Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, the Occupational Safety and Health Administration (“OSHA” or “the Agency”) announces the application of Jardon and Howard Technologies, Incorporated (“JHT” or “the applicant”) for a permanent variance from several provisions in OSHA's standards that regulate commercial diving operations. Additionally, the applicant requests an interim order based on the conditions specified in the variance application. JHT's variance request is based on the conditions that were specified in the alternate standards that OSHA granted to the National Oceanic and Atmospheric (NOAA) on September 5, 2014. OSHA announces its preliminary finding to grant the permanent variance, and also announces that it is granting the applicant's request for an interim order. OSHA invites the public to submit comments on whether to grant the applicant a permanent variance based on the conditions specified in the notice.
Submit comments, information, documents in response to this notice, and request for a hearing on or before September 1, 2017. The interim order specified by this notice becomes effective on August 2, 2017, and shall remain in effect until it is modified or revoked, or until OSHA publishes a decision on the permanent variance application, whichever occurs first.
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Information regarding this notice is available from the following sources:
On September 25, 2015, Jardon and Howard Technologies, Incorporated, (“JHT” or “the applicant”), submitted an application for a permanent, multi-state variance under Section 6(d) of the Occupational Safety and Health Act of 1970 (“OSH Act”; 29 U.S.C. 655) and 29 CFR 1905.11 (“Variances and other relief under section 6(d)”), from provisions of OSHA's commercial diving operations (CDO) standard that regulate the use of inflatable flotation devices and decompression chambers (Exhibit OSHA–2015–0024–0001, Request for Variance). JHT's application also requested an interim order pending OSHA's decision on the variance application. JHT's corporate offices are located at 2710 Discovery Drive, Suite 600, Orlando, FL 32826, and JHT also identified two field office locations as places of employment involved in its variance application: (1) NOAA/NOS Center for Coastal Fisheries and Habitat Research, 101 Pivers Island Road, Beaufort, North Carolina, 28516; and (2) NOAA CCFHBR Laboratory, 219 Fort Johnson Road, Charleston, South Carolina, 29412. After receiving JHT's variance application, OSHA sent two rounds of follow-up questions to JHT, on October 13, 2015 and June 27, 2016, to which JHT responded on November 16, 2015 and July 27, 2016, respectively (
Specifically, the applicant seeks a permanent variance and interim order from the provisions of OSHA's CDO standard that require:
(1) A buoyancy compensator to have an inflation source separate from the breathing gas supply when used for SCUBA diving (29 CFR 1910.430(d)(3));
(2) use of an inflatable flotation device capable of maintaining the diver at the surface in a face-up position, having a manually activated inflation source independent of the breathing supply, an oral inflation device, and an exhaust valve (29 CFR 1910.430(d)(4));
(3) the employer to instruct the diver to remain awake and in the vicinity of the decompression chamber which is at the dive location for at least one hour after the dive (including decompression or treatment as appropriate) for any dive outside the no-decompression limits, deeper than 100 feet of sea water (fsw), or using mixed gas as a breathing mixture (29 CFR 1910.423(b)(2));
(4) the employer to make available at the dive location a decompression chamber capable of recompressing the diver at the surface to a minimum of 165 fsw (6 ATA) (29 CFR 1910.423(c)(1));
(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
JHT's divers who conduct diving operations for NOAA typically dive from NOAA-operated “uninspected vessels” in U.S. navigable waters; such diving operations fall under OSHA's jurisdiction.
The applicant contends that the proposed variance conditions outlined in its application provide its workers with a place of employment that is at least as safe and healthful as they would obtain under the existing provisions of OSHA's CDO standard. The applicant certifies that it provided affected
In June 2011, NOAA submitted an application to OSHA proposing a total of 12 alternate standards to 29 CFR 1910, Subpart T, and included with its application extensive introductory, background, and explanatory information in support of the application (
NOAA explained in its application materials that it conducts dives under two major programs: The NOAA Diving Program (NDP) and the National Undersea Research Program (NURP). The NDP primarily supports intramural (within the agency) research programs conducted by personnel within NOAA's major line offices, while NURP primarily supports extramural (outside the agency) research programs conducted by scientists from various academic and marine institutions. The NDP is responsible for overseeing all NOAA and contractor (including JHT) diving personnel, equipment, and activities, and ensuring that dives performed by NOAA and its contractor divers are completed safely and efficiently. The NDP, the NOAA Diving Control and Safety Board, and the NOAA Diving Medical Review Board all work together to ensure that qualified personnel and certified systems are available to safely meet NOAA's undersea research objectives.
