KBR Wyle Services, LLC; Application for Permanent Variance and Interim Order; Grant of Interim Order; Request for Comments, 80771-80777 [2023-25567]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 88, Number 222 (Monday, November 20, 2023)]
[Notices]
[Pages 80771-80777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25567]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2022-0010]


KBR Wyle Services, LLC; 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, OSHA announces the application of KBR Wyle 
Services, LLC for a permanent variance and interim order from a 
provision of the OSHA standard that regulates commercial diving 
operations, presents the agency's preliminary finding on KBR's 
application, and announces the granting of an interim order. KBR's 
variance request is based on the conditions specified in the alternate 
standard that OSHA granted to the National Aeronautics and Space 
Administration (NASA) on June 30, 2021. OSHA invites the public to 
submit comments on the variance application to assist the agency in 
determining whether to grant the applicant a permanent variance based 
on the conditions specified in this notice.

DATES: Submit comments, information, documents in response to this 
notice, and request for a hearing on or before December 20, 2023. The 
interim order specified by this notice becomes effective on November 
20, 2023 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: 
    Electronically: You may submit comments and attachments 
electronically at: https://www.regulations.gov, which is the Federal 
eRulemaking Portal. Follow the instructions online for submitting 
comments.
    Instructions: All submissions must include the agency name and OSHA 
docket number (OSHA-2022-0010). All comments, including any personal 
information you provide, are placed in the public docket without 
change, and may be made available online at https://www.regulations.gov.
    Docket: To read or download comments or other material in the 
docket, go to https://www.regulations.gov or the OSHA Docket Office. All 
documents in the docket (including this Federal Register notice) 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 website. All submissions, including 
copyrighted material, are available for inspection at the OSHA Docket 
Office. Contact the OSHA Docket Office at (202) 693-2350 (TTY (877) 
889-5627 for assistance in locating docket submission.
    Extension of comment period: Submit requests for an extension of 
the comment period on or before December 20, 2023 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-3653, Washington, DC 20210, or by fax to (202) 693-
1644.

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; telephone: (202) 693-1999; 
email: [email protected].
    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, U.S. Department of Labor; telephone: 
(202) 693-2300; email: [email protected].
    Copies of this Federal Register notice: Electronic copies of this 
Federal Register notice are available at https://www.regulations.gov. 
This Federal Register notice, as well as news releases and other 
relevant information, also are available at OSHA's web page at https://www.osha.gov.
    Hearing Requests: Pursuant to 29 CFR 1905.15, hearing requests must 
include: (1) a short and plain statement detailing how the proposed 
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 offered in 
support of each denial; and (3) any views or arguments on any issue of 
fact or law presented in the variance application.

SUPPLEMENTARY INFORMATION:

[[Page 80772]]

