quality, security procedures may result in
safe, and productive living and learning Incorporated; Application for
Permanent Variance and Interim Order; significant delays in receiving
environment, and (3) whether that effort comments and other written materials
is likely to ultimately produce an Grant of Interim Order; Request for
Comments by regular mail. Contact the OSHA
outcome that contributes to the Docket Office for information about
program’s overall strength and integrity, AGENCY: Occupational Safety and Health security procedures concerning delivery
the Department concluded that closing Administration (OSHA), Labor. of materials by express mail, hand
the Homestead Job Corps Center is in ACTION: Notice. delivery, or messenger service. The
the best interest of the program. hours of operation for the OSHA Docket
After completing this evaluation, the SUMMARY: In this notice, the Office are 10:00 a.m.–2:30 p.m.
Department then applied the relevant Occupational Safety and Health 4. Instructions: All submissions must
Administration (‘‘OSHA’’ or ‘‘the include the Agency name and the OSHA
additional considerations outlined in
Agency’’) announces the application of docket number (OSHA–2015–0024).
the March 2016 FRN and discussed OSHA places comments and other
Jardon and Howard Technologies,
above in Section II.B and determined materials, including any personal
Incorporated (‘‘JHT’’ or ‘‘the applicant’’)
that these considerations did not for a permanent variance from several information, in the public docket
preclude closure of the Homestead Job provisions in OSHA’s standards that without revision, and these materials
Corps Center. regulate commercial diving operations. will be available online at http://
The Department now requests public Additionally, the applicant requests an www.regulations.gov. Therefore, the
comments on its proposal to close the interim order based on the conditions Agency cautions commenters about
Homestead Job Corps Center. specified in the variance application. submitting statements they do not want
JHT’s variance request is based on the made available to the public, or
IV. The Process for Closing Job Corps conditions that were specified in the submitting comments that contain
Centers Under the Workforce alternate standards that OSHA granted personal information (either about
Innovation and Opportunity Act to the National Oceanic and themselves or others) such as Social
(WIOA) Atmospheric (NOAA) on September 5, Security numbers, birth dates, and
2014. OSHA announces its preliminary medical data.
The Department’s process for closing 5. Docket: To read or download
finding to grant the permanent variance,
Job Corps centers will follow the submissions or other material in the
and also announces that it is granting
requirements of section 159(j) of the the applicant’s request for an interim docket, go to http://www.regulations.gov
WIOA, which include the following: order. OSHA invites the public to or the OSHA Docket Office at the
• The proposed decision to close a submit comments on whether to grant address above. All documents in the
particular center is announced in the applicant a permanent variance docket are listed in the http://
advance to the general public through based on the conditions specified in the www.regulations.gov index; however,
publication in the Federal Register or notice. some information (e.g., copyrighted
other appropriate means; material) is not publicly available to
DATES: Submit comments, information,
read or download through the Web site.
• A reasonable comment period, not documents in response to this notice, All submissions, including copyrighted
to exceed 30 days, is established for and request for a hearing on or before material, are available for inspection at
interested individuals to submit written September 1, 2017. The interim order the OSHA Docket Office. Contact the
comments to the Secretary; and specified by this notice becomes OSHA Docket Office for assistance in
effective on August 2, 2017, and shall
• The Member of Congress who remain in effect until it is modified or
locating docket submissions.
represents the district in which such 6. Copies of this Federal Register
revoked, or until OSHA publishes a notice: Electronic copies of the Federal
center is located is notified within a decision on the permanent variance
reasonable period of time in advance of Register notice are available at http://
application, whichever occurs first. www.regulations.gov. This Federal
any final decision to close the center.
ADDRESSES: Submit comments by any of Register notice, as well as new releases
This Notice serves as the public the following methods: and other relevant information, also are
announcement of the decision to close 1. Electronically: Submit comments available at OSHA’s Web page at http://
the Homestead Job Corps Center. The and attachments electronically at http:// www.osha.gov.
Department is providing a 30-day www.regulations.gov, which is the 7. Extension of comment period:
period—the maximum amount of time Federal eRulemaking portal. Follow the Submit requests for an extension of the
allowed for comment under WIOA sec. instructions online for making comment period on or before September
159(j)—for interested individuals to electronic submissions. 1, 2017 to the Office of Technical
2. Facsimile: If submissions, Programs and Coordination Activities,
sradovich on DSKBCFCHB2PROD with NOTICES
submit written comments on the
proposed decision to close this center. including attachments, are not longer Directorate of Technical Support and
than 10 pages, commenters may fax Emergency Management, Occupational
Byron Zuidema, them to the OSHA Docket Office at (202) Safety and Health Administration, U.S.
Deputy Assistant Secretary for Employment 693–1648. Department of Labor, 200 Constitution
and Training. 3. Regular or express mail, hand Avenue NW., Room N–3655,
[FR Doc. 2017–16281 Filed 8–1–17; 8:45 am] delivery, or messenger (courier) service: Washington, DC 20210, or by fax to
BILLING CODE 4510–FT–P Submit comments, requests, and any (202) 693–1644.