NOAA's application also explained that it provides a robust training program to NDP divers, including contractor divers. NOAA stated that the primary training program used to prepare NOAA and contractor divers to perform work is NOAA's three-week, 140-hour “Working Diver” course, which trains divers to perform a wide range of skills utilizing a variety of power and hand tools and specialized equipment. All NOAA divers and contractors are also required to: (1) Have annual refresher training in oxygen administration (academic and practical components); (2) stay current in CPR/AED and First Aid training; (3) maintain proficiency in diving by making at least three dives per quarter; (4) complete an annual swim test; (5) have their life support gear serviced annually by a certified technician; (6) complete an annual skills test to demonstrate their ability to safely operate underwater; and (7) complete annual rescue drills to demonstrate their ability to surface, extricate, treat and evacuate the victim of a diving accident.
NOAA's application further stated that it has developed many advances in diving equipment and procedures that are now widely recognized and accepted as industry best practices. NOAA publishes many of these advances in the “NOAA Diving Manual: Diving for Science and Technology,” which serves as a reference manual for all NDP divers. NOAA also maintains two additional manuals (the “NOAA Scientific Diving Standards and Safety Manual” and the “NOAA Working Diving Standards and Safety Manual”) that provide in-depth operational guidance for all dives, and include the standards, policies, regulations, requirements, and responsibilities for all aspects of NOAA's diving operations.
Additionally, NOAA stated that OSHA's CDO standard, which was first published in 1977, does not account for many of the advancements that have been made in diving technology and safety. For that reason, NOAA sought alternate standards that would permit the NDP to conduct diving operations using equipment and procedures that reflected modern diving advancements. NOAA also stated that OSHA's regulations are not always consistent with other related federal diving regulations, such as 46 CFR 197, Subpart B, which provides safety and health standards for commercial diving operations conducted from vessels and facilities under the jurisdiction of the U.S. Coast Guard.
As a NOAA contractor, JHT asserts that its divers are required to strictly follow the requirements of the NDP, which include following the conditions of the NOAA Alternate Diving Standards. But, even though NOAA-employed and JHT-employed divers work side-by-side during NDP operations, contractor divers (such as those employed by JHT) are not authorized to dive under the NOAA Alternate Diving Standards. JHT states that its divers undergo exactly the same training as NOAA employees who are also part of the NDP, and that there are no differences between NOAA and JHT divers regarding medical clearance procedures and standards, training materials, equipment used, equipment maintenance, and diving procedures used (
OSHA's standards regulating the buoyancy control of inflatable flotation devices include requirements that: (1) When used for SCUBA diving, a buoyancy compensator shall have an inflation source separate from the breathing gas supply (29 CFR 1910.430(d)(3)); and (2) an inflatable flotation device capable of maintaining the diver at the surface in a face-up position, having a manually activated inflation source independent of the breathing supply, an oral inflation device, and an exhaust valve shall be used for SCUBA diving (29 CFR 1910.430(d)(4)).
Following the terms of the NOAA Alternate Diving Standards, JHT's variance application seeks permission to use modern buoyancy compensator devices (BCDs) that deviate from the requirements in 1910.430(d)(3) and (d)(4) that such devices have an inflation source that is “separate from” or “independent of” the diver's breathing gas. NOAA's application for the alternate standards explained that the overwhelming majority of commercial-off-the-shelf (COTS) BCDs are designed to use the diver's breathing gas for inflation, making it difficult to comply with OSHA's requirement for a BCD to have an independent inflation source. According to NOAA, older systems that utilize separate, non-breathing gas inflation sources—particularly, carbon-dioxide cartridges—pose potential safety problems for the diver, including potential cartridge failure, and accidental activation, leading to an unexpected and potentially dangerous over-inflation of the BCD, which could cause a rapid and uncontrolled ascent of the diver to the surface. NOAA's application stated that industry recognition of these inherent safety problems prompted manufacturers to discontinue production of systems relying on such inflation sources. NOAA also explained that using a diver's emergency air supply to inflate the BCD is potentially problematic, as connecting the BCD to an auxiliary cylinder would impede a diver who is “ditching” components of a SCUBA unit during an emergency, and would also create additional points of potential equipment failure and entanglement. JHT echoed NOAA's concerns regarding the use of BCDs that are inflated by a source other than the diver's breathing gas (
The training that NOAA provides to its divers and contractors, including JHT, mitigates the risk of using breathing gas to inflate BCDs. NDP divers are trained to continually monitor their gas supplies and return to the surface with no less than 500 psi in their SCUBA cylinders, and NOAA stated that this practice, which has been used for more than 30 years, has proven to be an effective method for managing a diver's breathing gas. NDP divers are also trained in techniques to manually inflate their BCDs, both underwater and at the surface, to control their buoyancy. NOAA also explained that the amount of gas needed to inflate a BCD is minimal compared to the amount of breathing gas that is available in a standard SCUBA cylinder, and that most BCDs can be fully inflated with a volume of gas equivalent to that consumed in three or fewer breaths, and therefore asserted that taking such small amounts of gas from the SCUBA cylinder would have minimal effect on the duration of a dive.