I. Notice of Application

    OSHA's standards in subpart T of 29 CFR 1910 govern commercial 
diving operations. On June 20, 2022, KBR Wyle Services, LLC (KBR or the 
applicant), submitted an application for a permanent 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 a provision of OSHA's commercial diving 
operations (CDO) standard that regulates the use of decompression 
chambers (Docket No. OSHA-2022-0010-0001). KBR's application also 
requested an interim order pending OSHA's decision on the variance 
application. KBR's corporate offices are located at 601 Jefferson 
Street, Houston, Texas 77002, and KBR identified an additional place of 
employment involved in the variance application: NASA's Neutral 
Buoyancy Laboratory, 13000 Space Center Boulevard, Houston, Texas 
77059.
    Specifically, KBR seeks a permanent variance and interim order from 
the provision of OSHA's CDO standard at 29 CFR 1910.423(b)(2) that 
requires the employer to instruct divers engaged in commercial diving 
operations to remain awake and in the vicinity of the decompression 
chamber 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.
    KBR is a contractor for the National Aeronautics and Space 
Administration (NASA), a federal government agency that is responsible 
for science and technology related to air and space. On June 30, 2021, 
OSHA granted NASA an alternate standard \1\ regulating its use of 
decompression chambers during diving operations at NASA's National 
Buoyancy Laboratory (NBL) (Docket No. OSHA-2022-0010-0002), OSHA's 
Comments and Decisions to NASA's Request for an Alternate Standard on 
Diving (NASA Alternate Diving Standards). To account for technological 
advances in the use of elevated oxygen levels in nitrox breathing-gas 
mixtures and the use of the equivalent-air-depth (EAD) formula (see 
OSHA's 2004 Final Rule amending 29 CFR part 1910, subpart T, Appendix C 
(69 FR 7351, 7356)) the NASA Alternate Diving Standard provides NASA 
with modified requirements regarding the use of decompression chambers, 
including requiring the diver to remain awake and in the vicinity of 
the decompression chamber at the dive location for at least 10 minutes 
after the dive.
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    \1\ Federal agency heads may seek and obtain approval for 
alternate standards from OSHA pursuant to 29 CFR 1960.17. An 
alternate standard may only be approved upon a showing that the 
alternate standard will provide equivalent or greater protection for 
the affected employees than compliance with the OSHA standard.
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    KBR's divers conduct diving operations for NASA at the NBL facility 
in Houston, Texas. NASA requires all divers to follow all of their 
internal requirements, including the NBL Diving Program and the NASA 
Alternate Diving Standard, which only covers NASA employees. To permit 
KBR's divers to dive under the same standards as their NASA-employed 
colleagues, KBR seeks the interim order and permanent variance from 29 
CFR 1910.423(b)(2) based on the same conditions that apply to NASA 
divers under the NASA Alternate Diving Standard.
    KBR contends that the proposed variance conditions outlined in 
their application provide KBR's 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. KBR also certified that it 
is not contesting any citations involving the standards that are the 
subject of this application.
    Based on an initial review of KBR's application for a permanent 
variance and interim order based on the Alternate Standard OSHA granted 
NASA on June 30, 2021, OSHA has preliminarily determined that granting 
a variance allowing KBR to use the NASA Alternate Standard would 
provide a workplace for KBR employees that is as safe and healthful as 
that provided by the OSHA standard.
    Pursuant to the requirements of OSHA's variance regulations (29 CFR 
1905.11), the applicant has certified that they notified their workers 
of the variance application and request for interim order by posting, 
at prominent locations where it normally posts workplace notices, a 
summary of the application and information specifying where the workers 
can examine a copy of the application. In addition, the applicant 
informed their workers of their rights to petition the Assistant 
Secretary of Labor for Occupational Safety and Health for a hearing on 
the variance application.

II. NASA's Alternate Diving Standard and KBR's Variance Application

A. Background

    On December 15, 2020, NASA submitted an application (Docket No. 
OSHA-2022-0010-0001) to OSHA proposing one alternate standard to 29 CFR 
1910.423(b)(2), Subpart T, and included with their application 
extensive introductory, background, and explanatory information in 
support of the application (Docket No. OSHA-2022-0010-0003). NASA 
sought an alternate standard that would permit the NBL to conduct post-
dive health monitoring that is tailored to NASA's specific dive 
operations and medical surveillance capabilities.
    The alternate standard application stated that NASA operates 
training and simulation activities for space operations that routinely 
involve underwater diving operations in preparation of upcoming 
missions. NASA described the NBL as a large, indoor tank of water, 
where astronauts perform simulated extravehicular activities (EVAs), 
also known as spacewalks, in preparation for upcoming space missions. 
The NBL is a controlled environment with a maximum depth of 40 feet. 
Its primary purpose is to provide a large-scale underwater environment 
in which NASA personnel can simulate a weightless environment by 
balancing the buoyancy of a suited subject submerged in the water. 
Astronaut trainees, suited in Extravehicular Mobility Units (EMUs) 
adapted for use in water, can then perform a variety of specialized 
activities on spacecraft and Space Station analogs in the water. The 
NBL uses nitrox (46% enriched air nitrox ([EAN46) as the 
standard breathing gas for self-contained underwater breathing 
apparatus (SCUBA) while working in the tank. NASA asserted in its 
request for the alternate standard that diving on nitrox in the NBL is 
safer and less likely to cause decompression sickness (DCS) than diving 
on compressed air due to the lower partial pressure of nitrogen in the 
gas mixture, giving a shallower ``equivalent air depth'' (EAD). The EAD 
formula can accurately estimate the depth allowing for DCS risk 
calculation based on equivalent nitrogen pressures and dive durations 
used in air diving. In other words, breathing 46% EAN46 at 
40 feet is like breathing air at 17 feet, essentially eliminating the 
risk of DCS in nominal operations. Additionally, the alternate standard 
application examined the use of nitrox in the water, and the risk of 
oxygen toxicity, specifically the risk of seizure resulting from 
Central Nervous System (CNS) oxygen toxicity. NASA asserted in the 
alternate standard application that with the hard floor at 40 feet in 
the tank, there are no cases in medical or diving literature of seizure 
in water at pressures of pO2 of 1.0 ata. Further, 
NASA asserted that there have

