Federal Register / Vol. 88, No. 222 / Monday, November 20, 2023 / Notices 80771 

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 

applicants 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 another 

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. 2023–25566 Filed 11–17–23; 8:45 am] 

BILLING CODE 4510–26–P 

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. 

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: 


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1Federal 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. 

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. 

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 


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2A 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). 

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 KBRemployed 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

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 overpressurizing 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 


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3Appendix 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). 

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. 

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. 

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 NASAemployed 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 nodecompression 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 belowdescribed conditions form the basis of 

the interim order and the requested 

permanent variance.4

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 


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5A 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. 

6Section 1910.401(a)(2) provides that the CDO 

standard does not apply to any dive (i) performed 

solely for instructional purposes, using opencircuit, 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.’’ 

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). 

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 nodecompression 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 


ddrumheller on DSK120RN23PROD with NOTICES1
80776 Federal Register / Vol. 88, No. 222 / Monday, November 20, 2023 / Notices 

7See 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/RKform300pkgfillable-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). 

the interim order and proposed 

permanent variance in preventing DCS 

and other dive-related injuries and 

illnesses.7

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 rootcause 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 exposurerelated (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 


ddrumheller on DSK120RN23PROD with NOTICES1
Federal Register / Vol. 88, No. 222 / Monday, November 20, 2023 / Notices 80777 

workers receive updated information 

regarding any safety-related hazards and 

incidents, and corrective actions taken, 

prior to the start of each shift. The 

proposed condition also requires the 

applicant to ensure that reliable means 

of emergency communications are 

available and maintained for affected 

workers and support personnel during 

diving activities. Availability of such 

reliable means of communications 

would enable affected workers and 

support personnel to respond quickly 

and effectively to hazardous conditions 

or emergencies that may develop during 

diving activities at NASA’s NBL. 

F. Worker Qualification and Training 

KBR would be required to: 

1. Follow the requirements of the 

NASA NBL Safety Program, including 

the NBL Safe Practices Manual, as well 

as any instruction provided by NASA’s 

DSB; 

2. Ensure that prior to entering the 

water, all KBR employees conducting 

dives at the NBL have been physically 

examined for fitness to dive by the NBL 

medical officer of the day or a human 

test support group medical technician. 

G. Recordkeeping 

In addition to completing OSHA Form 

301 Injury and Illness Incident Report 

and OSHA Form 300 Log of WorkRelated 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 

LEGAL SERVICES CORPORATION 

Pro Bono Innovation Fund Process for 

Submitting Pre-Applications for 2024 

Grants 

AGENCY: Legal Services Corporation. 

ACTION: Notice. 

SUMMARY: The Legal Services 

Corporation (LSC) issues this Notice 

describing the conditions for submitting 

a Pre-Application for 2024 Pro Bono 

Innovation Fund grants. 

DATES: Pre-applications must be 

submitted by 11:59 p.m. EST on 

Monday, January 16, 2024. 

ADDRESSES: Letters of Intent must be 

submitted electronically at http://

lscgrants.lsc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Katherine Harris, Special Grant Program 

Coordinator, Office of Program 

Performance, Legal Services 

Corporation, 3333 K Street NW, 

Washington, DC 20007; (202) 295–1572 

or harrisk@lsc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

Since 2014, Congress has provided an 

annual appropriation to LSC ‘‘for a Pro 

Bono Innovation Fund.’’ See, e.g., 

Consolidated Appropriations Act, 2023, 

Public Law 117–328, 136 Stat. 4553 

(2022). LSC requested these funds for 

grants to ‘‘develop, test, and replicate 

innovative pro bono efforts that can 

enable LSC grantees to expand clients’ 

access to high quality legal assistance.’’ 

LSC Budget Request, Fiscal Year 2014 at 

26 (2013). The grants must involve 

innovations that are either ‘‘new ideas’’ 

or ‘‘new applications of existing best 

practices.’’ Id. Each grant would ‘‘either 

serve as a model for other legal services 

providers to follow or effectively 

replicate a prior innovation. Id. The 

Senate Appropriations Committee 

explained that these funds ‘‘will support 

innovative projects that promote and 

enhance pro bono initiatives throughout 

the Nation,’’ and the House 

Appropriations Committee directed LSC 

‘‘to increase the involvement of private 

attorneys in the delivery of legal 

services to [LSC-eligible] clients.’’ 

Senate Report 114–239 at 123 (2016), 

House Report 113–448 at 85 (2014). 

Since its inception, the Pro Bono 

Innovation Fund has advanced LSC’s 

goal of increasing the quantity and 

quality of legal services by funding 

projects that more efficiently and 

effectively involve pro bono volunteers 

in serving the critical unmet legal needs 

of LSC-eligible clients. In 2017, LSC 

built on these successes by creating 

three funding categories to better focus 


ddrumheller on DSK120RN23PROD with NOTICES1