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Federal Registers - Table of Contents
• Publication Date: 08/02/2017
• Publication Type: Notice
• Fed Register #: 82:35995-36005
• Standard Number: 1910; 1910.423(c)(1); 1910.401(a)(2)(ii); 1902.8; 1910.430(d)(3); 1910.410; 1904.4; 1904.7; 1904.8; 1904; 1904.29(b)(3); 1905.13
• Title: Jardon and Howard Technologies, Incorporated; Application for Permanent Variance and Interim Order; Grant of Interim Order; Request for Comments


  [Federal Register Volume 82, Number 147 (Wednesday, August 2, 2017)]
  [Notices]
  [Pages 35995-36005]
  From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
  [FR Doc No: 2017-15876]


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  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.


      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


  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)).


      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


  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


  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


  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


  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


  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

  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).


  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




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