[[Page 80773]]

been no instances of CNS oxygen toxicity with NBL operations to date.
    The alternate standard application asserted that the alternate 
standard provides equivalent protection to the OSHA standard. First, 
the fixed diving depth of the pool has mitigated the risk of 
decompression sickness. As a result, the NBL has eliminated the risk of 
decompression sickness and thus the need to remain within the vicinity 
of the chamber is for the control and treatment of arterial gas 
embolism only. Second, NASA asserted that a shorter observation period 
would be sufficient: ``At the NBL, a ten-minute observation provides 
the equivalent protection as a one-hour observation in the outside 
environment. Moreover, implementation of this standard will provide 
greater protection for divers by allowing them to dive on Nitrox rather 
than air routinely. This will reduce recurrent decompression stress 
experienced by the divers, along with the resulting long-term health 
problems that occur from repetitive decompression stress, such as the 
risk of dysbaric osteonecrosis (bone death).'' Additionally: ``NBL 
divers operate under no-decompression limits that are more conservative 
than the U.S. Navy. The OSHA regulations for mixed gas diving enhance 
safety when applied to gas mixtures used on long, deep, complex dives 
because of increased risk of DCS and oxygen toxicity. However, diving 
with nitrox at shallower depths, such as the NBL, is in fact safer than 
diving on air.'' Further: ``The NBL adheres to strict oxygen clean 
handling and compatibility requirements that exceed the industry 
standard for concentrations greater than 40% by volume. The alternate 
standard allows a safer gas to be breathed during all NBL events, in 
addition to allowing for fewer total diving events.''
    NASA's alternate standard application also explained that NASA 
employees working within the NBL work together to ensure that qualified 
personnel and certified systems are available to meet NASA's EVA 
requirements. NASA stated that safety and utility divers support suited 
trainees at all times in the water. Suited crew utilize surface-
supplied nitrox via an umbilical, and support divers breath nitrox via 
self-contained underwater breathing apparatus (SCUBA) while working in 
the tank. NBL activities routinely involve dozens of trainees and 
divers, requiring hundreds of dive hours per week. NASA asserted in the 
alternate standard application that all divers are physically examined 
by the NBL medial officer or a human test support group medical 
technical for fitness prior to entering the water. Suited subjects have 
their fitness to dive exam performed by the medical officer only. This 
exam includes vital signs and changes to medical history, including but 
not limited to, medications, physical fitness, as well as 
cardiopulmonary and ear, nose and throat examinations. Divers and 
suited subjects may be disqualified, if there are any concerning 
abnormalities, pending treatment or further evaluation and management. 
NASA also certified that the application of the alternate standard will 
only apply to the NBL and will not be used during the other underwater 
activities that NASA performs.
    After fully considering NASA's application and its responses to 
OSHA's follow-up questions (Docket No. OSHA-2022-0010-0004), OSHA 
granted the alternate standard that NASA proposed for use solely at 
NASA's NBL (Docket No. OSHA-2022-0010-0002). KBR now seeks an interim 
order and permanent variance based on the alternate standard that OSHA 
granted to NASA covering their employees conducting commercial diving 
operations at the NBL.
    As a NASA contractor, KBR asserts that their divers must strictly 
follow the requirements of the NBL, which include following the 
conditions of the NASA Alternate Diving Standard. However, the NASA 
Alternate Diving Standard's coverage does not include KBR-employed 
divers, even though they work side-by-side with NASA-employed divers 
during NBL operations. KBR states that their divers undergo the same 
training as NASA NBL employees, and that there are no differences 
between NASA and KBR divers regarding medical clearance procedures and 
standards, training materials, equipment used, equipment maintenance, 
and diving procedures used. Accordingly, KBR seeks permission from OSHA 
to conduct diving activities for NASA at the NBL under the same 
standard regulating the time required for NASA employees, diving at the 
NBL, on nitrox and within the no-decompression limits, pursuant to the 
NASA Alternate Diving Standard at 29 CFR 1910.432(b)(2).