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8. Hearing requests: According to 29 (see Exhibits OSHA–2015–0024–0002, 0024–0003, OSHA’s Comments and
CFR 1905.15, hearing requests must OSHA–2015–0024–0004, OSHA–2015– Decisions to NOAA’s Request for an
include: (1) A short and plain statement 0024–0003, and OSHA–2015–0024– Alternate Standard on Diving) (‘‘NOAA
detailing how the variance would affect 0005). Alternate Diving Standards’’). To
the requesting party; (2) a specification Specifically, the applicant seeks a account for the technological advances
of any statement or representation in the permanent variance and interim order and design improvements that have
variance application that the commenter from the provisions of OSHA’s CDO been made to buoyancy compensatory
denies, and a concise summary of the standard that require: devices (BCDs) since OSHA first
evidence adduced in support of each (1) A buoyancy compensator to have published its CDO standard in 1977 (see
denial; and (3) any views or arguments an inflation source separate from the 42 FR 37662 (July 22, 1977)), the NOAA
on any issue of fact or law presented in breathing gas supply when used for Alternate Diving Standards permit
the variance application. SCUBA diving (29 CFR 1910.430(d)(3)); NOAA to use modern BCDs during
FOR FURTHER INFORMATION CONTACT: (2) use of an inflatable flotation device diving operations that deviate from the
Information regarding this notice is capable of maintaining the diver at the configuration requirements in OSHA’s
available from the following sources: surface in a face-up position, having a CDO standard, but provide equal or
Press inquiries: Contact Mr. Frank manually activated inflation source greater safeguards to the diver. The
Meilinger, Director, OSHA Office of independent of the breathing supply, an NOAA Alternate Diving Standards also
Communications, U.S. Department of oral inflation device, and an exhaust provide NOAA with modified
Labor, 200 Constitution Avenue NW., valve (29 CFR 1910.430(d)(4)); requirements regarding the use of
Room N–3647, Washington, DC 20210; (3) the employer to instruct the diver decompression chambers, including
telephone: (202) 693–1999; email: to remain awake and in the vicinity of expanding the depth limit for SCUBA
meilinger.francis2@dol.gov. the decompression chamber which is at dives within the no-decompression
General and technical information: the dive location for at least one hour limits 3 (from 100 to 130 feet of sea
Contact Mr. Kevin Robinson, Director, after the dive (including decompression water (fsw)), and modifying
Office of Technical Programs and or treatment as appropriate) for any dive decompression chamber availability
Coordination Activities, Directorate of outside the no-decompression limits, requirements for certain no-
Technical Support and Emergency deeper than 100 feet of sea water (fsw), decompression dives up to 130 fsw in
Management, Occupational Safety and or using mixed gas as a breathing depth.
Health Administration phone: (202) mixture (29 CFR 1910.423(b)(2)); JHT’s divers who conduct diving
693–2110 or email: robinson.kevin@ (4) the employer to make available at operations for NOAA typically dive
dol.gov. the dive location a decompression from NOAA-operated ‘‘uninspected
chamber capable of recompressing the vessels’’ in U.S. navigable waters; such
SUPPLEMENTARY INFORMATION: diver at the surface to a minimum of 165 diving operations fall under OSHA’s
I. Notice of Application fsw (6 ATA) (29 CFR 1910.423(c)(1)); 1 jurisdiction.4 When conducting dives
(5) the employer to make available for NOAA, JHT divers are obliged to
On September 25, 2015, Jardon and within 5 minutes of the dive location a follow all of the requirements of the
Howard Technologies, Incorporated, dual-lock, multiplace decompression NOAA Diving Program (NDP), which
(‘‘JHT’’ or ‘‘the applicant’’), submitted chamber (29 CFR 1910.423(c)(3)); and include the NOAA Alternate Diving
an application for a permanent, multi- (6) that self-contained underwater Standards. JHT therefore seeks the
state variance under Section 6(d) of the breathing apparatus (SCUBA) diving not interim order and permanent variance
Occupational Safety and Health Act of be conducted at depths deeper than 100 from the provisions of OSHA’s CDO
1970 (‘‘OSH Act’’; 29 U.S.C. 655) and 29 fsw or outside the no-decompression standard based on the conditions that
CFR 1905.11 (‘‘Variances and other limits unless a decompression chamber apply to NOAA divers under the NOAA
relief under section 6(d)’’), from is ready for use (29 CFR 1910.424(b)(2)). Alternate Diving Standards, thus
provisions of OSHA’s commercial JHT is a contractor for the U.S. permitting JHT’s divers to dive under
diving operations (CDO) standard that Department of Commerce, National the same standards as their NOAA-
regulate the use of inflatable flotation Oceanic and Atmospheric employed colleagues.
