[Federal Register Volume 84, Number 94 (Wednesday, May 15, 2019)]
[Notices]
[Pages 21822-21832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09988]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2015-0024]
Jardon and Howard Technologies, Incorporated; Grant of a
Permanent Variance
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice.
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SUMMARY: In this notice, OSHA grants a permanent variance to Jardon and
Howard Technologies, Incorporated from several provisions of OSHA
standards that regulate commercial diving operations in Subpart T of
OSHA's general industry standards.
DATES: The permanent variance specified by this notice becomes
effective on May 15, 2019 and shall remain in effect until it is
modified or revoked.
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
or 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, U.S. Department of Labor; telephone:
(202) 693-2110 or email: robinson.kevin@dol.gov.
SUPPLEMENTARY INFORMATION: Copies of this Federal Register notice.
Electronic copies of this Federal Register notice are available at
http://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 http://www.osha.gov.
I. Notice of Application
Jardon and Howard Technologies, Incorporated, (``JHT'' or
``applicant''), submitted on September 25, 2015, an application for a
permanent multi-state variance and interim order 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)''). JHT's application seeks a permanent variance from the
provisions in OSHA's standards that regulate commercial diving
operations (CDO), located in Subpart T of 29 CFR 1910, that require:
(1) A buoyancy compensator to have a 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'') (see Section II.A. for further information on NOAA's
Alternate Diving Standards). To account for the technological advances
and design improvements that have been made to buoyancy compensatory
devices (BCD) since OSHA first published the CDO standard in 1977 (see
42 FR 37662 (July 22, 1977)), the NOAA Alternate Diving Standards
permit NOAA to use modern BCD 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
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 stated in the application that 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). JHT requested the permanent variance to permit JHT to deviate
from the below-discussed provisions of OSHA's CDO standard based on the
same conditions that apply to NOAA divers under the NOAA Alternate
Diving Standards, thus permitting JHT's divers to dive under the same
standards under which their NOAA-employed colleagues are permitted to
dive.
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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/owandisp.show_document?p_table=DIRECTIVES&p_id=4254.
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JHT's application contends that the permanent variance would
provide employees with a place of employment that is at least as safe
and healthful as they are able to obtain under the existing provisions
of OSHA's CDO standard. JHT certifies that all affected employees
received a copy of the variance application and informed them of their
right to petition the Assistant Secretary of Labor for Occupational
Safety and Health for a hearing on its variance application.
OSHA considered JHT's application for a permanent variance and
interim order and, on August 2, 2017, OSHA published a preliminary
Federal Register notice announcing JHT's application, granting an
interim order, and requesting comments (82 FR 35995 (Aug. 2, 2017)).
During the comment period, which expired on September 2, 2017, OSHA
received one comment from NOAA, who expressed support for granting JHT
the permanent variance, made clarifications and corrections to the
information in its application materials and OSHA's Federal Register
notice, and suggested several changes to the terms of the permanent
variance (OSHA-2015-0025-0010). NOAA's comment also requested that the
permanent variance be extended to cover all companies who provide
contract employees to dive under the NDP. After considering NOAA's
comment, OSHA has decided to accept the majority of NOAA's requested
changes to the terms of the permanent variance, but has not accepted
NOAA's request to extend this permanent variance to cover contractors
other than JHT. OSHA's responses to NOAA's comment are discussed
further in Section III of this notice.