Under the alternate conditions that OSHA granted NOAA in the NOAA Alternate Diving Standards, which JHT adopts as the proposed conditions for the variance, NDP divers may use BCDs that are inflated by the breathing gas supply so long as all divers carry an independent reserve cylinder of breathing gas with a separate regulator, which allows divers to orally inflate their BCDs using gas from their reserve gas supplies even if their primary breathing gas supply is depleted. When granting the NOAA Alternate Diving Standards, OSHA explained that this requirement is consistent with 29 CFR 1910.424(c)(4), which requires SCUBA divers to carry a reserve breathing-gas supply. As OSHA stated in the preamble to the CDO standard final rule (42 FR 37650, 37633), “[a reserve] supply is essential to the safety of the SCUBA diver,” and employers must take precautions to “assure that the air reserve will not be depleted inadvertently during the dive.” OSHA ultimately concluded that NOAA's proposed alternate standard provides equivalent safety protection to divers as 1910.430(d)(3) so long as the diver carries a reserve breathing gas supply, does not connect the reserve breathing gas to the BCD's inflation source, and uses the BCD in accordance with the manufacturer's instructions.
Further, OSHA noted in the NOAA Alternate Diving Standards that 1910.430(d)(4)'s requirement that SCUBA divers use a BCD with a manually activated inflation source (
Additionally, JHT's proposed variance conditions would follow the NOAA Alternate Diving Standards by replacing 1910.430(d)(4)'s requirement that BCDs used for SCUBA dives be capable of maintaining the diver at the surface in a “face-up position” with a requirement that the BCD be capable of maintaining the diver at the surface in a “positively buoyant state.” NOAA's application materials explained that the majority of COTS BCDs available today are not designed to maintain unconscious divers in a face-up position on the surface, as systems capable of meeting that requirement have inherent safety-related problems that lead most manufacturers to abandon them in favor of more modern systems.
Specifically, NOAA asserted that the only BCD able to maintain a diver in a face-up position at the surface was the “horse-collar” style BCD, which has been widely replaced by jacket-style BCDs (also known as stabilizing, or stab, jackets) or back-mounted systems, both of which have greater operational and safety features compared to the older style. NOAA explained that newer BCDs have more lift, fewer straps (reducing entanglement hazards, particularly when ditching the BCD in an emergency, or when used in conjunction with a weight harness), require fewer steps to don, will not choke divers when fully inflated on the surface, and most significantly, do not impede operation of chest-mounted drysuit inflation valves. Additionally, NOAA explained that the inability of stab-jacket or back-mounted BCDs to maintain a diver in a face-up position is off-set by NOAA's requirement that divers always dive in buddy pairs (or be line-tended), and receive training in the proper technique for inflating their buddy's BCD while keeping their buddy's head face-up during rescues. Accordingly, NOAA stated that the chance of a stricken diver drowning while wearing a BCD that does not provide for face-up flotation is very remote. JHT added that horse-collar BCDs were not originally designed for emergency buoyancy ascents, and many are thus not equipped with the over-pressure relief valves that are essential for safe emergency ascents.
When granting the NOAA Alternate Diving Standards, OSHA noted that the preamble to the CDO final rule explained that “[t]he provision for an inflatable flotation device for SCUBA diving [was] given design specifications because an improperly designed device can be a greater safety hazard than aid” (42 FR 37650, 37666). BCDs were not
OSHA determined that those conditions would provide NOAA's divers with protection equivalent to the CDO standard, and JHT's proposed variance includes the very same conditions under which OSHA approved the NOAA's Alternate Diving Standards for NOAA-employed NDP divers. As stated above, there are no differences in the training requirements, medical clearance procedures and standards, equipment use and maintenance requirements, or diving procedures that apply to NOAA-employed and JHT-employed divers who conduct diving operations for the NDP. Additionally, OSHA believes that diver safety is best promoted where diving safety rules are clear and consistently applicable to all divers at a worksite. Accordingly, OSHA accepts JHT's proposal to adopt the conditions from the NOAA Alternate Diving Standards as the basis for its requested variance from the inflatable flotation device requirements in 1910.430(d)(3) and (d)(4), and has preliminarily decided to grant the interim order and permanent variance to JHT on those same conditions.
OSHA's standards regulating the availability and use of decompression chambers require that: (1) For any dive outside the no-decompression limits, deeper than 100 fsw, or using mixed gas as a breathing mixture, the employer shall instruct the diver to remain awake and in the vicinity of the decompression chamber which is at the dive location for at least one hour after the dive (including decompression or treatment as appropriate) (1910.423(b)(2)); (2) for mixed gas diving shallower than 300 fsw, or diving outside the no-decompression limits shallower than 300 fsw, a decompression chamber capable of recompressing the diver at the surface to a minimum of 165 fsw (6 ATA) shall be available at the dive location, and must be dual-lock, multiplace, and accessible within 5 minutes of the dive location (1910.423(c)(1) and (c)(3)(i)–(iii)); and (3) SCUBA dives shall not be conducted at depths deeper than 100 fsw or outside the no-decompression limits unless a decompression chamber is ready for use (1910.424(b)(2)).
