[Federal Register Volume 88, Number 222 (Monday, November 20, 2023)]
[Notices]
[Pages 80764-80771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25566]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2023-0009]


NASA Neutral Buoyancy Laboratory Operations Contract; Application 
for Permanent Variance and Interim Order; Grant of Interim Order; 
Request for Comments

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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SUMMARY: In this notice, OSHA announces the application of NASA's

[[Page 80765]]

Neutral Buoyancy Laboratory Operations Contract (NOC or ``the 
applicants'') 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 NOC's 
application, and announces the granting of an interim order. NOC is a 
team of contractors consisting of Vertex TTS, Oceaneering International 
Inc. (Oll), Bastion Technologies Inc., Rothe Enterprises, Rothe 
Development, International Preparedness Associates Inc. (IPA), MRI, and 
EPro. NOC'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 applicants 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: Comments may be submitted as follows:
    Electronically: You may submit comments and attachments 
electronically at: https://www.regulations.gov, which is the Federal 
eRulemaking Portal. Follow the instructions online for submitting 
comments.
    Instructions: All submissions must include the agency name and OSHA 
docket number (OSHA-2023-0009). All comments, including any personal 
information you provide, are placed in the public docket without 
change, and may be made available online at https://www.regulations.gov. Therefore, OSHA cautions commenters about 
submitting information they do not want made available to public, or 
submitting materials that contain personal information (either about 
themselves or others), such as Social Security numbers and birthdates.
    Docket: To read or download comments or other material in the 
docket, go to https://www.regulations.gov. Documents in the docket 
(including this Federal Register notice) are listed in the https://www.regulations.gov index; however, some information (e.g., copyrighted 
material) is not publicly available to read or download through the 
website. All submissions, including copyrighted material, are available 
for inspection at the OSHA Docket Office. Contact the OSHA Docket 
Office at (202) 693-2350 (TTY (877) 889-5627 for assistance in locating 
docket submission.
    Extension of comment period: Submit requests for an extension of 
the comment period on or before December 20, 2023 to the Office of 
Technical Programs and Coordination Activities, Directorate of 
Technical Support and Emergency Management, Occupational Safety and 
Health Administration, U.S. Department of Labor, 200 Constitution 
Avenue NW, Room N-3653, Washington, DC 20210, or by fax to (202) 693-
1644.

FOR FURTHER INFORMATION CONTACT: Information regarding this notice is 
available from the following sources:
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office 
of Communications, U.S. Department of Labor; telephone: (202) 693-1999; 
email: <a href="/cdn-cgi/l/email-protection#5e333b37323730393b2c70382c3f303d372d6c1e3a313270393128"><span class="__cf_email__" data-cfemail="513c34383d383f3634237f3723303f3238226311353e3d7f363e27">[email protected]</span></a>.
    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: <a href="/cdn-cgi/l/email-protection#1e6c717c77706d717030757b6877705e7a717230797168"><span class="__cf_email__" data-cfemail="196b767b70776a767737727c6f7077597d7675377e766f">[email protected]</span></a>.
    Copies of this Federal Register notice: Electronic copies of this 
Federal Register notice are available at https://www.regulations.gov. 
This Federal Register notice, as well as news releases and other 
relevant information, also are available at OSHA's web page at https://www.osha.gov.
    Hearing Requests: According to 29 CFR 1905.15, hearing requests 
must include: (1) a short and plain statement detailing how the 
proposed variance would affect the requesting party; (2) a 
specification of any statement or representation in the variance 
application that the commenter denies, and a concise summary of the 
evidence offered in support of each denial; and (3) any views or 
arguments on any issue of fact or law presented in the variance 
application.

SUPPLEMENTARY INFORMATION:

I. Notice of Application

    OSHA's standard in subpart T of 29 CFR part1910 governs commercial 
diving operations. On April 6, 2022, the eight companies comprising 
NASA's Neutral Buoyancy Laboratory Operations Contract (collectively 
NOC or the applicants) 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-2023-0009-0001). NOC's 
application also requested an interim order pending OSHA's decision on 
the variance application. NOC is located at 13000 Space Center 
Boulevard, Houston, Texas, 77059.
    Specifically, NOC 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.
    NOC is a team of contractors for the NASA, a federal government 
agency that is responsible for science and technology related to air 
and space. NOC is comprised of prime contractor Vertex TTS and sub-
contractors Oceaneering International Inc. (Oll), Bastion Technologies 
Inc., Rothe Enterprises, Rothe Development, International Preparedness 
Associates Inc. (IPA), MRI and EPro; a group of companies working at 
NASA's Neutral Buoyancy Laboratory, within the NASA Space Center in 
Houston, Texas. 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-2023-0009-0002), OSHA's Comments and Decisions to NASA's Request 
for an Alternate Standard on Diving (NASA Alternate Diving Standard). 
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 standard provides NASA with modified