devices and decompression chambers Administration (NOAA), a federal The applicant contends that the
(Exhibit OSHA–2015–0024–0001, government agency that conducts and proposed variance conditions outlined
Request for Variance). JHT’s application promotes undersea research using a in its application provide its workers
also requested an interim order pending variety of modes, including diving with a place of employment that is at
OSHA’s decision on the variance operations. On September 5, 2014, least as safe and healthful as they would
application. JHT’s corporate offices are OSHA granted NOAA alternate obtain under the existing provisions of
located at 2710 Discovery Drive, Suite standards 2 regulating its use of OSHA’s CDO standard. The applicant
600, Orlando, FL 32826, and JHT also inflatable flotation devices and certifies that it provided affected
identified two field office locations as decompression chambers during NOAA
places of employment involved in its diving operations (Exhibit OSHA–2015–
3 The definitions provided in Subpart T, 29 CFR
variance application: (1) NOAA/NOS 1910.402, define ‘‘no-decompression limits’’ as ‘‘the
depth-time limits of the ‘no-decompression limits
Center for Coastal Fisheries and Habitat 1 The full text of 29 CFR 1910.423(c)(1)(i)–(iii)
and repetitive dive group designation table for no-
Research, 101 Pivers Island Road, reads: ‘‘A decompression chamber capable of decompression air dives’, U.S. Navy Diving Manual,
Beaufort, North Carolina, 28516; and (2) recompressing the diver at the surface to a or equivalent limits which the employer can
NOAA CCFHBR Laboratory, 219 Fort minimum of 165 fsw (6 ATA) shall be available at demonstrate to be equally effective.’’
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the dive location for: (i) Surface-supplied air diving 4 For more information on OSHA’s enforcement
Johnson Road, Charleston, South to depths deeper than 100 fsw and shallower than authority over uninspected vessels on U.S.
Carolina, 29412. After receiving JHT’s 220 fsw; (ii) Mixed gas diving shallower than 300 navigable waters, see OSHA Directive Number:
variance application, OSHA sent two fsw; (iii) Diving outside the no-decompression CPL–02–01–047, ‘‘OSHA Authority over Vessels
rounds of follow-up questions to JHT, limits shallower than 300 fsw.’’ and Facilities on or Adjacent to U.S. Navigable
2 An alternate standard is the federal agency Waters and the Outer Continental Shelf (OCS)’’
on October 13, 2015 and June 27, 2016, equivalent to a variance, and federal agency heads [Dated: 02/22/2010], available at: https://
to which JHT responded on November may seek and obtain alternate standards from www.osha.gov/pls/oshaweb/owadisp.show_
16, 2015 and July 27, 2016, respectively OSHA pursuant to 29 CFR 1960.17. document?p_table=DIRECTIVES&p_id=4254.
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Following the terms of the NOAA volume of gas equivalent to that of drowning should an inflatable
Alternate Diving Standards, JHT’s consumed in three or fewer breaths, and flotation device malfunction.
variance application seeks permission to therefore asserted that taking such small Additionally, JHT’s proposed variance
use modern buoyancy compensator amounts of gas from the SCUBA conditions would follow the NOAA
devices (BCDs) that deviate from the cylinder would have minimal effect on Alternate Diving Standards by replacing
requirements in 1910.430(d)(3) and the duration of a dive. 1910.430(d)(4)’s requirement that BCDs
(d)(4) that such devices have an Under the alternate conditions that used for SCUBA dives be capable of
inflation source that is ‘‘separate from’’ OSHA granted NOAA in the NOAA maintaining the diver at the surface in
or ‘‘independent of’’ the diver’s Alternate Diving Standards, which JHT a ‘‘face-up position’’ with a requirement
breathing gas. NOAA’s application for adopts as the proposed conditions for that the BCD be capable of maintaining
the alternate standards explained that the variance, NDP divers may use BCDs the diver at the surface in a ‘‘positively
the overwhelming majority of that are inflated by the breathing gas buoyant state.’’ NOAA’s application
commercial-off-the-shelf (COTS) BCDs supply so long as all divers carry an materials explained that the majority of
are designed to use the diver’s breathing independent reserve cylinder of COTS BCDs available today are not
gas for inflation, making it difficult to breathing gas with a separate regulator, designed to maintain unconscious
comply with OSHA’s requirement for a which allows divers to orally inflate divers in a face-up position on the
BCD to have an independent inflation their BCDs using gas from their reserve surface, as systems capable of meeting
source. According to NOAA, older gas supplies even if their primary that requirement have inherent safety-
systems that utilize separate, non- breathing gas supply is depleted. When related problems that lead most
breathing gas inflation sources— granting the NOAA Alternate Diving manufacturers to abandon them in favor
particularly, carbon-dioxide cartridges— Standards, OSHA explained that this of more modern systems.
