[Federal Register Volume 88, Number 47 (Friday, March 10, 2023)]
[Notices]
[Pages 15080-15090]
[FR Doc No: 2023-04883]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2022-0007]

McNally/Kiewit Joint Venture: Grant of Permanent Variance

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

ACTION: Notice of permanent variance.

-----------------------------------------------------------------------

SUMMARY: In this notice, OSHA grants a permanent variance to McNally/
Kiewit Joint Venture (McNally) related to work in compressed-air
environments.

DATES: The permanent variance specified by this notice becomes
effective on March 10, 2023 and shall remain in effect until the
completion of the Shoreline Storage Tunnel project or until modified or
revoked by OSHA.

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, phone:<PHONE_NUMBER>; email:
[email protected].
    General and Technical Information: Contact 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; phone:
(202) 693-2110 or email: [email protected].

SUPPLEMENTARY INFORMATION:
    Copies of this Federal Register notice: Electronic copies of this
Federal Register notice are available at http://www.regulations.gov.
This Federal Register notice and other relevant information are also
available at OSHA's web page at http://www.osha.gov.

I. Overview

    On November 12, 2021, OSHA received a variance application
submitted by letter from McNally/Kiewit joint venture (``McNally'' or
``the applicant'') regarding the Shoreline Storage Tunnel project,
which consists of boring a 12-foot diameter tunnel under a subaqueous
roadway in Cleveland, Ohio. McNally requested a permanent variance from
several provisions of 29 CFR 1926.803, the OSHA standard that regulates
construction work in compressed air environments. Specifically, McNally
sought a variance from the provisions of the standard that: (1)
prohibit compressed-air worker exposure to pressures exceeding 50
pounds per square inch (p.s.i.) except in an

emergency (29 CFR 1926.803(e)(5)); \1\ (2) require the use of the
decompression values specified in decompression tables in Appendix A of
the compressed-air standard for construction (29 CFR 1926.803(f)(1));
and (3) require the use of automated operational controls and a special
decompression chamber (29 CFR 1926.803(g)(1)(iii) and .803(g)(1)(xvii),
respectively). McNally also requested an interim order pending OSHA's
decision on the application for a variance (Document ID No. OSHA-2022-
0007-0002).
---------------------------------------------------------------------------

    \1\ The decompression tables in Appendix A of subpart S express
the maximum working pressures as pounds per square inch gauge
(p.s.i.g.), with a maximum working pressure of 50 p.s.i.g.
Therefore, throughout this notice, OSHA expresses the 50 p.s.i.
value specified by 29 CFR 1926.803(e)(5) as 50 p.s.i.g., consistent
with the terminology in Appendix A, Table 1 of subpart S.
---------------------------------------------------------------------------

    OSHA reviewed McNally's application for a permanent variance and
interim order and determined that it was appropriately submitted in
compliance with the applicable variance procedures in Section 6(d) of
the Occupational Safety and Health Act of 1970 (OSH Act; 29 U.S.C. 655)
and OSHA's regulations at 29 CFR 1905.11 (variances and other relief
under section 6(d)), including the requirement that the applicant
inform workers and their representatives of their rights to petition
the Assistant Secretary of Labor for Occupational Safety and Health for
a hearing on the variance application.
    OSHA reviewed the alternative procedures in McNally's application
and preliminarily determined that the applicant's proposed alternatives
on the whole, subject to the conditions in the request and imposed by
the interim order, provide measures that are as safe and healthful as
those required by the cited OSHA standards. On September 26, 2022, OSHA
published a Federal Register notice announcing McNally's application
for permanent variance, stating the preliminary determination along
with the basis of that determination, and granting the interim order
(87 FR 58379). OSHA requested comments on each.
    OSHA did not receive any comments or other information disputing
the preliminary determination that the alternatives were at least as
safe as OSHA's standard, nor any objections to OSHA granting a
permanent variance. Accordingly, through this notice OSHA grants a
permanent variance, subject to the conditions set out in this document.