Adopting the conditions of the NOAA Alternate Diving Standards, JHT's application proposes conditions that would allow it deviate from these decompression chamber availability and capability requirements in OSHA's CDO standard. As OSHA explained when it granted the NOAA Alternate Diving Standards, the purpose of having a decompression chamber available and ready for use at a dive site is to treat decompression sickness (DCS) and arterial gas embolism (AGE). DCS may occur from breathing air or mixed gases at diving depths and durations that require decompression, while AGE may result from over-pressurizing the lungs, usually following a rapid ascent to the surface during a dive without proper exhalation. In the event that DCS or AGE develops, a decompression chamber, oxygen or treatment gas mixtures, and treatment tables and instructions must be readily available to treat these conditions effectively. Decompression chambers provide the most effective therapy—recompression—for DCS and AGE.
First, JHT's proposed variance would adopt the conditions of the NOAA Alternate Diving Standards that permit NOAA to deviate from the requirement of 1910.423(b)(2) that the employer instruct all divers who dive deeper than 100 fsw remain awake and in the vicinity of a decompression chamber for one hour after the dive, and the requirement of 1910.424(b)(2) that SCUBA diving not be conducted at depths deeper than 100 fsw or outside the no-decompression limits unless a decompression chamber is “ready for use.” In other words, Sections 1910.423(b)(2) and 1910.424(b)(2) require that any diver who conducts a dive deeper than 100 fsw or outside the no-decompression limits to remain alert and near a decompression chamber for at least one hour to ensure immediate treatment should DCS or AGE develop. Addressing the 100 fsw limit in the preamble to the CDO rule, OSHA stated:
By adding a depth limit to the decompression chamber requirement, the standard sets a specified depth at which all diving operations will require a chamber, eliminating the safety hazard inherent in operations which are planned below that depth . . . . OSHA believes that this provision will result in recompression capability being available for the great majority of diving situations where the probability of its being needed is greatest.
In its application, NOAA sought permission to conduct SCUBA dives within the no-decompression limit up to 130 fsw (rather than 100 fsw) without triggering the decompression chamber requirements in 1910.423(b)(2) and 1910.424(b)(2). In support, NOAA cited statistics published by the U.S. Navy (USN) indicating that no-decompression dives to 130 fsw actually pose a lower risk of DCS to divers than no-decompression dives to 100 fsw, and also cited the extremely low DCS incident rate that NOAA has observed in no-decompression SCUBA dives that it has conducted between 101 and 130 fsw since 2000.
When granting NOAA alternate standards to 1910.423(b)(2) and 1910.424(b)(2), OSHA explained that the CDO standard sets the 100 fsw limit based on the increased risk of developing DCS and AGE on dives deeper than 100 fsw. However, OSHA explained that the Agency amended the CDO standard in 2004 to permit employers of recreational diving instructors and diving guides to comply with an alternative set of decompression chamber requirements (
OSHA explained in the NOAA Alternate Diving Standards that it created this exemption for recreational diving instructors and diving guides because the Agency determined that the elevated levels of oxygen in nitrox breathing-gas mixtures reduced the incidence of DCS compared to breathing air at the same depths, and therefore
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 (
(a) For diving conducted while using nitrox breathing-gas mixtures, the employer must ensure that each diver remains within the no-decompression limits specified for single and repetitive air diving and published in the 2001 NOAA Diving Manual or the report entitled “Development and Validation of No-Stop Decompression Procedures for Recreational Diving: The DSAT Recreational Dive Planner,” published in 1994 by Hamilton Research Ltd. (known commonly as the “1994 DSAT No-Decompression Tables”).
(b) An employer may permit a diver to use a dive-decompression computer designed to regulate decompression when the dive-decompression computer uses the no-decompression limits specified in paragraph 5(a) of this appendix, and provides output that reliably represents those limits.
Additionally, JHT's application would adopt the conditions of the NOAA Alternate Diving Standards that permit NOAA to deviate from the decompression chamber availability and capability requirements in 1910.423(c)(1) (that employers have a 6 ATA chamber at the dive location) and 1910.423(c)(3) (that the chamber be dual-lock, multiplace, and located within five minutes of the dive location). In its original application to the Agency, NOAA proposed alternate standards that would have permitted it to use a 2.8 ATA, mono-lock chamber available within two (2) hours of the dive location for all working dives conducted deeper than 130 fsw or outside the no-decompression limits. NOAA explained that complying with 1910.423(c)(1) and (c)(3) requires employers to use a large enough boat to carry and transport a large and powerful decompression chamber to the dive site, but most NDP dives are conducted from small boats, which are launched from larger ships or land-based facilities. Accordingly, NOAA sought permission to use light-weight, portable decompression systems, which it referred to as “hyperlite chambers,” to transport injured divers from dive sites to larger chambers located elsewhere. Additionally, NOAA sought to make the hyperlite chamber available within two hours, rather than within five minutes, of the dive location for dives conducted deeper than 130 fsw or outside the no-decompression limits.