[[Page 80766]]

requirements regarding the use of decompression chambers, including 
requiring the diver to remain awake and in the vicinity of the 
decompression chamber at the dive location for at least 10 minutes 
after the dive.
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    \1\ Federal agency heads may seek and obtain approval for 
alternate standards from OSHA pursuant to 29 CFR 1960.17. An 
alternate standard may only be approved upon a showing that the 
alternate standard will provide equivalent or greater protection for 
the affected employees than compliance with the OSHA standard.
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    NOC'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 standard, which only covers NASA employees. To permit NOC's 
divers to dive under the same standards as their NASA-employed 
colleagues, NOC 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 standard.
    NOC contends that the proposed variance conditions outlined in 
their application provide NOC'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. NOC 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 NOC'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 NOC to use the NASA alternate standard would 
provide a workplace for NOC's 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 applicants have 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 
applicants 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 NOC's Variance Application

A. Background

    On December 15, 2020, NASA submitted an application 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-2023-0009-0003). 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 for 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 (EAN<INF>46</INF>)) 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 EAN<INF>46</INF> 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 PO<INF>2</INF> of 1.0 ata. Further, NASA 
asserted that there have been no instances of CNS oxygen toxicity with 
NBL operations to date.
    The alternate standard application asserted that the alternate 
standard provides equivalent protection to the OSHA standard. First, 
the fixed diving depth of the pool has mitigated the risk of 
decompression sickness. As a result, the NBL has eliminated the risk of 
decompression sickness and thus the need to remain within the vicinity 
of the chamber is for the control and treatment of arterial gas 
embolism only. Second, NASA asserted that a shorter observation period 
would be sufficient: ``At the NBL, a ten-minute observation provides 
the equivalent protection as a one-hour observation in the outside 
environment. Moreover, implementation of this standard will provide 
greater protection for divers by allowing them to dive on Nitrox rather 
than air routinely. This will reduce recurrent decompression stress 
experienced by the divers, along with the resulting long-term health 
problems that occur from repetitive decompression stress, such as the 
risk of dysbaric osteonecrosis (bone death).'' Additionally: ``NBL 
divers operate under no-decompression limits that are more conservative 
than the U.S. Navy. The OSHA regulations for mixed gas diving enhance 
safety when applied to gas mixtures used on long, deep, complex dives 
because of increased risk of DCS and oxygen toxicity. However, diving 
with nitrox at shallower depths, such as the NBL, is in fact safer than 
diving on air.'' Further: ``The NBL adheres to strict oxygen clean 
handling and compatibility requirements that exceed the industry 
standard for concentrations greater than 40% by volume. The alternate 
standard allows a safer gas to be breathed during all NBL events, in 
addition to allowing for fewer total diving events.''
    NASA's alternate standard application also explained that NASA 
employees working within the NBL work together to ensure that qualified 
personnel and certified systems are available to meet NASA's EVA 
requirements. NASA stated that safety and utility divers support suited 
trainees at all times in the water. Suited crew utilize surface-
supplied nitrox via an umbilical, and support divers breathe 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 
technician for fitness prior to entering the water. Suited subjects 
have their fitness to dive exam performed by the medical officer

[[Page 80767]]

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-2023-0009-0004), OSHA 
granted the alternate standard that NASA proposed for use solely at 
NASA's NBL (Docket No. OSHA-2023-0009-0005). NOC 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, NOC asserts that their divers must strictly 
follow the requirements of the NBL, which include following the 
conditions of the NASA alternate standard. However, the NASA alternate 
standard's coverage does not include NOC-employed divers, even though 
they work side-by-side with NASA-employed divers during NBL operations. 
NOC states that their divers undergo the same training as NASA NBL 
employees, and that there are no differences between NASA and NOC 
divers regarding medical clearance procedures and standards, training 
materials, equipment used, equipment maintenance, and diving procedures 
used. Accordingly, NOC seeks permission from OSHA to conducts dive 
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 
standard rather than the requirements of 29 CFR 1910.432(b)(2).

