Jardon and Howard Technologies, Incorporated; Application for Permanent Variance and Interim Order; Grant of Interim Order; Request for Comments, 35995-36005 [2017-15876]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[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.

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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 https://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 
https://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 https://www.regulations.gov or the OSHA Docket Office at 
the address above. All documents in the docket are listed in the https://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 https://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 https://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\
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    \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.''
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    (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.
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    \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.''
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    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.
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    \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.
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    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.
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    \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.
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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\
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    \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).
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    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.
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    \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: https://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: https://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: https://www.michigan.gov/documents/lara/lara_miosha_OH_504_417497_7.pdf; Oregon Admin. Rule 437-002-0340, 
``Adoption by Reference,'' available at: https://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\
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    \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 (https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9631); recordkeeping 
forms and instructions (https://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: https://www.osha.gov/recordkeeping2014/).
---------------------------------------------------------------------------

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\
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    \17\ See footnote 16.
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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