[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: http://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 http://www.regulations.gov.
Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov or the OSHA Docket Office. All
documents in the docket (including this Federal Register notice) are
listed in the http://www.regulations.gov index; however, some
information (e.g., copyrighted material) is not publicly available to
read or download through the 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: 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) 693-2300; email: robinson.kevin@dol.gov.
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.
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:
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
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
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
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
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 (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9631); recordkeeping
forms and instructions (http://www.osha.gov/recordkeeping/RKform300pkg-fillable-enabled.pdf); and updates to OSHA's
recordkeeping rule, 79 FR 56130, September 18, 2014 (more
information available at: (http://www.osha.gov/recordkeeping2014/index.html).
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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
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