B. Requested Variance From 29 CFR 1910.423(b)(2), Requirements for 
Decompression Chambers <SUP>2</SUP>
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    \2\ A decompression chamber is ``a pressure vessel for human 
occupancy such as a surface decompression chamber, closed bell, or 
deep diving system used to decompress divers and to treat 
decompression sickness'' (29 CFR 1910.402).
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    OSHA's standards regulating the availability and use of 
decompression chambers require that for any dive outside the no-
decompression limits, deeper than 100 fsw, or using mixed gas as a 
breathing mixture, the employer must instruct the diver to remain awake 
and in the vicinity of the decompression chamber that is at the dive 
location for at least one hour after the dive (including decompression 
or treatment as appropriate) (29 CFR 1910.423(b)(2)).
    In adopting the conditions of the NASA alternate standard, NOC's 
application proposes deviating from the decompression chamber 
availability and capability requirements in OSHA's CDO standard. As 
OSHA explained when it granted the NASA Alternate Diving Standard, the 
purpose of having a decompression chamber available and ready for use 
at a dive site is to treat DCS and arterial gas embolism (AGE). DCS may 
occur from breathing air or mixed gases at diving depths and durations 
that require decompression, while AGE may result from over-pressurizing 
the lungs, usually following a rapid ascent to the surface without 
proper exhalation. If DCS or AGE develops, a decompression chamber, 
oxygen or treatment gas mixtures, and treatment tables and instructions 
must be readily available to treat these conditions effectively. 
Decompression chambers provide the most effective therapy--
recompression--for DCS and AGE.
    NOC's proposed variance would adopt the conditions of the NASA 
alternate standard that permits NASA to deviate from the requirement 
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. The NASA 
alternate standard allows divers at NASA's NBL who are diving on 
nitrox, within the no decompression limits, to remain awake and in the 
vicinity of the decompression chamber at the dive location for at least 
10 minutes after the dive. In other words, the NASA 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 29 CFR 1910.423(b)(2), 
OSHA explained that the CDO standard sets the 100 fsw limit based on 
the increased risk of developing DCS and AGE on dives deeper than 100 
fsw. However, OSHA explained that the agency amended the CDO standard 
in 2004 to permit employers of recreational diving instructors and 
diving guides to comply with an alternative set of decompression 
chamber requirements (see 69 FR 7351 (February 17, 2004)).\3\ Under the 
conditions articulated in appendix C to subpart T, eligible employers 
are not required to provide a decompression chamber at the dive site 
when engaged in SCUBA diving to 130 fsw while breathing a nitrox gas 
mixture within the no-decompression limits.
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    \3\ Appendix C incorporated into the CDO standard essentially 
the same terms as those used in a variance that OSHA granted to 
Dixie Divers, Inc., a diving school that employed several 
recreational diving instructors, in 1999 (see 64 FR 71242, December 
20, 1999).
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    OSHA explained in the NASA alternate standard that it created this 
exemption 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. NOC's 
proposed variance would adopt the identical conditions as the alternate 
standard to 29 CFR 1910.423(b)(2) that OSHA granted to NASA.
    Based on the technical review of NOC's application, the NASA 
alternate standard, and related supporting material, OSHA preliminarily 
finds that the proposed conditions would provide NOC's divers with 
protection equivalent to the CDO standard; there are no differences in 
the training requirements, medical clearance procedures and standards, 
equipment use and maintenance requirements, or diving procedures that 
apply to NASA-employed and NOC-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 NOC-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 
NOC on those same conditions.

III. Agency Preliminary Determinations

    After reviewing the proposed alternatives, OSHA has preliminarily 
determined that the applicants' proposed alternatives on the whole, 
subject to the conditions in the request and imposed by this interim 
order,

[[Page 80768]]

provide measures that are as safe and healthful as those required by 
the cited OSHA standard addressed in section II of this document.
    In addition, OSHA has preliminarily determined that the following 
alternative is at least as effective as the specified OSHA requirement.