B. Requested Variance From 29 CFR 1910.423(b)(2), Requirements for 
Decompression Chambers 2
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    \2\ 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: for any dive outside the no-
decompression limits, deeper than 100 fsw, or using mixed gas as a 
breathing mixture, the employer must instruct the diver to remain awake 
and in the vicinity of the decompression chamber that is at the dive 
location for at least one hour after the dive (including decompression 
or treatment as appropriate) (1910.423(b)(2)).
    In adopting the conditions of the NASA Alternate Diving Standard, 
KBR's application proposes deviating from the decompression chamber 
availability and capability requirements in OSHA's CDO standard. As 
OSHA explained when it granted the NASA Alternate Diving Standard, the 
purpose of having a decompression chamber available and ready for use 
at a dive site is to treat 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 without 
proper exhalation. If 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.
    KBR's proposed variance would adopt the conditions of the NASA 
Alternate Diving Standard that permits NASA to deviate from the 
requirement of 1910.423(b)(2) that the employer instruct all divers who 
dive deeper than 100 fsw or who dive using mixed breathing gas to 
remain awake and in the vicinity of a decompression chamber for one 
hour after the dive, by allowing divers at NASA's NBL who are diving on 
nitrox, within the no decompression limits, to be instructed to remain 
awake and in the vicinity of the decompression chamber at the dive 
location for at least 10 minutes after the dive. In other words, 
alternate Section 1910.423(b)(2) requires that any NASA diver at NASA's 
NBL who dives using nitrox within the no decompression limits will be 
instructed to remain awake and in the vicinity of the decompression 
chamber for at least ten minutes after the completion of the dive.
    When granting NASA an alternate standard to 1910.423(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

[[Page 80774]]

chamber requirements (see 69 FR 7351 (February 17, 2004)).\3\ 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.
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    \3\ 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).
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    OSHA explained in the NASA Alternate Diving Standard that it 
created this exemption for 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.
    After considering the statistics and information regarding NBL 
operations that NASA submitted, OSHA concluded that NASA's proposed 
alternate standard would provide equivalent protection to the CDO 
standard when NBL divers use nitrox breathing-gas mixtures. KBR's 
proposed variance would adopt the same conditions under which OSHA 
granted the alternate standard to 1910.423(b)(2) to NASA for NBL dives 
in which KBR divers participate.
    Based on the technical review of KBR's application, the NASA 
Alternate Diving Standard, and related supporting material, OSHA 
preliminarily finds that the proposed conditions would provide KBR 
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 NASA-employed and KBR-employed divers who dive 
at the NBL; diver safety is best promoted where diving safety rules are 
clear and consistently applicable to all divers at a worksite. For 
these reasons, OSHA believes that diving safety for the NBL will be 
maximized when the diving practices of KBR-employed divers are 
identical to those of NASA-employed divers. Accordingly, OSHA has 
decided to grant the interim order and preliminarily determined to 
grant the permanent variance to KBR on those same conditions.

III. Agency Preliminary Determinations

    After reviewing the proposed alternatives, OSHA has preliminarily 
determined that the applicant's proposed alternative on the whole, 
subject to the conditions in the request and imposed by this interim 
order, provide measures that are as safe and healthful as those 
required by the OSHA standard addressed in section II of this document.

IV. Grant of Interim Order, Proposal for Permanent Variance, and 
Request for Comment

    OSHA hereby announces the decision to grant an interim order 
allowing KBR's employees to perform diving operations at NASA's NBL, 
subject to the conditions that follow in this document. This interim 
order will remain in effect until the agency modifies or revokes the 
interim order or makes a decision on KBR's application for a permanent 
variance. During the period starting with the publication of this 
notice or until the agency modifies or revokes the interim order or 
makes a decision on the application for a permanent variance, the 
applicant is required to comply fully with the conditions of the 
interim order as an alternative to complying with the requirement of 29 
CFR 1910.424(b)(2), including the condition identified in the NASA 
Alternate Diving Standard that:

    Requires divers at NASA's Neutral Buoyancy Laboratory, in 
Houston, Texas, conducting dives using nitrox, within the no-
decompression limits, to remain awake and in the vicinity of the 
decompression chamber at the dive location for at least 10 minutes 
after the dive.