OSHA did not grant NOAA the alternate standards based on these proposed conditions, but rather granted revised alternate standards in order to ensure that NOAA divers would receive equivalent protection to the CDO standard. Regarding the chamber
Regarding the proposed chamber-
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 (
Based on its technical review of the JHT's application, the NOAA Alternate Diving Standards, and related
As previously stated in this notice, JHT seeks a permanent variance from several provisions of OSHA's CDO standard in order to carry out NDP diving projects conducted from NOAA vessels in accordance with the conditions of the NOAA Alternate Diving Standards. JHT's land-based operations, which are responsible for managing and administering these diving projects, are located at: (1) NOAA CCEHBR Laboratory, 219 Fort Johnson Road, Charleston, South Carolina, 29412; and (2) NOAA/NOS Center for Coastal Fisheries and Habitat Research, 101 Pivers Island Road, Beaufort, North Carolina, 28516. JHT conducts diving operations with NOAA with essentially no geographical limitations, and have conducted diving operations in various navigable waters within OSHA's geographical authority, including the navigable waters of the Virginia, North Carolina, South Carolina, Georgia and Florida, the Florida Keys, the Gulf of Mexico, the Caribbean (
Twenty-eight state safety and health plans have been approved by OSHA under section 18 of the OSH Act.
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,
JHT certified in its application that it has not filed an application for a permanent variance on the same material facts with a State Plan program. JHT's variance application fits the parameters of 29 CFR 1902.8, and Federal OSHA's action on this application will be deemed prospectively an authoritative interpretation of JHT's compliance obligations regarding the applicable state standards in the places of employment covered by the application. As part of the permanent variance process, OSHA's Directorate of Cooperative and State Programs will notify all State Plans that are potentially affected by JHT's variance application, and the states will have the opportunity to comment.
This section describes the alternative means of compliance with the provisions of 29 CFR 1910.430(d)(3), 1910.430(d)(4), 1910.423(b)(2), 1910.423(c)(1), 1910.423(c)(3), and 1910.424(b)(2), and provides additional detail regarding the proposed conditions that form the basis of JHT's application for an interim order and permanent variance. As indicated earlier in this notice, JHT is seeks the interim order and permanent variance based on proposed conditions derived from the conditions of the alternate standards that OSHA granted to NOAA on September 5, 2014 (Exhibit OSHA–2015–0024–0003, OSHA's Comments and Decisions to NOAA's Request for an
The interim order/proposed permanent variance will/would apply only to JHT commercial diving operations that are conducted for NOAA as part of the NDP from a NOAA vessel. Additionally, coverage is/would be limited to the work situations specified under the “Scope and application” section of Subpart T, Commercial Diving Operations (1910.401(a)), and will/would not apply to commercial diving operations that are already exempted under 1910.401(a)(2).
The interim order only applies to JHT's employees when they conduct diving operations under the NDP, as would the permanent variance should OSHA decide to grant it.
In proposed condition B, OSHA defines a number of abbreviations used in the interim order/proposed permanent variance. OSHA believes that defining these abbreviations serves to clarify and standardize their usage, thereby enhancing the applicant's and its employees' understanding of the conditions specified by the interim order/proposed permanent variance.
This proposed condition will/would require that, when using a buoyancy compensator device (BCD) for SCUBA diving, JHT will/would ensure that: The device is used in accordance with the manufacturer's instructions; is capable of being inflated orally and via the diver's primary breathing gas supply; and, all divers carry an independent reserve cylinder of breathing gas with a separate regulator that could be used for BCD inflation in an emergency. It will/would also require that, when SCUBA diving, JHT will/would ensure divers use an inflatable flotation device that is: Capable of maintaining the diver at the surface in a positively buoyant state; and, has a manually activated inflation source, an oral inflation device, and an exhaust valve. Also, when SCUBA diving, JHT will/would ensure divers are never permitted to dive alone unless they are line-tended and provided with topside support.