II. Supplementary Information Regarding the Variance Application
A. Background
As a NOAA contractor, JHT asserts that its divers are required to
strictly follow the requirements of the NDP. But, even though NOAA-
employed and JHT-employed divers work side-by-side during NDP
operations, NOAA-employed divers are authorized to dive in accordance
with the NOAA Alternate Diving Standards, while contractor divers (such
as those employed by JHT) are not. JHT states that its divers undergo
exactly the same training as NOAA employees who are also covered by 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 (Ex. OSHA-2015-0024-0003, p. 1). JHT states that while the
majority of the dives that JHT performs under the NDP are ``scientific
dives'' that are exempted from OSHA's CDO standard,\5\ 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 chambers that
OSHA has permitted NOAA-employed NDP divers to follow, 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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OSHA granted NOAA the alternate standards in 2014 in response to an
application that NOAA submitted to OSHA in June 2011 proposing a total
of 12 alternate standards to 29 CFR 1910, Subpart T, which included
extensive introductory, background, and explanatory information in
support of the application (Exhibit OSHA-2015-0024-0006, Proposed
Alternate Diving Standards for the National Oceanic and Atmospheric
Administration). After fully considering NOAA's application and
responses to OSHA's follow up questions (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
(Exhibit OSHA-2015-0024-0008). JHT's September 25, 2015 application
sought a permanent variance and interim order based on six of the
alternate standards that OSHA granted to NOAA in the NOAA Alternate
Diving Standards.
NOAA explained in its application materials for the alternate
standards that it conducts dives under two major programs: The NOAA
Diving Program (NDP) and the National Undersea Research Program (NURP).
The NDP primarily supports intra agency intramural research programs
conducted by personnel within NOAA's major line offices, while NURP
primarily supports external 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'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'' (Revised December 2011) and the
``NOAA Working Diving Standards and Safety Manual'' (Version 1.0, July
14, 2011) 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 reflect 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 with a U.S. Coast
Guard Certificate of Inspection (COI), also known as ``inspected
vessels,'' and facilities under the jurisdiction of the U.S. Coast
Guard.
B. Variance From Paragraphs (d)(3) and (d)(4) of 29 CFR 1910.430,
Requirements for Inflatable Flotation Devices
Following the terms of the NOAA Alternate Diving Standards, JHT's
variance application seeks permission to use modern buoyancy
compensator devices (BCD) 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) BCD 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 BCD that are inflated by a source other than the
diver's breathing gas (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
BCD. 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 BCD, 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 BCD
can be fully inflated with a volume of gas equivalent to that consumed
in three or fewer breaths. Therefore, NOAA asserted that taking such
small amounts of gas from the SCUBA cylinder would have minimal effect
on the duration of a dive. This also reduces consumption by making the
diver ``neutrally buoyant.''
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 BCD 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 BCD 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 at 37633), ``[a
reserve] supply is essential to the safety of the SCUBA diver,'' and
employers must take precautions to ``assure that the air reserve would
not be depleted inadvertently during the dive.'' OSHA ultimately
concluded that NOAA's proposed alternate standards provide 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 BCD with breathing gas, but with less safety risk (e.g.,
over-inflation) than using carbon-dioxide cartridges. Therefore, using
these manual BCD power inflators to inflate a BCD with breathing gas
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 NOAA's policy that divers always have topside support and
never dive alone except when line tended, 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 BCD 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 BCD 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 BCD (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 BCD have more lift, fewer straps
(reducing entanglement hazards, particularly when removing the BCD in
an emergency, or when used in conjunction with a weight harness),
require fewer steps to don, would 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 BCD to maintain a
diver in a face-up position is fully mitigated 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 them oriented 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 BCD 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 at 37666). BCD were not commercially
available when the CDO standard was published, and OSHA therefore
articulated minimum design standards for inflatable flotation devices
in the final rule. OSHA agreed in the NOAA Alternate Diving Standards
that the flotation design of contemporary BCD is superior to the
equipment that was in use when OSHA published the CDO standard in 1977.
OSHA further explained that modern BCD 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 standards 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.
JHT's proposed variance includes the very same condition under
which OSHA approved 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 the requested variance from the inflatable flotation device
requirements in 1910.430(d)(3) and (d)(4), and has decided to grant the
permanent variance to JHT on those same conditions.
C. 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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Adopting the conditions of the NOAA Alternate Diving Standards,
JHT's application proposes conditions that would allow it to deviate
from the 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 to 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 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/would require a chamber, eliminating the safety
hazard inherent in operations which are planed below that depth . .
. . OSHA believes that this provision will/would 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.
NOAA's application sought permission to conduct SCUBA dives within
the no-decompression limit up to 130 FSW (rather that 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.