    As described earlier in this notice, KBR proposes to adopt the 
conditions of the NASA Alternate Diving Standard, which OSHA granted to 
NASA on June 30, 2021, as the conditions of the interim order and 
permanent variance. In addition to adopting the NASA Alternate Diving 
Standard's conditions for deviating from the decompression chamber 
provisions of Subpart T, OSHA has added several conditions, which the 
agency believes are necessary to ensure the safety of KBR's divers who 
conduct commercial diving operations for NASA at the NBL.
    After comprehensive review of the record, the agency preliminarily 
finds that adherence to the conditions of the proposed variance would 
provide the applicant's workers with a workplace that will be at least 
as safe and healthful as if the applicant complied with the 
requirements of 29 CFR 1910.423(b)(2). After reviewing all available 
information, including KBR's variance application, NASA's application 
for the alternate diving standard, and OSHA's analysis and subsequent 
granting of the NASA alternate standard, OSHA has decided to grant the 
interim order and preliminarily determined to grant the permanent 
variance to KBR on those same conditions.
    In order to avail itself of the interim order, KBR must: (1) comply 
with the conditions listed in the interim order for the period starting 
with the grant of the interim order until the agency modifies or 
revokes the interim order or makes a decision on the application for a 
permanent variance); (2) comply fully with all other applicable 
provisions of 29 CFR part 1910 and Subpart T; and (3) provide a copy of 
this Federal Register notice to all employees affected by the proposed 
conditions, including the affected employees of other employers, using 
the same means it used to inform these employees of the application for 
a permanent variance.
    OSHA is also proposing that the same requirements (see above 
section II, part B) would apply to a permanent variance if OSHA 
ultimately issues one. OSHA requests comment on the preliminary 
determination that the specified alternative and conditions would 
provide a workplace as safe and healthful as those required by the 
standard from which the variance is sought. After reviewing comments, 
OSHA will publish in the Federal Register the agency's final decision 
approving or rejecting the request for a permanent variance.

V. Description of the Conditions Specified by the Interim Order and the 
Permanent Variance

    This section describes the alternative means of compliance with the 
provisions of 1910.423(b)(2) and provides additional detail regarding 
the proposed conditions that form the basis of KBR's application for an 
interim order and permanent variance. As indicated earlier in this 
notice, KBR seeks the interim order and permanent variance based on 
proposed conditions derived from the conditions of the alternate 
standard that OSHA granted to NASA on June 30, 2021 (Docket No. OSHA-
2022-0010-0002). The below-described conditions form the basis of the 
interim order and the requested permanent variance.\4\
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    \4\ In these conditions, OSHA is using the future conditional 
form of the verb (e.g., ``would''), which pertains to the 
application for a permanent variance but the conditions are 
mandatory for the purposes of the interim order.
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Proposed Condition A: Scope

    The scope of the proposed permanent variance would limit coverage 
only to the commercial diving operations performed at NASA's NBL. 
Clearly defining the scope of the proposed permanent variance provides 
KBR, KBR's employees, potential future

[[Page 80775]]

applicants, other stakeholders, the public, and OSHA with necessary 
information regarding the work situations in which the proposed 
permanent variance would apply. To the extent that KBR exceeds the 
defined scope of this variance, it would be required to comply with 
OSHA's standards.
    Pursuant to 29 CFR 1905.11, an employer (or class or group of 
employers) \5\ may request a permanent variance for a specific 
workplace or workplaces. If OSHA approves a permanent variance, it 
would apply only to the specific employer(s) that submitted the 
application and only to the specific workplace or workplaces designated 
in the application. In this instance, if OSHA were to grant a permanent 
variance, it would apply to only the applicant, KBR, and only to work 
at NASA's Neutral Buoyancy Laboratory. As a result, it is important to 
understand that if OSHA were to grant KBR a permanent variance, it 
would not apply to any other employers. Additionally, coverage is 
limited to the work situations specified under the ``Scope and 
Application'' section of Subpart T, Commercial Diving Operations 
(1910.401(a)), and would not apply to commercial diving operations that 
are already exempted under 1910.401(a)(2).\6\ Accordingly the scope 
specifies that the interim order and proposed variance will only apply 
to dives occurring at NASA's Neutral Buoyancy Laboratory and within 
OSHA's geographical authority. When implementing the conditions of the 
proposed permanent variance, KBR 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 1910.423(b)(2).
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    \5\ A class or group of employers (such as members of a trade 
alliance or association) may apply jointly for a variance provided 
an authorized representative for each employer signs the application 
and the application identifies each employer's affected facilities.
    \6\ 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.''
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    The interim order only applies to KBR's employees when they conduct 
diving operations at NASA's Neutral Buoyancy Laboratory, as would the 
permanent variance should OSHA decide to grant it.