A. Background

    The information that follows about McNally, its methods, and its
project comes from McNally's variance application.
    McNally (the applicant) is a contractor that works on complex
tunnel projects using innovations in tunnel-excavation methods and is
the contractor for the Shoreline Storage Tunnel Project (the project).
The applicant's workers engage in the construction of tunnels using
advanced shielded mechanical excavation techniques in conjunction with
an earth pressure balanced tunnel boring machine (TBM). Using shielded
mechanical excavation techniques, in conjunction with precast concrete
tunnel liners and backfill grout, TBMs provide methods to achieve the
face pressures required to maintain a stabilized tunnel face through
various geologies and isolate that pressure to the forward section (the
working chamber) of the TBM.
    McNally asserts that it bores tunnels using a TBM at levels below
the water table through soft soils consisting of clay, silt, and sand.
TBMs are capable of maintaining pressure at the tunnel face, and
stabilizing existing geological conditions, through the controlled use
of a mechanically driven cutter head, bulkheads within the shield,
ground-treatment foam, and a screw conveyor that moves excavated
material from the working chamber. The forward-most portion of the TBM
is the working chamber, and this chamber is the only pressurized
segment of the TBM. Within the shield, the working chamber consists of
two sections: the forward working chamber and the staging chamber. The
forward working chamber is immediately behind the cutter head and
tunnel face. The staging chamber is behind the forward working chamber
and between the man-lock door and the entry door to the forward working
chamber.
    The TBM has twin man-locks located between the pressurized working
chamber and the non-pressurized portion of the machine. Each man-lock
has two compartments. This configuration allows workers to access the
man-locks for compression and decompression, and medical personnel to
access the man-locks if required in an emergency.
    McNally's Hyberbaric Operations Manual (HOM) for the Shoreline
Storage Tunnel Project indicated that the maximum pressure to which it
is likely to expose workers during project interventions for the
Shoreline Storage Tunnel Project is 55 p.s.i. Therefore, to work
effectively, McNally must perform hyperbaric interventions in
compressed air at pressures nearly 10% higher than the maximum pressure
specified by the existing OSHA standard, 29 CFR 1926.803(e)(5), which
states: ``No employee shall be subjected to pressure exceeding 50
p.s.i. except in emergency'' (see footnote 1).
    McNally employs specially trained personnel for the construction of
the tunnel. To keep the machinery working effectively, McNally asserts
that these workers must periodically enter the excavation working
chamber of the TBM to perform hyperbaric interventions during which
workers would be exposed to air pressures up to 55 p.s.i., which
exceeds the maximum pressure specified by the existing OSHA standard at
29 CFR 1926.803(e)(5). These interventions consist of conducting
inspections or maintenance work on the cutter-head structure and
cutting tools of the TBM, such as changing replaceable cutting tools
and disposable wear bars, and, in rare cases, repairing structural
damage to the cutter head. These interventions are the only time that
workers are exposed to compressed air. Interventions in the working
chamber (the pressurized portion of the TBM) take place only after
halting tunnel excavation and preparing the machine and crew for an
intervention.
    During interventions, workers enter the working chamber through one
of the twin man-locks that open into the staging chamber. To reach the
forward part of the working chamber, workers pass through a door in a
bulkhead that separates the staging chamber from the forward working
chamber. The man-locks and the working chamber are designed to
accommodate three people, which is the maximum crew size allowed under
the permanent variance. When the required decompression times are
greater than work times, the twin man-locks allow for crew rotation.
During crew rotation, one crew can be compressing or decompressing
while the second crew is working. Therefore, the working crew always
has an unoccupied man-lock at its disposal.
    McNally asserts that these innovations in tunnel excavation have
greatly reduced worker exposure to hazards of pressurized air work
because they have eliminated the need to pressurize the entire tunnel
for the project and would thereby reduce the number of workers exposed,
as well as the total duration of exposure, to hyperbaric pressure
during tunnel construction. These advances in technology substantially
modified the methods used by the construction industry to excavate
subaqueous tunnels compared to the caisson work regulated by the
current OSHA compressed-air standard for construction at 29 CFR
1926.803.