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\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).
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OSHA explained in granting the NOAA Alternate Diving Standards that
it created this exemption for recreational diving instructors and
diving guides because the agency determined that the elevated levels of
oxygen in nitrox breathing-gas mixtures reduced the incidence of DCS
compared to breathing air at the same depths, and therefore found that
the risk of DCS was minimal. This determination justified OSHA's use in
Appendix C of the equivalent-air-depth (EAD) formula from NOAA's 2001
Diving Manual to calculate the no-decompression limits that should
apply to a dive depending on the nitrogen partial pressures in the gas.
As explained in the preamble to the Appendix C final rule (69 FR at
7356), the EAD formula assumes that equivalent nitrogen partial
pressures and dive durations would result in similar DCS risk to dives
performed with air. 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, OSHA required NOAA to
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.
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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
Planer,'' published in 1994 by Hamilton Research Ltd. (known
commonly as the ``1994 DSAT No-Decompression Tables'').
(b) A 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.
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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
the 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 vessel 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 that 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 at 37661-63). Accordingly, OSHA
stated that mono-lock chambers may be an option for transporting divers
to larger chambers, but it does not provide divers with protection that
is equivalent to the CDO standard's requirements. Therefore, OSHA 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
at 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 6-ATA
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 at 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 granted the NOAA Alternate
Diving Standards under these conditions, and JHT now seeks to conduct
NDP dives according to the same conditions.
Based on a technical review of the JHT's application, the NOAA
Alternate Diving Standards, and related supporting material, OSHA 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.
D. Multi-State Variance
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
has conducted diving operations with NOAA 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
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 the 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.
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\10\ Six State Plans (Connecticut, Illinois, Maine, New Jersey,
New York, and the Virgin Islands) limit their occupational safety
and health authority to state and local employers only. State Plans
that exercise their occupational safety and health authority over
both public- and private-sector employers are: Alaska, Arizona,
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and
Wyoming.
\11\ See OSHA Directive Number: CPL-02-00-151, ``29 CFR part
1910, subpart T--Commercial Diving Operations'' [Dated: 06/13/2011],
available at:
http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-151.pdf].
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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. Michigan and Oregon adopted
diving standards 29 CFR part 1910, subpart T by reference, although
Oregon's diving standards include additional State-specific rules.\13\
Washington's diving standards do not adopt 29 CFR part 1910, subpart T
by reference, but include rules that are identical to each of the
federal requirements at issue in JHT's application (see Washington
Administrative Code, Chapter 296-37, Sec. Sec. 510-595). California's
diving operations standards contain two rules that are substantively
identical to two of the OSHA standards at issue in JHT's application
(see California Code of Regulations, Title 8, Subchapter 7, Group 26
Sec. Sec. 6062(b)(1) and (3)((A)-(C)) (substantively identical to 29
CFR 1910.423(c)(1) and (c)(3)). Exhibit OSHA-2015-0024-0009 provides a
side-by-side comparison of the Washington and California standards that
are identical in substance and requirements to the Federal OSHA
standards at issue in this variance application.
---------------------------------------------------------------------------
\12\ See 20 A.A.C. 5 Sec. R20-5-602.01 (adopting OSHA's CDO
Standard with the exception of 29 CFR 1910.401(a)(2)(ii)), available
at: http://apps.azsos.gov/public_services/Title_20/20-05.pdf.
\13\ See Michigan's Occupational Health Standards, Part 504,
Sec. R 325.50303, ``Adoption by reference of federal standard,''
available at: http://www.michigan.gov/documents/lara/lara_miosha_OH_504_417497_7.pdf; Oregon Admin. Rule 437 002-0340,
``Adoption by Reference,'' available at: http://osha.oregon.gov/OSHARules/div2/div2T.pdf#page=7.