Based upon the technical review of the proposed alternate conditions described above (
This proposed condition will/would require that, for any dive that is outside the no-decompression limits or deeper than 130 fsw or using mixed gas with a percentage of oxygen less than air as a breathing mixture, JHT will/would instruct the diver to remain awake and in the vicinity of the decompression chamber which is at the dive location for at least one hour after the dive (including decompression or treatment as appropriate). Additionally, for any dive using air or a nitrox breathing-gas mixture within the no-decompression limits that is deeper than 100 fsw but no deeper than 130 fsw, JHT will/would make available within four hours of the dive location a dual-lock and multi-place decompression chamber capable of recompressing the diver at the surface to a minimum of 165 fsw (6 ATA). JHT will/would also be required to meet the medical-treatment provisions of Appendix C to the CDO rule (
Based upon the technical review of the proposed alternate conditions regarding its use of decompression chambers (
OSHA added this proposed condition, which will/would require JHT to develop and implement an effective qualification and training program for its affected divers that, at a minimum, meets the requirements set forth in 29 CFR 1910.410 qualifications of a dive team. The proposed condition specifies that as members of the NDP, JHT's affected divers must/would be required to successfully complete the three-week, 140-hour “Working Diver” course that trains NOAA and contractor divers to perform a wide range of skills utilizing a variety of power and hand tools and specialized equipment. The proposed condition also specifies that JHT's diver must/would be required to complete NDP's diver training requirements, which include: (1) Instruction in the conditions of the proposed variance; (2) annual refresher training in oxygen administration (academic and practical components); (3) instruction in maintaining current CPR/AED and First Aid certification; (4) maintaining proficiency in diving by making at least three (3) dives per quarter; (5) completing and passing an annual swim test; (6) completing and passing an annual skills test to demonstrate the diver's ability to safely operate underwater; (7) successfully completing one or more annual rescue drills to demonstrate the diver's ability to surface, extricate, treat and evacuate the victim of a diving accident; and (8) instruction in properly verifying that the diver's life support gear was serviced annually by a certified technician.
OSHA believes that having well-trained and qualified divers performing the required dive tasks ensures that they recognize, and respond appropriately to underwater safety and health hazards. These qualification and training requirements will/would enable affected JHT divers to cope effectively with emergencies, as well as the discomfort and physiological effects of hyperbaric exposure, thereby preventing injury, illness, and fatalities.
OSHA also includes proposed condition F, which will/would require the applicant to maintain records of specific factors associated with each dive. The information gathered and recorded under this provision, in concert with the information provided under proposed condition G (using OSHA 301 Incident Report form to investigate and record dive-related recordable injuries as defined by 29 CFR 1904.4, 1904.7, 1904.8 through 1904.12), will/would enable the applicant and OSHA to determine the effectiveness of the interim order and proposed permanent variance in preventing DCS and other dive-related injuries and illnesses.
OSHA added this proposed condition to JHT's application in order to ensure that the applicant provides timely notification regarding the continued use and effectiveness of the proposed conditions in maintaining the safety and health of affected divers and preventing dive-related incidents.
Under this proposed condition, the applicant will/would be required to: (1) Notify the Office of Technical Programs and Coordination Activities (OTPCA) and the Area Office closest to the dive location of any recordable injuries, illnesses, in-patient hospitalizations, amputations, loss of an eye, or fatality that occur as a result of diving operations within eight (8) hours of the incident; (2) provide OTPCA and the Area Office closest to the dive location within twenty-four (24) hours of the incident with a copy of the incident investigation report (using OSHA 301 form); (3) include on the OSHA 301 form information on the diving conditions associated with the recordable injury or illness, the root-cause determination, and preventive and corrective actions identified and implemented; (4) provide its certification that it informed affected divers of the incident and the results of the incident investigation; (5) notify OTPCA and the Area Office closest to the dive location within fifteen (15) working days should the applicant need to revise its dive procedures to accommodate changes in its diving operations that affect its ability to comply with the conditions of the proposed permanent variance; and (6) by the fifteenth (15th) of January, at the beginning of each new calendar year, provide OTPCA, and the Area and Regional Offices closest to the preceding year's dive locations, with a report summarizing the dives completed during the year just ended and evaluating the effectiveness of the variance conditions in providing a safe and healthful work environment and in preventing dive-related incidents.
It should be noted that the requirement of completing and submitting the dive-related (recordable) incident investigation report (OSHA 301 form) will/would be more restrictive than the current recordkeeping requirement of completing the OSHA 301 form within seven (7) calendar days of the incident (29 CFR 1904.29(b)(3)). This modified and more stringent incident investigation and reporting requirement will/would be restricted to dive-related (recordable) incidents only. Providing notification will/would be essential because time is a critical element in OSHA's ability to determine the continued effectiveness of the variance conditions in preventing dive-related incidents, and the applicant's identification and implementation of appropriate corrective and preventive actions.
Further, these notification requirements will/would enable the applicant, its employees, and OSHA to determine the effectiveness of the proposed permanent variance in providing the requisite level of safety to the applicant's divers, and based on this determination, whether to revise or revoke the conditions of the proposed permanent variance. Timely notification will/would permit OSHA to take whatever action may be necessary and appropriate to prevent further injuries and illnesses. Providing notification to affected employees will/would inform them of the precautions taken by the applicant to prevent similar incidents in the future.