pose potential safety problems for the requirement is consistent with 29 CFR Specifically, NOAA asserted that the
diver, including potential cartridge 1910.424(c)(4), which requires SCUBA only BCD able to maintain a diver in a
failure, and accidental activation, divers to carry a reserve breathing-gas face-up position at the surface was the
leading to an unexpected and supply. As OSHA stated in the preamble ‘‘horse-collar’’ style BCD, which has
potentially dangerous over-inflation of to the CDO standard final rule (42 FR been widely replaced by jacket-style
the BCD, which could cause a rapid and 37650, 37633), ‘‘[a reserve] supply is BCDs (also known as stabilizing, or stab,
uncontrolled ascent of the diver to the essential to the safety of the SCUBA jackets) or back-mounted systems, both
surface. NOAA’s application stated that diver,’’ and employers must take of which have greater operational and
industry recognition of these inherent precautions to ‘‘assure that the air safety features compared to the older
safety problems prompted reserve will not be depleted style. NOAA explained that newer BCDs
inadvertently during the dive.’’ OSHA have more lift, fewer straps (reducing
manufacturers to discontinue
ultimately concluded that NOAA’s entanglement hazards, particularly
production of systems relying on such
proposed alternate standard provides when ditching the BCD in an
inflation sources. NOAA also explained
equivalent safety protection to divers as emergency, or when used in
that using a diver’s emergency air
1910.430(d)(3) so long as the diver conjunction with a weight harness),
supply to inflate the BCD is potentially
carries a reserve breathing gas supply, require fewer steps to don, will not
problematic, as connecting the BCD to
does not connect the reserve breathing choke divers when fully inflated on the
an auxiliary cylinder would impede a
gas to the BCD’s inflation source, and surface, and most significantly, do not
diver who is ‘‘ditching’’ components of
uses the BCD in accordance with the impede operation of chest-mounted
a SCUBA unit during an emergency, and
manufacturer’s instructions. drysuit inflation valves. Additionally,
would also create additional points of Further, OSHA noted in the NOAA NOAA explained that the inability of
potential equipment failure and Alternate Diving Standards that stab-jacket or back-mounted BCDs to
entanglement. JHT echoed NOAA’s 1910.430(d)(4)’s requirement that maintain a diver in a face-up position is
concerns regarding the use of BCDs that SCUBA divers use a BCD with a off-set by NOAA’s requirement that
are inflated by a source other than the manually activated inflation source divers always dive in buddy pairs (or be
diver’s breathing gas (see Ex. OSHA– (e.g., via a carbon-dioxide cartridge) in line-tended), and receive training in the
2015–0024–0003, p. 9). addition to an oral inflation device is proper technique for inflating their
The training that NOAA provides to intended to allow the diver to quickly buddy’s BCD while keeping their
its divers and contractors, including inflate the BCD in an emergency, but buddy’s head face-up during rescues.
JHT, mitigates the risk of using technological improvements in manual Accordingly, NOAA stated that the
breathing gas to inflate BCDs. NDP BCD power inflators now allow for chance of a stricken diver drowning
divers are trained to continually rapid inflation of BCDs with breathing while wearing a BCD that does not
monitor their gas supplies and return to gas, but with less safety risk (e.g., over- provide for face-up flotation is very
the surface with no less than 500 psi in inflation) than using carbon-dioxide remote. JHT added that horse-collar
their SCUBA cylinders, and NOAA cartridges. Using these manual BCD BCDs were not originally designed for
stated that this practice, which has been power inflators to inflate a BCD with emergency buoyancy ascents, and many
used for more than 30 years, has proven breathing gas therefore provides are thus not equipped with the over-
to be an effective method for managing protection to a diver that is equivalent pressure relief valves that are essential
a diver’s breathing gas. NDP divers are to the standard, and obviates the need for safe emergency ascents.
also trained in techniques to manually for 1910.430(d)(4)’s requirement that the When granting the NOAA Alternate
inflate their BCDs, both underwater and Diving Standards, OSHA noted that the
sradovich on DSKBCFCHB2PROD with NOTICES
BCD’s inflation source be independent
at the surface, to control their buoyancy. of the breathing supply. In addition, preamble to the CDO final rule
NOAA also explained that the amount OSHA stated that NOAA’s policy that, explained that ‘‘[t]he provision for an
of gas needed to inflate a BCD is except when line-tended, divers never inflatable flotation device for SCUBA
minimal compared to the amount of dive alone and always have topside diving [was] given design specifications
breathing gas that is available in a support, expedites the rescue of divers because an improperly designed device
standard SCUBA cylinder, and that who must make emergency ascents to can be a greater safety hazard than aid’’
most BCDs can be fully inflated with a the surface, thereby reducing their risk (42 FR 37650, 37666). BCDs were not
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found that the risk of DCS was minimal. divers participate. OSHA believes that for transporting divers to bigger
This determination justified OSHA’s use in order to maximize diving safety, it is chambers, but it does not provide divers
in Appendix C of the equivalent-air- imperative that, when diving for the with protection that is equivalent to the
depth (EAD) formula from NOAA’s 2001 NDP, the diving practices of JHT- CDO standard’s requirements, and
Diving Manual to calculate the no- employed divers be identical to those of OSHA therefore did not approve
decompression limits that should apply NOAA-employed divers. NOAA’s proposed chamber-capability
to a dive depending on the nitrogen Additionally, JHT’s application would alternative.