---------------------------------------------------------------------------
JHT certified in its application that it has not filed an
application for a permanent variance on the same material facts with a
State Plan program. JHT's variance application fits the parameters of
29 CFR 1902.8, and Federal OSHA's action on this application will be
deemed prospectively an authoritative interpretation of JHT's
compliance obligations regarding the applicable state standards in the
places of employment covered by the application. As part of the
permanent variance process, OSHA's Directorate of Cooperative and State
Programs will notify all State Plans that are potentially affected by
OSHA's decision to grant JHT a permanent variance.
III. Comments on the Proposed Variance
On August 2, 2017, OSHA published a preliminary notice announcing
JHT's application, granting an interim order, and requesting comments
(82 FR 35995 (Aug. 2, 2017)). In response, OSHA received one public
comment on the proposed variance application from NOAA, who expressed
support for granting JHT the permanent variance, made clarifications
and corrections to the information in the notice, and suggested several
changes to the terms of the permanent variance (OSHA-2015-0024-0010).
As explained below, OSHA has accepted some of NOAA's requested changes
to the terms of the permanent variance and declined others.
Regarding proposed Condition A, which governs the scope of the
variance (82 FR at 36002), NOAA commented on the language in proposed
Paragraphs (1) and (2) that limited the applicability of the variance
to ``commercial diving operations conducted for NOAA under the NDP from
a NOAA vessel commercial diving operations,'' and ``from an uninspected
vessel within OSHA's geographical authority.'' NOAA explained that the
NDP dives are launched from a variety of platforms, including
uninspected vessels operated by NOAA, as well as inspected vessels
contracted by NOAA, piers, docks, and shore. Because not all NDP dives
are conducted from NOAA vessels, NOAA commented that the variance would
have greater applicability if these paragraphs were changed to include
all dives under the control of the NDP and within the jurisdiction of
OSHA. After considering this comment, OSHA determined that a change to
the conditions of the permanent variance was warranted. The conditions
to the variance provide JHT divers with protection equivalent to the
CDO standard irrespective of whether the dive site is a vessel or a
pier, dock, or shore, and diver safety is best promoted where diving
safety rules are clear and consistently applicable to all divers at all
worksites. Accordingly, OSHA has revised paragraphs (1) and (2) of
Condition A so that the variance applies to all dives under the control
of the NDP and within the jurisdiction of OSHA.
Regarding proposed Condition E, which concerns worker qualification
and training requirements (82 FR at 36003), NOAA provided a comment on
the requirement in paragraph (1) that requires JHT to 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). NOAA stated that JHT
does not have a diving program, but rather relies on the NDP to train,
equip, medically monitor and supervise its divers. NOAA therefore
suggested that OSHA change this condition so that it requires JHT to
ensure that its divers adhere to all requirements of the NDP, a program
which meets the requirements set forth in 29 CFR 1910.410. Given JHT's
relationship with NOAA and the limited scope of the variance, OSHA
determined that changing Condition E to require that JHT's
qualification and training program also meet the requirements of the
NDP is warranted. OSHA does not agree, however, with NOAA's suggestion
that the NDP alone should substitute for JHT's obligation to develop
and implement an effective qualification and training program for its
divers. Accordingly, OSHA revised paragraph (1) of Condition E of the
permanent variance so that it requires JHT to develop a qualification
and training program that, at a minimum, meets all
of the requirements of 29 CFR 1910.410 and all of the requirements of
the NDP.
NOAA also commented on the requirement in paragraph (2) of proposed
Condition E that required JHT's affected divers to successfully
complete NDP's three-week, 140-hour ``Working Diver'' course. NOAA
explained that the ``Working Diver'' course was discontinued in
September 2014 and replaced with a modular course that also provides a
three-week training evolution. NOAA commented that OSHA should change
the language so that it requires JHT divers to complete all training
required by the NDP to become a NOAA diver. After considering this
comment, OSHA determined that a change to the conditions of the
permanent variance was warranted. Removing the reference to the
specific course will avoid the confusion that would result from
requiring JHT to complete a discontinued course, and will maintain the
original intent of the provision, which was to ensure that JHT's divers
complete the same training that NOAA requires for its NDP divers.