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

    OSHA hereby announces the decision to grant an interim order 
allowing NOC'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 NOC'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 its application for a permanent variance, the 
applicants are required to comply fully with the conditions of the 
interim order as an alternative to complying with the following 
requirement of 29 CFR 1910.424(b)(2) as identified in the NASA 
alternate standard (the alternate standard) that:

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

    As described earlier in this notice, NOC proposes to adopt the 
conditions of the NASA alternate 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 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 NOC's divers who conduct 
commercial diving operations for NASA at the NBL.
    After a comprehensive review of the record, the agency 
preliminarily finds that adherence to the conditions of the proposed 
variance would provide the applicants' workers with a workplace that 
will be at least as safe and healthful as if the applicants complied 
with the requirements of 29 CFR 1910.423(b)(2). After reviewing all 
available information, including NOC'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 NOC on those same conditions.
    In order to avail itself of the interim order, NOC 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 their 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 
Proposed Permanent Variance

    This section describes the alternative means of compliance with the 
provisions of 29 CFR 1910.423(b)(2) and provides additional detail 
regarding the proposed conditions that form the basis of NOC's 
application for an interim order and permanent variance. As indicated 
earlier in this notice, NOC 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-2023-0009-0002). The below-described conditions form 
the basis of the interim order and the requested permanent variance.\4\
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    \4\ In these conditions, OSHA is using the future conditional 
form of the verb (e.g., ``would''), which pertains to the 
application for a permanent variance but the conditions are 
mandatory for purposes of the interim order.
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Proposed Condition A: Scope

    The scope of the proposed permanent variance would limit coverage 
only to the commercial diving operations performed at NASA's NBL. 
Clearly defining the scope of the proposed permanent variance provides 
NOC, NOC's employees, potential future applicants, other stakeholders, 
the public, and OSHA with necessary information regarding the work 
situations in which the proposed permanent variance would apply. To the 
extent that NOC 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 applicants who comprise the NOC 
(Vertex TTS, Oll, Bastion Technologies Inc., Rothe Enterprises, Rothe 
Development, IPA, MRI, and EPro), and only to work at NASA's Neutral 
Buoyancy Laboratory. As a result, it is important to understand that if 
OSHA were to grant NOC 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, NOC would have to comply fully with all safety and health 
provisions that are applicable to commercial diving

[[Page 80769]]

operations as specified by 29 CFR part 1910, subpart T, except for the 
requirements specified by 29 CFR 1910.423(b)(2).
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    \5\ A class or group of employers (such as members of a trade 
alliance or association) may apply jointly for a variance provided 
an authorized representative for each employer signs the application 
and the application identifies each employer's affected facilities.
    \6\ Section 1910.401(a)(2) provides that the CDO standard does 
not apply to any dive (i) performed solely for instructional 
purposes, using open-circuit, compressed-air SCUBA and conducted 
within the no-decompression limits; (ii) performed solely for 
search, rescue, or related public safety purposes by or under the 
control of a governmental agency; (iii) governed by 45 CFR part 46 
(Protection of Human Subjects, U.S. Department of Health and Human 
Services) or equivalent rules or regulations established by another 
federal agency, which regulate research, development, or related 
purposes involving human subjects; or (iv) fitting the standard's 
definition of ``scientific diving.''
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    The interim order only applies to NOC'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 applicants' and their employees' understanding of the 
conditions specified by the proposed permanent variance.

Proposed Condition D: Requirements for Decompression Chambers

    This proposed condition requires that, for any dive that is within 
the no-decompression limits and using nitrox as a breathing mixture, 
NOC 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, NOC 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 applicants 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 
applicants 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 NOC's employees 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, NOC 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 NOC 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, NOC must maintain a record of any recordable injury, 
illness, or fatality (as defined by 29 CFR part 1904) by completing the 
OSHA Form 301 Incident Report and OSHA Form 300 Log of Work-Related 
Injuries and Illnesses. The applicants 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 applicants 
would be required 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 I (using OSHA Form 301 Injury and Illness Incident Report to 
investigate and record dive-related recordable injuries as defined by 
29 CFR 1904.4, 1904.7, and 1904.8 through 1904.12), would enable the 
applicants and OSHA to assess the effectiveness of the interim order 
and proposed permanent variance in preventing DCS and other dive-
related injuries and illnesses.\7\
---------------------------------------------------------------------------