partial pressures in the gas. As adopt the conditions of the NOAA Regarding the proposed chamber-
explained in the preamble to the Alternate Diving Standards that permit availability alternative, OSHA noted
Appendix C final rule (69 Fed Reg. NOAA to deviate from the that the preamble to the CDO final rule
7351, 7356), the EAD formula assumes decompression chamber availability and explained that having the
that equivalent nitrogen partial capability requirements in decompression chamber near the dive
pressures and dive durations will result 1910.423(c)(1) (that employers have a 6 site was originally considered necessary
in similar DCS risk to dives performed ATA chamber at the dive location) and ‘‘because the surface decompression
with air, and OSHA concluded that the 1910.423(c)(3) (that the chamber be tables are commonly designed to be
‘‘EAD formula can accurately estimate dual-lock, multiplace, and located used with equipment that meets this
the DCS risk associated with nitrox within five minutes of the dive criterion’’ (42 FR 37650, 37662).
breathing-gas mixtures based on location). In its original application to However, OSHA reexamined
equivalent nitrogen partial pressures the Agency, NOAA proposed alternate 1910.423(c)(3)’s five-minute availability
and dive durations used in air diving.’’ standards that would have permitted it requirement when it developed
After considering the statistics and to use a 2.8 ATA, mono-lock chamber Appendix C to Subpart T. In Appendix
information regarding NDP operations available within two (2) hours of the C, OSHA found that, for no-
that NOAA submitted, OSHA concluded dive location for all working dives decompression dives at 130 fsw or less,
that NOAA’s proposed alternate conducted deeper than 130 fsw or a four-hour travel delay to a 6–ATA
standards would provide equivalent outside the no-decompression limits. decompression chamber is acceptable
protection to the CDO standard when NOAA explained that complying with when the employer meets specified
NDP divers use air or nitrox breathing- 1910.423(c)(1) and (c)(3) requires conditions, including: verifying before
gas mixtures with SCUBA, so long as employers to use a large enough boat to starting diving operations the
NOAA complies with the no- carry and transport a large and powerful availability of a treatment facility,
decompression provisions of Appendix decompression chamber to the dive site, qualified healthcare professionals, and a
C of 29 CFR 1910, Subpart T (i.e., but most NDP dives are conducted from rescue service; ensuring that suitable
Condition 5, ‘‘Use of No-Decompression small boats, which are launched from transportation to the decompression
Limits’’).8 Also, when using nitrox larger ships or land-based facilities. chamber is available at the dive site
breathing-gas mixtures with SCUBA at Accordingly, NOAA sought permission during diving operations; ensuring at
depths up to 130 fsw, NOAA must to use light-weight, portable least two attendants qualified in first-aid
ensure that the partial pressure of decompression systems, which it and administering oxygen treatment are
oxygen does not exceed 1.40 ATA or 40 referred to as ‘‘hyperlite chambers,’’ to available for treatment during diving
percent by volume (whichever exposes transport injured divers from dive sites operations; and that these attendants
the diver to less oxygen),9 in keeping to larger chambers located elsewhere. administer medical-grade oxygen to the
with the requirements of Appendix C. Additionally, NOAA sought to make the injured diver during transportation to
JHT’s proposed variance would adopt hyperlite chamber available within two the treatment facility. OSHA came to
these same conditions under which hours, rather than within five minutes, this conclusion because, as explained in
OSHA granted the alternate standards to of the dive location for dives conducted the preamble to the Appendix C final
1910.423(b)(2) and 1910.424(b)(2) to deeper than 130 fsw or outside the no- rule, ‘‘a four-hour delay is unlikely to
NOAA for NDP dives in which JHT decompression limits. impair treatment outcomes for [DCS],
OSHA did not grant NOAA the and that [AGE] is rare among
8 Condition 5 of Appendix C requires: alternate standards based on these recreational divers and can be prevented
(a) For diving conducted while using nitrox proposed conditions, but rather granted with proper training and experience’’
breathing-gas mixtures, the employer must ensure revised alternate standards in order to (69 FR 7351, 7359–60).
that each diver remains within the no-
decompression limits specified for single and ensure that NOAA divers would receive After considering the information that
repetitive air diving and published in the 2001 equivalent protection to the CDO NOAA submitted regarding the NDP’s
NOAA Diving Manual or the report entitled standard. Regarding the chamber diving operations, OSHA determined
‘‘Development and Validation of No-Stop capability requirements, OSHA found that, for no-decompression dives using
Decompression Procedures for Recreational Diving:
The DSAT Recreational Dive Planner,’’ published in that mono-lock chambers provide air or nitrox that are 130 fsw or less, a
1994 by Hamilton Research Ltd. (known commonly limited hyperbaric treatment options four-hour travel delay to a 6 ATA
as the ‘‘1994 DSAT No-Decompression Tables’’). (for example, administration of oxygen) chamber provides NDP divers with
(b) An employer may permit a diver to use a dive- to a diver, and explained that the protection equivalent to the CDO
decompression computer designed to regulate
decompression when the dive-decompression
preamble to the original CDO final rule standard, so long as NOAA meets the
computer uses the no-decompression limits discusses and justifies Subpart T’s medical-treatment provisions of
specified in paragraph 5(a) of this appendix, and capability requirements for Appendix C to the CDO rule (i.e.,
provides output that reliably represents those decompression chambers, including the Condition 8, ‘‘Treating Diving-Related
limits.