Accordingly, OSHA has updated paragraph (2) of Condition E of the
permanent variance to remove any reference to the ``Working Diver''
course, and instead require that JHT ensure that each affected diver
successfully completes all training required by the NOAA Diving Program
that is required to become a NOAA Diver.
NOAA also commented on paragraph (3) to proposed Condition E, which
required JHT to ensure that its diver training program include eight
specific safety-related components. NOAA stated that JHT does not have
a diver training program, and instead relies on the NDP to train its
divers, but all of the listed components in paragraph (3) are included
in the NDP's diver authorization requirements. NOAA suggested that OSHA
revise the paragraph so that it requires JHT's divers to complete all
continuing training required by the NDP to maintain their status as an
authorized NOAA diver. After considering this comment, OSHA determined
that revising the condition is warranted. The permanent variance only
applies to JHT divers when they dive for NOAA as part of the NDP, and
to be authorized to dive for the NDP, a JHT diver must satisfy all of
the eight components listed in paragraph (3). Accordingly, OSHA has
revised paragraph (3) of Condition E of the permanent variance so that
JHT must ensure that all of its divers complete all continuing training
required by the NDP to maintain status as an authorized NOAA diver, and
that such training must, at a minimum, include the eight components
listed in paragraph (3).
Regarding proposed Condition G, which provides various OSHA
notification requirements (82 FR at 36003), NOAA commented that the
condition in paragraph (2) to provide OSHA with any recordable dive-
related incident investigation reports (using OSHA Form 301) within 24
hours of the incident does not provide sufficient time to determine the
scope of a diving injury, assess root causes, and determine corrective
action. The comment further noted that this expedited reporting
requirement was not placed upon NOAA under the Alternate Standards to
the Commercial Diving Standards, and that NOAA may submit such reports
within seven (7) days of the incident. Because JHT divers will only
dive under the control of the NDP, NOAA commented that the expedited
reporting requirement for incidents involving JHT's divers was onerous.
After considering this comment, OSHA determined that no change to this
condition of the permanent variance was warranted. OSHA believes that
providing expedited notification to OSHA of injuries and illnesses is
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. Additionally, OSHA believes that
expedited notification of injuries and illnesses will ensure that JHT
identifies and implements appropriate corrective and preventative
actions. Accordingly, this condition of the permanent variance has not
been changed and JHT must submit incident reports for recordable
injuries or illnesses within twenty-four hours of the incident.
Regarding proposed Condition G, Paragraph (5), NOAA commented that
the requirement for JHT to notify OSHA on the need to revise dive
procedures to accommodate changes in diving operations that affect its
ability to comply with the conditions of the permanent variance within
fifteen (15) working days is unwarranted. The comment further notes
that JHT does not have a diving operation, as all on-duty dives
performed under the control of the NDP, and JHT relies completely upon
NOAA to train, equip, medically monitor, and supervise its divers.
After considering this comment, OSHA determined that no change is
warranted. OSHA is not making a change to this condition because the
permanent variance is granted on the basis of the proposed work
activity being determined ``as safe and healthful'' as coverage
provided by the standard, and without updates about any changes to the
procedures governing these work activities, OSHA will be unable to
determine if the permanent variance continues to provide equivalent
worker protection. Additionally, while JHT will be performing diving
operations under the NDP, notification of changes to procedures that
may impact the conditions of the permanent variance will allow OSHA to
ensure that JHT identifies and implements appropriate preventative and
corrective actions. Accordingly, this condition to the permanent
variance has not been changed and JHT must notify OTPCA and the Area
Office closest to the dive location within fifteen (15) working days of
any changes to its dive procedures that affect its ability to comply
with the conditions of the proposed permanent variance.