Proposed Condition B: Duration

    The interim order is only intended as a temporary measure pending 
OSHA's decision on the permanent variance, so this condition specifies 
the duration of the order. If OSHA approves a permanent variance, it 
would specify the duration of the permanent variance.

Proposed Condition C: List of Abbreviations

    Proposed condition C defines several abbreviations used in the 
proposed permanent variance. OSHA believes that defining these 
abbreviations serves to clarify and standardize their usage, thereby 
enhancing the applicant and their employees' understanding of the 
conditions specified by the proposed permanent variance.

Proposed Condition D: Requirements for Decompression Chambers

    This proposed condition requires that, for any dive that is within 
the no-decompression limits and using nitrox as a breathing mixture, 
KBR will instruct the diver to remain awake and in the vicinity of the 
decompression chamber which is at the dive location for at least ten 
minutes after the dive (including decompression or treatment as 
appropriate). When using a nitrox breathing-gas mixture, KBR will be 
required to meet the no-decompression provisions of Appendix C to the 
CDO rule (``Use of No-Decompression Limits'').

Proposed Condition E: Communication

    This proposed condition requires the applicant to develop and 
implement an effective system of information sharing and communication. 
Effective information sharing and communication are intended to ensure 
that affected workers receive updated information regarding any safety-
related hazards and incidents, and corrective actions taken, prior to 
the start of each shift. The proposed condition also requires the 
applicant to ensure that reliable means of emergency communications are 
available and maintained for affected workers and support personnel 
during diving activities. Availability of such reliable means of 
communications would enable affected workers and support personnel to 
respond quickly and effectively to hazardous conditions or emergencies 
that may develop during diving activities at NASA's NBL.

Proposed Condition F: Worker Qualification and Training

    This proposed condition requires KBR to follow the requirements of 
the NASA NBL Safety Program, including the NBL Safe Practices Manual as 
well as any instruction provided by NASA's Dive Safety Board (NSB) to 
qualify their employees to perform diving activities at the NBL. 
Further, KBR must ensure that all employees conducting dives at the NBL 
are physically examined by the NBL medical officer of the day or a 
human test support group medical technician for fitness to dive prior 
to entering the water. The proposed condition specifies actions an 
affected worker must be able to perform safely during diving 
activities, including how to enter, work in, and exit from hyperbaric 
conditions under both normal and emergency conditions. Having well-
trained and qualified workers performing the required dive tasks 
ensures that they recognize and respond appropriately to underwater 
safety and health hazards. These qualification and training 
requirements enable KBR divers to cope effectively with emergencies, as 
well as the discomfort and physiological effects of hyperbaric 
exposure, thereby preventing worker injury, illness, and fatalities.

Proposed Condition G: Recordkeeping

    Under OSHA's existing recordkeeping requirements in 29 CFR part 
1904 regarding Recording and Reporting Occupational Injuries and 
Illnesses, KBR must maintain a record of any recordable injury, 
illness, or fatality (as defined by 29 CFR part 1904) resulting from 
exposure of an employee to hyperbaric conditions by completing the OSHA 
Form 301 Incident Report and OSHA Form 300 Log of Work-Related Injuries 
and Illnesses. The applicant did not seek a variance from this standard 
and therefore must comply fully with those requirements.