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9 As OSHA explained in the NOAA Alternate
requirements that the chamber have 6 Medical Emergencies’’). OSHA thus
Diving Standards, a key purpose of OSHA’s diving
ATA capability and be dual-lock (i.e., granted the NOAA Alternate Diving
standards is to prevent oxygen toxicity (hypoxia), have two compartments) and multiplace Standards under these conditions, and
and the maximum acceptable partial pressure of (i.e., have a main lock large enough to JHT now seeks to conduct NDP dives
oxygen when SCUBA diving is 1.40 ATA or 40 accommodate and decompress two according to the same conditions.
percent by volume, whichever exposes the diver to
less oxygen. ATA, as used here, is the partial
individuals) (see 42 FR 37650, 37661– Based on its technical review of the
pressure of a constituent gas in the total pressure 63). Accordingly, OSHA stated that JHT’s application, the NOAA Alternate
of a breathing gas. mono-lock chambers may be an option Diving Standards, and related
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supporting material, OSHA scope and application section of the standards do not adopt 29 CFR part
preliminarily finds that the proposed CDO standard, 29 CFR 1910.401, 1910, subpart T by reference, but
conditions would also provide JHT explains that OSHA has jurisdiction include rules that are identical to each
divers with protection equivalent to the over commercial diving operations of the federal requirements at issue in
CDO standard; there are no differences when the dive location is within JHT’s application (see Washington
in the training requirements, medical OSHA’s geographical authority, and Administrative Code, Chapter 296–37,
clearance procedures and standards, when such operations are not covered §§ 510–595). California’s diving
equipment use and maintenance by the U.S. Coast Guard. As explained operations standards contain two rules
requirements, or diving procedures that in OSHA’s Directive regarding its that are substantively identical to two of
apply to NOAA-employed and JHT- enforcement of Subpart T (‘‘CDO the OSHA standards at issue in JHT’s
employed divers who dive under the Directive’’),11 OSHA’s CDO standard application (see California Code of
NDP, and diver safety is best promoted covers private-sector employers in Regulations, Title 8, Subchapter 7,
where diving safety rules are clear and federal enforcement states, and Group 26 §§ 6062(b)(1) and (3)((A)–(C))
consistently applicable to all divers at a employers who dive in association with (substantively identical to 29 CFR
worksite. In fact, OSHA believes that in maritime standards (i.e., shipyard 1910.423(c)(1) and (c)(3)). Exhibit
order to maximize diving safety, it is employment, longshoring, and marine OSHA–2015–0024–0009 provides a
imperative that, when diving for the terminals) when these operations are side-by-side comparison of the
NDP, the diving practices of JHT- not covered by a State with an OSHA- Washington and California standards
employed divers be identical to those of approved State Plan. States with that are identical in substance and
NOAA-employed divers. Accordingly, approved State Plans enforce the diving requirements to the Federal OSHA
OSHA has preliminarily decided to standard: (1) When commercial diving standards at issue in this variance
grant the interim order and permanent operations are being conducted by application.
variance to JHT on those same private-sector employees not engaged in JHT certified in its application that it
conditions. shipyard employment or marine has not filed an application for a
terminal activities (e.g., equipment permanent variance on the same
D. Multi-State Variance material facts with a State Plan program.
repair, sewer maintenance, or
As previously stated in this notice, construction); (2) in maritime operations JHT’s variance application fits the
JHT seeks a permanent variance from (i.e., shipyard employment and marine parameters of 29 CFR 1902.8, and
several provisions of OSHA’s CDO terminals) as provided by their plans in Federal OSHA’s action on this
standard in order to carry out NDP California, Minnesota, Vermont, and application will be deemed
diving projects conducted from NOAA Washington; and (3) with regard to state prospectively an authoritative
vessels in accordance with the and local government employees. The interpretation of JHT’s compliance
conditions of the NOAA Alternate location of the dive determines which obligations regarding the applicable
Diving Standards. JHT’s land-based entity has authority over the dive state standards in the places of
operations, which are responsible for conditions. employment covered by the application.