Regarding proposed Condition G, Paragraph (7), NOAA commented that
the condition requiring JHT to provide OTPCA and the OSHA Area and
Regional Offices closest to the preceding year's dive locations a
report summarizing dives completed and evaluating the effectiveness of
the variance conditions was unnecessary. NOAA again noted that OSHA did
not place a similar requirement on NOAA when it granted the NOAA
Alternate Diving Standards, and given that JHT divers will only dive
under the control of the NOAA Diving Program, the requirement is
onerous. NOAA also stated that the NDP produces an annual report which
outlines all diving activities each year, which provides dives by
location, type, depth and task, and requested that OSHA change the
condition to allow JHT to meet the requirement by submitting the NDP's
annual report. After considering this comment, OSHA has determined that
it will not revise this reporting condition or replace it with a
requirement for JHT to submit the NDP's annual report. OSHA believes
that JHT providing this annual summary outlining the dives completed
and its evaluation of the effectiveness of the variance conditions is
essential to OSHA's monitoring of the effectiveness of the permanent
variance.
The final comment from NOAA was a request to make the permanent
variance applicable to all employers who supply contract employees who
are part of the NOAA Diving Program. After considering this comment,
OSHA has determined that applicability of the permanent variance will
only be to JHT and its employees who engage in diving with NOAA under
the NDP. JHT alone applied for this permanent variance under 29 U.S.C.
655(d) and 29 CFR
1905.11. Should any other company that supplies contract employees to
NOAA to dive as part of the NOAA Diving Program desire a similar
permanent variance, the company must apply for a permanent variance.
Accordingly, OSHA has not updated the permanent variance in response to
this comment.
IV. Description of Conditions Specified for the Permanent Variance
This section describes the conditions that comprise the alternative
means of compliance with 29 CFR 1910.430(d)(3); 29 CFR 1910.430(d)(4);
29 CFR 1910.423(b)(2); 29 CFR 1910.423(c)(1); 29 CFR 1910.423(c)(3) and
29 CFR 1910.424(b)(2), that form the basis of the permanent variance
that OSHA is granting JHT in this notice.
Condition A: Scope
The permanent variance applies only to the commercial diving
operations that JHT conducts for NOAA, under the control of the NDP,
and within OSHA's jurisdiction. The variance applies when JHT's
employees dive as part of an NDP diving operation, and 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. As explained in
Section III, the permanent variance applies to all qualifying dives,
and is not limited to dives from NOAA-operated uninspected vessels.
Coverage is limited to the work situations specified under the ``Scope
and application'' section of Subpart T, Commercial Diving Operations
(1910.401(a)), and does not apply to commercial diving operations that
are already exempted under 1910.401(a)(2).\14\ When implementing the
conditions of the permanent variance, JHT must 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).
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\14\ 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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Condition B: Definitions
In Condition B, OSHA defines a number of abbreviations that are
used in the permanent variance. Defining these abbreviations is
intended to clarify and standardize their usage, thereby enhancing the
JHT's and its employees' understanding of the conditions specified by
the permanent variance.
Condition C: Requirements for Inflatable Flotation (or Buoyance
Compensation) Devices
In Condition C, OSHA requires that, when using a buoyancy
compensator device (BCD) for SCUBA diving, JHT must 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. When SCUBA diving, JHT must also ensure that
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 must 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 alternate conditions
described above (see sec. II.B.), OSHA has determined that these
conditions 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 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 a permanent variance, using the
conditions of the NOAA Alternate Diving Standards, in combination with
the additional conditions specified in this notice.
Condition D: Requirements for Decompression Chambers
Condition D requires 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 must
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 must make available within
four hours of the dive location a dual-lock and multiplace
decompression chamber capable of recompressing the diver at the surface
to a minimum of 165 FSW (6 ATA). JHT must also meet the medical-
treatment provisions of Appendix C to the CDO rule (i.e., Condition 8,
``Treating Diving-Related Medical Emergencies''), and is 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 must 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 has determined the specified conditions 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 there are no
differences in training requirements, medical clearance procedures,
equipment use and maintenance requirements, and required diving
procedures for NOAA-employed and JHT-employed divers under the NDP.
OSHA grants the requested permanent variance based on the conditions of
the NOAA Alternate Diving Standards in combination with the additional
conditions specified in this notice.