Additionally, this proposed condition also will/would require the applicant to notify OSHA if it ceases to do business, has a new address or location for its main office, or transfers the operations covered by the proposed permanent variance to a successor company. Further, the condition will/would specify that OSHA must approve the transfer of the interim order or proposed permanent variance to a successor company. These requirements will/would: (1) Provide assurance that the successor company has knowledge of, and would comply with, the conditions specified by the interim order or proposed permanent variance; (2) allow OSHA to communicate effectively with the applicant regarding the status of the interim order or proposed permanent variance; and (3) expedite the Agency's administration and enforcement of the
In Addition to a permanent variance, JHT requested an interim order, which would remain in effect until the Agency modifies or revokes the interim order, or until the Agency makes a decision on its application for a permanent variance, whichever occurs first. During this interim period, the applicant is required to comply fully with the conditions of the interim order as an alternative to complying with the inflatable flotation device requirements of 29 CFR 1910.430(d)(3) and (4), and the decompression chamber requirements of 29 CFR 1910.423(b)(2), (c)(1), and (c)(3), and 1910.424(b)(2).
As described earlier in this notice, JHT proposes to adopt the conditions of the NOAA Alternate Diving Standards, which were granted to NOAA on September 5, 2014, as the conditions of the interim order and permanent variance. In addition to adopting the NOAA Alternate Diving Standards' conditions for deviating from the applicable inflatable flotation device and decompression chamber provisions of Subpart T, OSHA added several conditions, which the Agency believes are necessary to ensure the safety of JHT's divers who conduct commercial diving operations for NOAA under the NDP.
After comprehensively reviewing the record discussed above, the Agency preliminarily finds that when the employer complies with the conditions of the proposed variance, the working conditions of the applicant's workers would be at least as safe and healthful as if the employer complied with the working conditions specified by 29 CFR 1910.430(d)(3), 1910.430(d)(4), 1910.423(b)(2), 1910.423(c)(1), 1910.423(c)(3), and 1910.424(b)(2). Accordingly, OSHA is issuing an interim order to the applicant pursuant to the provisions of 29 CFR 1910.11(c). In lieu of complying with the provisions listed of Subpart T specified above, the applicant will: (1) Comply with the conditions listed below in Section V (“Specific Conditions of the Interim Order and the Application for a Permanent Variance”) of this notice for as long as the interim order remains in effect; (2) comply fully with all other applicable provisions of 29 CFR part 1910; and (3) provide a copy of this
After comprehensively reviewing the evidence, OSHA has preliminarily determined that the proposed conditions will provide a place of employment as safe and healthful as that provided by 29 CFR 1910.430(d)(3), 1910.430(d)(4), 1910.423(b)(2), 1910.423(c)(1), 1910.423(c)(3), and 1910.424(b)(2). The following conditions apply to the interim order that OSHA is granting to JHT. In addition, these conditions specify the alternative means of compliance that OSHA proposes for JHT's requested permanent variance from the above-listed provisions of Subpart T of 29 CFR part 1910. The conditions will/would apply to all of JHT's commercial diving operations conducted from NOAA vessels under the NOAA Diving Program (NDP). These conditions include:
1. This interim order/permanent variance applies/would apply only to JHT's commercial diving operations conducted for NOAA under the NDP from a NOAA vessel.
2. The interim order/permanent variance only applies/would apply to JHT diving operations that are covered under Subpart T of 29 CFR part 1910 (
3. The interim order/permanent variance will/would not apply to commercial diving operations exempted by 29 CFR 1910.401(a)(2), including diving operations performed solely for instructional purposes, using open-circuit, compressed-air SCUBA and conducted within the no-decompression limits; diving performed solely for search, rescue, or related public safety purposes by or under the control of a governmental agency; or; diving for research, development, or related purposes involving human subjects, as governed by 45 CFR part 46 or equivalent rules or regulations established by another federal agency; and scientific diving. To qualify for the scientific diving exemption, all of the requirements in 29 CFR 1910.401(a)(2)(iv) and Appendix B to 29 CFR part 1910, subpart T, must be met.
4. Except for the requirements specified by 29 CFR 1910.430(d)(3), 1910.430(d)(4), 1910.423(b)(2), 1910.423(c)(1), 1910.423(c)(3), and 1910.424(b)(2), JHT must/would be required to comply fully with all other applicable provisions of Subpart T of 29 CFR part 1910 when conducting commercial diving operations.
5. The interim order will remain in effect until the Agency publishes a final decision on the application for a permanent variance, or until the Agency modifies or revokes the interim order in accordance with 29 CFR 1905.13, whichever occurs first.
Abbreviations used throughout this proposed permanent variance would include the following:
1. When using a BCD for SCUBA diving, JHT will/would ensure that: The device is used in accordance with the manufacturer's instructions; is capable of being inflated orally and via the diver's primary breathing gas supply; and all divers carry an independent reserve cylinder of breathing gas with a separate regulator that could be used for BCD inflation in an emergency.
2. When SCUBA diving, JHT will/would ensure that divers use an inflatable flotation device that is: Capable of maintaining the diver at the surface in a positively buoyant state; and have a manually activated inflation source, an oral inflation device, and an exhaust valve.