    \7\ See 29 CFR part 1904, Recording and Reporting Occupational 
Injuries and Illnesses (https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9631); recordkeeping 
forms and instructions (https://www.osha.gov/recordkeeping/RKform300pkg-fillable-enabled.pdf); and updates to OSHA's 
recordkeeping rule, 79 FR 56130, September 18, 2014 (more 
information available at: (https://www.osha.gov/recordkeeping2014/index.html).
---------------------------------------------------------------------------

    Under the proposed condition, the applicants are required, within 
specified periods of time, to notify OSHA of: (1) any recordable 
injury, illness, in-patient hospitalization, amputation, loss of an 
eye, or fatality that occurs as a result of NBL dive-related operations 
within eight (8) hours of the incident ; (2) provide OTPCA and the 
Houston South Texas Area Office within twenty-four (24) hours of the 
incident with a copy of the incident investigation report (using OSHA 
Form 301 Injury and Illness Incident Report); (3) include on OSHA Form 
301 Injury and Illness Incident Report information on the hyperbaric 
conditions associated with the recordable injury or illness, the root-
cause determination, and preventive and corrective actions identified 
and implemented; (4) provide the certification that affected workers 
were informed of the incident and the results of the incident 
investigation; (5) notify OTPCA and the Houston South Texas OSHA Area 
Office within 15 working days should the applicants revise their dive 
procedures to accommodate changes in their diving operations that 
affect their ability to comply with the conditions of the proposed 
permanent variance; and (6) provide OTPCA and the Houston South Texas 
OSHA Area Office, by the fifteenth (15th) of January, at the beginning 
of each new calendar year, a report summarizing the dives completed 
during the year just ended and evaluating the effectiveness of the 
variance conditions in providing a safe and healthful work environment 
and in preventing dive-related incidents.
    It should be noted that the requirement for completing and 
submitting the hyperbaric exposure-related (recordable) incident 
investigation report (OSHA 301 Injury and Illness Incident Report) is 
more restrictive than the current recordkeeping requirement of 
completing OSHA Form 301 Injury and Illness Incident Report within 
seven (7) calendar days of the incident

[[Page 80770]]

(1904.29(b)(3)). This modified, more stringent incident investigation 
and reporting requirement is restricted to intervention-related 
(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 applicants' identification 
and implementation of appropriate corrective and preventive actions.
    Further, these notification requirements also enable the 
applicants, their employees, and OSHA to assess the effectiveness of 
the permanent variance in providing the requisite level of safety to 
the applicants' 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 applicants to prevent similar incidents in the future.
    Additionally, this proposed condition requires the applicants 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 a 
successor company must be approved by OSHA. These requirements allow 
OSHA to communicate effectively with the applicants regarding the 
status of the proposed permanent variance, and expedite the agency's 
administration and enforcement of the permanent variance. Stipulating 
that an applicants are required to have OSHA's approval to transfer a 
variance to a successor 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 Permanent 
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 NOC. In addition, these conditions specify the 
alternative means of compliance that OSHA proposes for NOC'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 NOC 
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 NOC'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 part 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 NOC will remain in effect until OSHA 
modifies or revokes this interim order or grants NOC'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
EAN<INF>X</INF>--Enriched Air Nitrox (where X denotes percentage of 
oxygen)
EVA--Extravehicular Activities
fsw-feet of seawater
NBL--NASA Neutral Buoyancy Laboratory
NOC--NASA's Neutral Buoyancy Laboratory Operations Contract
OSHA--Occupational Safety and Health Administration
OTPCA-- OSHA's Office of Technical Programs and Coordination 
Activities
PO<INF>2</INF>--Partial Pressure of Oxygen in ATA
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, NOC 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 applicants 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 
applicants 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

    NOC 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 NOC employees 
conducting dives at the NBL are physically examined for fitness to dive 
by the NBL medical officer of the day or a human test support group 
medical technician.

G. Recordkeeping

    In addition to completing OSHA Form 301 Injury and Illness Incident 
Report and OSHA Form 300 Log of Work-Related Injuries and Illnesses, 
NOC 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 
1904.4, 1904.7, 1904.8 through 1904.12)), would enable NOC and OSHA to 
determine the effectiveness of the proposed permanent variance in 
preventing DCS and other dive-related injuries and illnesses.

H. Notifications

    NOC 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

[[Page 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


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