managing and administering these Under 29 CFR 1902.8(c), an employer As part of the permanent variance
diving projects, are located at: (1) NOAA may apply to Federal OSHA for a process, OSHA’s Directorate of
CCEHBR Laboratory, 219 Fort Johnson variance where a state standard is Cooperative and State Programs will
Road, Charleston, South Carolina, identical to a federal standard addressed notify all State Plans that are potentially
29412; and (2) NOAA/NOS Center for to the same hazard, and the variance affected by JHT’s variance application,
Coastal Fisheries and Habitat Research, would be applicable to employment or and the states will have the opportunity
101 Pivers Island Road, Beaufort, North places of employment in more than one to comment.
Carolina, 28516. JHT conducts diving state, including at least one state with
III. Description of the Conditions
operations with NOAA with essentially an approved plan. Of the twenty-eight
Specified by the Interim Order and the
no geographical limitations, and have State Plans, only California, Michigan,
Application for a Permanent Variance
conducted diving operations in various Oregon, and Washington have
navigable waters within OSHA’s promulgated their own state diving This section describes the alternative
geographical authority, including the standards; Arizona has adopted 29 CFR means of compliance with the
navigable waters of the Virginia, North 1910, subpart T with the exception of provisions of 29 CFR 1910.430(d)(3),
Carolina, South Carolina, Georgia and one provision that is not germane to this 1910.430(d)(4), 1910.423(b)(2),
Florida, the Florida Keys, the Gulf of application,12 and all other State Plans 1910.423(c)(1), 1910.423(c)(3), and
Mexico, the Caribbean (e.g., U.S. Virgin have fully adopted 29 CFR part 1910, 1910.424(b)(2), and provides additional
Islands and Puerto Rico) and the Pacific subpart T by reference. Both Michigan’s detail regarding the proposed conditions
(e.g., Hawaii, Guam, Palau, Marianas and Oregon’s diving standards also that form the basis of JHT’s application
and American Samoa). adopt 29 CFR part 1910, subpart T by for an interim order and permanent
Twenty-eight state safety and health reference, although Oregon’s diving variance. As indicated earlier in this
plans have been approved by OSHA standards include additional State- notice, JHT is seeks the interim order
under section 18 of the OSH Act.10 The specific rules.13 Washington’s diving and permanent variance based on
proposed conditions derived from the
10 Six State Plans (Connecticut, Illinois, Maine, 11 See OSHA Directive Number: CPL–02–00–151, conditions of the alternate standards
New Jersey, New York, and the Virgin Islands) limit ‘‘29 CFR part 1910, subpart T—Commercial Diving that OSHA granted to NOAA on
their occupational safety and health authority to Operations’’ [Dated: 06/13/2011], available at: September 5, 2014 (Exhibit OSHA–
sradovich on DSKBCFCHB2PROD with NOTICES
state and local employers only. State Plans that http://www.osha.gov/OshDoc/Directive_pdf/CPL_
02-00-151.pdf]. 2015–0024–0003, OSHA’s Comments
exercise their occupational safety and health
authority over both public- and private-sector 12 See 20 A.A.C. 5 § R20–5–602.01 (adopting and Decisions to NOAA’s Request for an
employers are: Alaska, Arizona, California, Hawaii, OSHA’s CDO Standard with the exception of 29
Indiana, Iowa, Kentucky, Maryland, Michigan, CFR 1910.401(a)(2)(ii)), available at: http:// www.michigan.gov/documents/lara/lara_miosha_
Minnesota, Nevada, New Mexico, North Carolina, apps.azsos.gov/public_services/Title_20/20–05.pdf. OH_504_417497_7.pdf; Oregon Admin. Rule 437–
Oregon, Puerto Rico, South Carolina, Tennessee, 13 See Michigan’s Occupational Health Standards, 002–0340, ‘‘Adoption by Reference,’’ available at:
Utah, Vermont, Virginia, Washington, and Part 504, § R 325.50303, ‘‘Adoption by reference of http://osha.oregon.gov/OSHARules/div2/
Wyoming. federal standard,’’ available at: http:// div2T.pdf#page=7.
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D. Requirements for Decompression successfully completes NOAA’s three- associated with the recordable injury or
Chambers week, 140-hour ‘‘Working Diver’’ illness, the root-cause determination,
1. For any dive that is outside the no- course; and preventive and corrective actions
3. Ensure that the diver training identified and implemented;
decompression limits or deeper than
program also includes the following: (a) 4. Provide its certification that it
130 fsw or using mixed gas with a
Instruction in the conditions of the informed affected divers of the incident
percentage of oxygen less than air as a
proposed variance; (b) annual refresher and the results of the incident
breathing mixture, JHT will/would
training in oxygen administration investigation;
instruct the diver to remain awake and
(academic and practical components);
in the vicinity of the decompression 5. Notify OTPCA and the Area Office
(c) instruction in maintaining current
chamber, which is at the dive location closest to the dive location within
CPR/AED and First Aid certification; (d)
for at least one hour after the dive fifteen (15) working days should the
maintaining proficiency in diving by
(including decompression or treatment applicant need to revise its dive
making at least three (3) dives per
as appropriate). procedures to accommodate changes in
2. For any dive using air or a nitrox quarter; (e) completing and passing an
annual swim test; (f) completing and its diving operations that affect its
breathing-gas mixture within the no- ability to comply with the conditions of
decompression limits that is deeper passing an annual skills test to
demonstrate the diver’s ability to safely the proposed permanent variance;
than 100 fsw but no deeper than 130
fsw, JHT will/would make available operate underwater; (g) successfully 6. Obtain OSHA’s written approval
within four hours of the dive location, completing one or more annual rescue prior to implementing the revision in its
a decompression chamber capable of drills to demonstrate the diver’s ability dive procedures to accommodate
recompressing the diver at the surface to to surface, extricate, treat and evacuate changes in its diving operations that
a minimum of 165 fsw (6 ATA). the victim of a diving accident; and (h) affect its ability to comply with the
3. For any dive using air or nitrox instruction in properly verifying that the conditions in the proposed permanent
breathing-gas mixture within the no- diver’s life support gear was serviced variance;
decompression limits that is deeper annually by a certified technician; 7. By the fifteenth (15th) of January,
4. Document the training in order to at the beginning of each new calendar
than 100 fsw but no deeper than 130
provide a means of tracking the training year, provide OTPCA, and the Area and
fsw, JHT will/would make available a
received by divers and, consequently, to Regional Offices closest to the preceding
decompression chamber that is: dual-
prompt JHT to update that training if year’s dive locations, with a report
lock, multiplace, and located within
necessary. summarizing the dives completed
four hours of the dive location.