Condition E: Worker Qualification and Training
Condition E requires 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. As explained in section III of
this notice, Condition E also provides that JHT's qualification and
training program must also meet the requirements of the NOAA Diving
Program (NDP). The condition specifies that JHT must ensure that all
affected divers successfully complete all training required by the NOAA
Diving Program to become a NOAA Diver. The condition also specifies
that JHT must ensure that all affected divers complete all of the NDP's
diver training requirements to be authorized NOAA Diver, and that such
training must, at a minimum, include: (1) Instruction in the conditions
of the permanent 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. JHT must also
document and track all affected divers' training.
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 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.
Condition F: Recordkeeping
Condition F requires JHT 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
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 enable JHT and OSHA to determine
the effectiveness of the permanent variance in preventing DCS and other
dive-related injuries and illnesses.\15\
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\15\ See 29 CFR 1904, Recording and Reporting Occupational
Injuries and Illnesses (http://www.osha.gov/pls/oshaweb/owandisp.show_document?p_table=STANDARDS&p_id=9631); recordkeeping
forms and instructions (http://www.osha.gov/recordkeeping/RKform300pkg-fillable-enabled.pdf); and updates to OSHA's
recordkeeping rule, 79 FR 56130, September 18, 2014 (more
information available at: http://www.osha.gov/recordkeeping2014/index.html).
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Condition G: Notifications
The notification provisions in Condition G are intended to ensure
that JHT provides timely notification to OSHA of dive-related incidents
involving JHT divers and dive team members. Under this condition, JHT
is 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 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 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 permanent variance;
(7) by the fifteenth (15th) of January, at the beginning of each new
calendar year, provide OTPCA, and the Area Offices and their
corresponding 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; and (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 permanent variance to a
successor company; and (9) Ensure that OSHA would approve the transfer
of the permanent variance to a successor company.
OSHA acknowledges that the requirement for completing and
submitting the dive-related (recordable) incident investigation report
(OSHA 301 form) is more restrictive than OSHA's generally applicable
recordkeeping requirements, which require employers to complete an OSHA
301 form within seven (7) calendar days of the incident (29 CFR
1904.29(b)(3)). The abbreviated timeframe for investigating and
reporting incidents under this permanent variance applies only to dive-
related and recordable incidents. Providing expedited notification to
OSHA of such incidents is 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 to ensure
that JHT identifies and implements appropriate corrective and
preventive actions. Timely notification permits OSHA to take necessary
and appropriate actions to prevent further injuries and illnesses,
including determining whether to revise or revoke the conditions of the
permanent variance. Providing notification to affected employees will
ensure that employees are aware of the precautions that JHT implements
to prevent similar future incidents.
Additionally, this condition requires JHT to notify OSHA if it
ceases to do business, has a new main office address or location, or
transfers the operations covered by the permanent variance to a
successor company. Further, pursuant to this condition, OSHA must
approve the transfer of the permanent variance to a successor company.
These requirements will: (1) Provide assurance that the successor
company has knowledge of, and would comply with, the conditions
specified by the permanent variance; (2) allow OSHA to communicate
effectively with the applicant regarding the status of the permanent
variance; and (3) expedite the agency's administration and enforcement
of the permanent variance, thereby ensuring the continued safety of
affected divers.
V. Decision
As previously indicated in this notice, OSHA reviewed JHT's
application for a permanent variance and interim order, and the
supporting technical documentation, including the alternate standards
that OSHA granted to NOAA on September 5, 2014. After completing
this review, OSHA determined that JHT's application proposes an
effective alternative means of protection that will protect its
employees engaged in NDP diving operations as effectively as the
requirements articulated in 29 CFR 1910.430(d)(3); 29 CFR
1910.430(d)(4); 29 CFR 1910.423(b)(2); 29 CFR 1910.423(c)(1); 29 CFR
1910.423(c)(3) and 29 CFR 1910.424(b)(2). Based on this determination,
on August 2, 2017, OSHA published a preliminary Federal Register notice
(82 FR 35995) announcing JHT's application for a permanent variance,
granting JHT an interim order, and issuing a request for comments.