Proposed Condition H: Notifications

    Proposed Condition H adds additional reporting responsibilities, 
beyond those already required by the OSHA standard. The applicant would 
be required to maintain records of specific factors associated with 
each diving activity. The information gathered and recorded under this 
provision, in concert with the information provided under proposed 
Condition I (using OSHA Form 301 Injury and Illness Incident Report to 
investigate and record dive-related recordable injuries as defined by 
29 CFR parts 1904.4, 1904.7, and 1904.8--1904.12), would enable the 
applicant and OSHA to assess the effectiveness of

[[Page 80776]]

the interim order and proposed permanent variance in preventing DCS and 
other dive-related injuries and illnesses.\7\
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    \7\ 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 FR 56130, September 18, 2014 (more 
information available at: (https://www.osha.gov/recordkeeping2014/).
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    Under the proposed condition, the applicant is required, within 
specified periods of time, to notify OSHA of: (1) any recordable 
injury, illness, in-patient hospitalization, amputation, loss of an 
eye, or fatality that occurs as a result of NBL dive-related operations 
within eight (8) hours of the incident; (2) provide OTPCA and the 
Houston South Texas Area Office within twenty-four (24) hours of the 
incident with a copy of the incident investigation report (using OSHA 
Form 301 Injury and Illness Incident Report); (3) include on OSHA Form 
301 Injury and Illness Incident Report information on the hyperbaric 
conditions associated with the recordable injury or illness, the root-
cause determination, and preventive and corrective actions identified 
and implemented; (4) provide the certification that affected workers 
were informed of the incident and the results of the incident 
investigation; (5) notify OTPCA and the Houston South Texas OSHA Area 
Office within 15 working days should the applicant revise their dive 
procedures to accommodate changes in their diving operations that 
affect their ability to comply with the conditions of the proposed 
permanent variance; and (6) provide OTPCA and the Houston South Texas 
OSHA Area Office, by the fifteenth (15th) of January, at the beginning 
of each new calendar year, 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 for completing and 
submitting the hyperbaric exposure-related (recordable) incident 
investigation report (OSHA 301 Injury and Illness Incident Report) is 
more restrictive than the current recordkeeping requirement of 
completing OSHA Form 301 Injury and Illness Incident Report within 
seven (7) calendar days of the incident (1904.29(b)(3)). This modified, 
more stringent incident investigation and reporting requirement is 
restricted to intervention-related diving (recordable) incidents only. 
Providing rapid notification to OSHA is essential because time is a 
critical element in OSHA's ability to determine the continued 
effectiveness of the variance conditions in preventing injuries and 
illnesses, and the applicant's identification and implementation of 
appropriate corrective and preventive actions.
    Further, these notification requirements also enable the applicant, 
their employees, and OSHA to assess the effectiveness of the permanent 
variance in providing the requisite level of safety to the applicant's 
workers and based on this assessment, whether to revise or revoke the 
conditions of the proposed permanent variance. Timely notification 
permits OSHA to take whatever action may be necessary and appropriate 
to prevent possible further injuries and illnesses. Providing 
notification to employees informs them of the precautions taken by the 
applicant to prevent similar incidents in the future.
    Additionally, this proposed condition requires the applicant to 
notify OSHA if it ceases to do business, has a new address or location 
for the main office, or transfers the operations covered by the 
proposed permanent variance to another company. In addition, the 
condition specifies that the transfer of the permanent variance to 
another company must be approved by OSHA. These requirements allow OSHA 
to communicate effectively with the applicant regarding the status of 
the proposed permanent variance, and expedite the agency's 
administration and enforcement of the permanent variance. Stipulating 
that an applicant is required to have OSHA's approval to transfer a 
variance to another company provides assurance that the successor 
company has knowledge of, and will comply with, the conditions 
specified by proposed permanent variance, thereby ensuring the safety 
of workers involved in performing the operations covered by the 
proposed permanent variance.

VI. Specific Conditions of the Interim Order and the Proposed 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 
1910.424(b)(2). The following conditions apply to the interim order 
that OSHA is granting to KBR. In addition, these conditions specify the 
alternative means of compliance that OSHA proposes for KBR's requested 
permanent variance from the above-listed provision of subpart T of 29 
CFR part 1910.
    The conditions would apply with respect to all employees of KBR 
participating in diving operations as part of NASA's NBL. These 
conditions are outlined in this Section:

A. Scope

    The interim order applies, and the permanent variance would apply 
only to KBR's diving operations conducted for NASA and performed at 
NASA's NBL; and
    Performed in compliance with all applicable conditions of subpart T 
of 29 CFR 1910 except for the requirement specified by 29 CFR 
1910.423(b)(2) when conducting commercial diving operations.