4. JHT will/would have to meet the F. Recordkeeping during the year just ended and
medical-treatment provisions of JHT will/would be required to: evaluating the effectiveness of the
Appendix C to the CDO rule (i.e., 1. Maintain records of recordable variance conditions in providing a safe
Condition 8, ‘‘Treating Diving-Related injuries that occur as a result of diving and healthful work environment and in
Medical Emergencies’’). operations conducted for NOAA under preventing dive-related incidents;
5. JHT will/would be prohibited from the NDP; 8. Notify OSHA if it ceases to do
conducting SCUBA diving using air or 2. Ensure that the information business, has a new address or location
nitrox breathing-gas mixture at depths gathered and recorded under this for its main office, or transfers the
deeper than 100 fsw but no deeper than provision, in concert with the operations covered by the proposed
130 fsw, or outside the no- information provided under proposed permanent variance to a successor
decompression limits, unless a 6 ATA condition G (using OSHA 301 Incident company; and
decompression chamber is ready for use Report form to investigate and record
(diving operations performed for 9. Ensure that OSHA would approve
dive-related recordable injuries as the transfer of the interim order or
instructional purposes in accordance defined by 29 CFR 1904.4, 1904.7,
with § 1910.401(a)(2)(i) are exempt). permanent variance to a successor
1904.8 through 1904.12), would enable company.
6. When using a nitrox breathing-gas the JHT and OSHA to determine the
mixture, JHT will/would have to meet effectiveness of the proposed permanent OSHA will publish a copy of this
the no-decompression provisions of variance in preventing DCS and other notice in the Federal Register.
Appendix C to the CDO rule (i.e., dive-related injuries and illnesses.17 Authority and Signature
Condition 5, ‘‘Use of No-Decompression
Limits’’) and ensure that the partial G. Notifications Thomas M. Galassi, Acting Deputy
pressure of oxygen in breathing-gas JHT will/would be required to: Assistant Secretary of Labor for
mixtures does not exceed 1.40 ATA or 1. Notify the OTPCA and the Area Occupational Safety and Health, 200
40% by volume, whichever exposes the Office closest to the dive location of any Constitution Avenue NW., Washington,
diver to less oxygen. recordable injuries, illnesses, in-patient DC 20210, authorized the preparation of
hospitalizations, amputations, loss of an this notice. Accordingly, the Agency is
E. Worker Qualification and Training
eye, or fatality that occur as a result of issuing this notice pursuant to 29 U.S.C.
JHT will/would be required to: diving operations within eight (8) hours 655(d), Secretary of Labor’s Order No.
1. Develop and implement an of the incident; 1–2012 (77 FR 3912, Jan. 25, 2012), and
effective qualification and training 2. Provide OTPCA and the Area Office 29 CFR 1905.11.
sradovich on DSKBCFCHB2PROD with NOTICES
program for its affected divers that as a closest to the dive location within
minimum, meets the requirements set Signed at Washington, DC, on July 19,
twenty-four (24) hours of the incident
2017.
forth in 29 CFR 1910.410 qualifications with a copy of the incident investigation
of a dive team; report (using OSHA 301 form); Thomas M. Galassi,
2. Ensure that each affected diver 3. Include on the OSHA 301 form Acting Deputy Assistant Secretary of Labor
(including, but not limited to, current information on the diving conditions for Occupational Safety and Health.
and newly assigned to be involved in [FR Doc. 2017–15876 Filed 8–1–17; 8:45 am]
diving operations under the NDP) 17 See footnote 16. BILLING CODE 4510–26–P
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Document Created: 2017-08-02 07:09:41
Document Modified: 2017-08-02 07:09:41
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice. | |
| Dates | Submit comments, information, documents in response to this notice, and request for a hearing on or before September 1, 2017. The interim order specified by this notice becomes effective on August 2, 2017, and shall remain in effect until it is modified or revoked, or until OSHA publishes a decision on the permanent variance application, whichever occurs first. | |
| Contact | Information regarding this notice is available from the following sources: | |
| FR Citation | 82 FR 35995 |
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