Since OSHA granted the interim order, JHT has been required to comply
fully with the conditions of the interim order as an alternative to
complying with the requirements of the above-listed OSHA standards.
After reviewing and evaluating the alternative means of protection
that JHT proposed to provide its employees, and the one comment that
OSHA received during the public comment period, OSHA has determined
that the alternative conditions detailed in this permanent variance
will provide JHT's employees working conditions that are as safe and
healthful as those which would prevail if JHT complied with 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). Based on the record discussed
above, and in accordance with section 6(d) of the OSH Act (29 U.S.C.
655(d)), OSHA grants JHT's application for a permanent variance. This
order prescribes the conditions that JHT must maintain, adopt, and
utilize to the extent they differ from the standards in question.
Under the terms of this permanent variance, JHT must: (1) Comply
with the conditions listed below under Section VI of this notice
(``Order''); (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 conditions using the same means
it used to inform these employees of its application for a permanent
variance. This order will remain in effect unless OSHA modifies or
revokes this final order in accordance with 29 CFR 1905.13.
VI. Order
As of the effective date of this final order, OSHA is revoking the
Interim Order granted to the employer on August 2, 2017 (82 FR 35995).
OSHA issues this final order authorizing Jardon and Howard
Technologies, Incorporated (``JHT'') to comply with the following
conditions instead of complying with the requirements of paragraphs 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) of OSHA's commercial diving
standard. The conditions apply to all of JHT's commercial diving
operations that it conducts with NOAA under the NOAA Diving Program
(NDP). These conditions are:
A. Scope
1. The permanent variance applies only to JHT's commercial diving
operations conducted for NOAA under the control of the NOAA Diving
Program.
2. The permanent variance only applies 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 only apply when the dive
location is 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 permanent variance does 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;
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 comply fully with all other applicable
provisions of Subpart T of 29 CFR part 1910 when conducting commercial
diving operations.
B. Definitions
The following definitions apply to this permanent variance:
ATA--Atmosphere(s) 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 must 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 must 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 must ensure that divers are never
permitted to dive alone unless they are line-tended and provided with
topside support (as a minimum, topside support includes a designated
person-in-charge and a standby diver).
D. Requirements for Decompression Chambers
1. For any dive that is outside the no-decompression limits or
deeper than 130 FSW or using mixed gas with a percentage of oxygen less
than air as a breathing mixture, JHT must 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 nitrox breathing-gas mixture within
the no-decompression limits that is deeper than 100 FSW but no deeper
than 130 FSW, JHT must make available a decompression chamber that is:
Dual-lock, multiplace, and located within four hours of the dive
location. JHT will 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.
3. JHT must meet the medical-treatment provisions of Appendix C to
the CDO rule (i.e., Condition 8,
``Treating Diving-Related Medical Emergencies'').
4. JHT is 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).
E. Worker Qualification and Training
JHT is required to:
1. 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), and all of the requirements of the NDP;
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 all training required by the NDP to
become a NOAA Diver;
3. Ensure that all divers complete all continuing training required
by NDP to maintain status as an authorized NOAA Diver. At a minimum,
the diver training program must include the following: (a) Instruction
in the conditions of the permanent 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 is 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 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 permanent variance in preventing DCS and other
dive-related injuries and illnesses.
G. Notifications
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 OTCPA 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 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 JHT need to revise its dive
procedures to accommodate changes in its diving operations that affect
its ability to comply with the conditions of the 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
permanent variance;
7. By the fifteenth (15th) of January, at the beginning of each new
calendar year, provide OTPCA, and the Area Offices and their
corresponding Regional Office 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 permanent
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 main office
address or location, or transfers the operations covered by the
permanent variance to a successor company; and
9. Ensure that OSHA would approve the transfer of the permanent
variance to a successor company.
OSHA will publish a copy of this notice in the Federal Register.
Authority and Signature
Loren Sweatt, Acting 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 Section 29 U.S.C. 655(6)(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 May 1, 2019.
Loren Sweatt,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2019-09988 Filed 5-14-19; 8:45 am]
BILLING CODE 4510-26-P