3. When SCUBA diving, JHT will/would ensure that divers are never permitted to dive alone unless they are line-tended and provided with topside support (as a minimum, topside support includes a designated person-in-charge and a standby diver).
1. For any dive that is outside the no-decompression limits or deeper than 130 fsw or using mixed gas with a percentage of oxygen less than air as a breathing mixture, JHT will/would instruct the diver to remain awake and in the vicinity of the decompression chamber, which is at the dive location for at least one hour after the dive (including decompression or treatment as appropriate).
2. For any dive using air or a nitrox breathing-gas mixture within the no-decompression limits that is deeper than 100 fsw but no deeper than 130 fsw, JHT will/would make available within four hours of the dive location, a decompression chamber capable of recompressing the diver at the surface to a minimum of 165 fsw (6 ATA).
3. For any dive using air or nitrox breathing-gas mixture within the no-decompression limits that is deeper than 100 fsw but no deeper than 130 fsw, JHT will/would make available a decompression chamber that is: dual-lock, multiplace, and located within four hours of the dive location.
4. JHT
5. JHT will/would be prohibited from conducting SCUBA diving using air or nitrox breathing-gas mixture at depths deeper than 100 fsw but no deeper than 130 fsw, or outside the no-decompression limits, unless a 6 ATA decompression chamber is ready for use (diving operations performed for instructional purposes in accordance with § 1910.401(a)(2)(i) are exempt).
6. When using a nitrox breathing-gas mixture, JHT will/would have to meet the no-decompression provisions of Appendix C to the CDO rule (
JHT will/would be required to:
1. Develop and implement an effective qualification and training program for its affected divers that as a minimum, meets the requirements set forth in 29 CFR 1910.410 qualifications of a dive team;
2. Ensure that each affected diver (including, but not limited to, current and newly assigned to be involved in diving operations under the NDP) successfully completes NOAA's three-week, 140-hour “Working Diver” course;
3. Ensure that the diver training program also includes the following: (a) Instruction in the conditions of the proposed variance; (b) annual refresher training in oxygen administration (academic and practical components); (c) instruction in maintaining current CPR/AED and First Aid certification; (d) maintaining proficiency in diving by making at least three (3) dives per quarter; (e) completing and passing an annual swim test; (f) completing and passing an annual skills test to demonstrate the diver's ability to safely operate underwater; (g) successfully completing one or more annual rescue drills to demonstrate the diver's ability to surface, extricate, treat and evacuate the victim of a diving accident; and (h) instruction in properly verifying that the diver's life support gear was serviced annually by a certified technician;
4. Document the training in order to provide a means of tracking the training received by divers and, consequently, to prompt JHT to update that training if necessary.
JHT will/would be required to:
1. Maintain records of recordable injuries that occur as a result of diving operations conducted for NOAA under the NDP;
2. Ensure that the information gathered and recorded under this provision, in concert with the information provided under proposed condition G (using OSHA 301 Incident Report form to investigate and record dive-related recordable injuries as defined by 29 CFR 1904.4, 1904.7, 1904.8 through 1904.12), would enable the JHT and OSHA to determine the effectiveness of the proposed permanent variance in preventing DCS and other dive-related injuries and illnesses.
JHT will/would be required to:
1. Notify the OTPCA and the Area Office closest to the dive location of any recordable injuries, illnesses, in-patient hospitalizations, amputations, loss of an eye, or fatality that occur as a result of diving operations within eight (8) hours of the incident;
2. Provide OTPCA and the Area Office closest to the dive location within twenty-four (24) hours of the incident with a copy of the incident investigation report (using OSHA 301 form);
3. Include on the OSHA 301 form information on the diving conditions associated with the recordable injury or illness, the root-cause determination, and preventive and corrective actions identified and implemented;
4. Provide its certification that it informed affected divers of the incident and the results of the incident investigation;
5. Notify OTPCA and the Area Office closest to the dive location within fifteen (15) working days should the applicant need to revise its dive procedures to accommodate changes in its diving operations that affect its ability to comply with the conditions of the proposed permanent variance;
6. Obtain OSHA's written approval prior to implementing the revision in its dive procedures to accommodate changes in its diving operations that affect its ability to comply with the conditions in the proposed permanent variance;
7. By the fifteenth (15th) of January, at the beginning of each new calendar year, provide OTPCA, and the Area and Regional Offices closest to the preceding year's dive locations, with a report summarizing the dives completed during the year just ended and evaluating the effectiveness of the variance conditions in providing a safe and healthful work environment and in preventing dive-related incidents;
8. Notify OSHA if it ceases to do business, has a new address or location for its main office, or transfers the operations covered by the proposed permanent variance to a successor company; and
9. Ensure that OSHA would approve the transfer of the interim order or permanent variance to a successor company.
OSHA will publish a copy of this notice in the
Thomas M. Galassi, Acting Deputy Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C. 655(d), Secretary of Labor's Order No. 1–2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1905.11.