B. Duration

    The interim order granted to KBR will remain in effect until OSHA 
modifies or revokes this interim order or grants KBR's request for a 
permanent variance in accordance with 29 CFR 1905.13, whichever comes 
first.

C. 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
CFR--Code of Federal Regulations
DCS--Decompression Sickness
DSB--Dive Safety Board
EAD--Equivalent Air Depth
EVA--Extravehicular Activities
fsw--feet of seawater
KBR--KBR Wyle Services, LLC
NBL--NASA Neutral Buoyancy Laboratory
OSHA--Occupational Safety and Health Administration
OTPCA--OSHA's Office of Technical Programs and Coordination 
Activities
SCUBA--Self-Contained Underwater Breathing Apparatus

D. Requirements for Decompression Chambers

    For any dive at the NBL that is within the no-decompression limits 
and using nitrox as a breathing mixture, KBR would instruct the diver 
to remain awake and in the vicinity of the decompression chamber at the 
dive location for at least ten (10) minutes after the dive (including 
decompression or treatment as appropriate).

E. Communication

    This proposed condition requires the applicant to develop and 
implement an effective system of information sharing and communication. 
Effective information sharing and communication are intended to ensure 
that affected

[[Page 80777]]

workers receive updated information regarding any safety-related 
hazards and incidents, and corrective actions taken, prior to the start 
of each shift. The proposed condition also requires the applicant to 
ensure that reliable means of emergency communications are available 
and maintained for affected workers and support personnel during diving 
activities. Availability of such reliable means of communications would 
enable affected workers and support personnel to respond quickly and 
effectively to hazardous conditions or emergencies that may develop 
during diving activities at NASA's NBL.

F. Worker Qualification and Training

    KBR would be required to:
    1. Follow the requirements of the NASA NBL Safety Program, 
including the NBL Safe Practices Manual, as well as any instruction 
provided by NASA's DSB;
    2. Ensure that prior to entering the water, all KBR employees 
conducting dives at the NBL have been physically examined for fitness 
to dive by the NBL medical officer of the day or a human test support 
group medical technician.

G. Recordkeeping

    In addition to completing OSHA Form 301 Injury and Illness Incident 
Report and OSHA Form 300 Log of Work-Related Injuries and Illnesses, 
KBR would have to:
    1. Maintain records of recordable injuries that occur as a result 
of diving operations conducted for NASA under the NBL;
    2. Ensure that the information gathered and recorded under this 
provision, in concert with the information provided under proposed 
condition G (using OSHA Form 301 Incident Report Form) to investigate 
and record dive-related recordable injuries as defined by 29 CFR parts 
1904.4, 1904.7, and 1904.8--1904.12, would enable KBR and OSHA to 
determine the effectiveness of the proposed permanent variance in 
preventing DCS and other dive-related injuries and illnesses.

H. Notifications

    KBR would be required to:
    1. Notify OSHA's Office of Technical Programs and Coordination 
Activities (OTPCA) and the Houston South Texas OSHA Area Office 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 Houston South Texas OSHA Area Office 
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 their certification that they informed affected divers 
of the incident and the results of the incident investigation;
    5. Notify OTPCA and the Houston South Texas OSHA Area Office within 
fifteen (15) working days should the applicant need to revise their 
dive procedures to accommodate changes in their diving operations that 
affect their ability to comply with the conditions of the proposed 
permanent variance;
    6. Obtain OSHA's written approval prior to implementing the 
revision in their dive procedures to accommodate changes in their 
diving operations that affect their 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 Houston South Texas OSHA Area Office, 
with a report summarizing the dives completed during the previous year 
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 their 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.

VII. Authority and Signature

    James S. Frederick, 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. 8-2020 (85 FR 58393, Sept. 18, 2020), and 29 CFR 
1905.11.

    Signed at Washington, DC.
James S. Frederick,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2023-25567 Filed 11-17-23; 8:45 am]
BILLING CODE 4510-26-P