    In addition to the reduced exposures resulting from the innovations
in tunnel-excavation methods, McNally asserts that innovations in
hyperbaric medicine and technology improve the safety of decompression
from hyperbaric exposures. These procedures, however, would deviate
from the decompression process that OSHA requires for construction in
29 CFR 1926.803(e)(5) and (f)(1) and the decompression tables in
Appendix A of 29 CFR 1926, subpart S. Nevertheless, according to
McNally, their use of decompression protocols incorporating oxygen is
more efficient, effective, and safer for tunnel workers than compliance
with the decompression tables specified by the existing OSHA standard.
    McNally contends that the alternative safety measures included in
the application provide McNally's workers with a place of employment
that is at least as safe under its proposed alternatives as they would
be under OSHA's compressed-air standard for construction. McNally also
provided OSHA a project-specific HOM, (OSHA-2022-0007-0003) that
requires specialized medical support and hyperbaric supervision to
provide assistance to a team of specially trained man-lock attendants
and hyperbaric or compressed-air workers to support their assertions of
equivalency in worker protection.
    OSHA included all of the above information in the Federal Register
notice regarding McNally's variance application and did not receive any
comments disputing any of that information, including the safety
assertions made by McNally in the Variance application.

II. The Variance Application

    Pursuant to the requirements of OSHA's variance regulations (29 CFR
1905.11), the applicant has certified that it notified its workers \2\
of the variance modification 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 has certified that it informed its workers of their right to
petition the Assistant Secretary of Labor for Occupational Safety and
Health for a hearing on the variance modification application.
---------------------------------------------------------------------------

    \2\ See the definition of ``Affected employee or worker'' in
section VII.C. of this Notice.
---------------------------------------------------------------------------

III. OSHA History of Approval of Nearly Identical Variance Requests

    OSHA has previously approved several nearly identical variances
involving the same types of tunneling equipment used for similar
projects (tunnel construction variances). OSHA notes that it granted
five subaqueous tunnel construction permanent variances from the same
provisions of OSHA's compressed-air standard (29 CFR 1926.803(e)(5),
(f)(1), (g)(1)(iii), and (g)(1)(xvii)) that are the subject of the
present application: (1) Impregilo, Healy, Parsons, Joint Venture (IHP
JV) for the completion of the Anacostia River Tunnel in Washington, DC
(80 FR 50652 (August 20, 2015)); (2) Traylor JV for the completion of
the Blue Plains Tunnel in Washington, DC (80 FR 16440 (March 27,
2015)); (3) Tully/OHL USA Joint Venture for the completion of the New
York Economic Development Corporation's New York Siphon Tunnel project
(79 FR 29809 (May 23, 2014)); (4) Salini/Impregilo/Healy Joint Venture
for the completion of the Northeast Boundary Tunnel in Washington, DC
(85 FR 27767 (May 11, 2020)); and (5) Ballard Marine Construction for
the completion of the Suffolk County Tunnel Project in Suffolk, New
York (86 FR 5253 (January 19, 2021)). OSHA has also granted interim
orders to two applicants, Ballard Marine for the Suffolk County Outfall
Tunnel project in West Babylon, New York (86 FR 5253 (January 19,
2021)) and Traylor Shea Joint Venture for the Alexandria RiverRenew
Tunnel Project in Alexandria, Virginia and Washington, DC (87 FR 54536
(September 6, 2022)). The proposed alternate conditions in this notice
are nearly identical to the alternate conditions of the previous
permanent variances.\3\ OSHA is not aware of any injuries or other
safety issues that arose from work performed under these conditions in
accordance with the previous variances.
---------------------------------------------------------------------------

    \3\ The previous tunnel construction variances allowed further
deviation from OSHA standards by permitting employee exposures above
50 p.s.i. based on the composition of the soil and the amount of
water that will be above the tunnel for various sections of this
project. The current proposed variance includes substantively the
same safeguards as the variances that OSHA granted previously even
though employees will not be exposed to pressures higher than 55
p.s.i.g.
---------------------------------------------------------------------------

IV. Applicable OSHA Standard and the Relevant Variances

A. Variance From Paragraph (e)(5) of 29 CFR 1926.803, Prohibition of
Exposure to Pressure Greater Than 50 p.s.i.g. (See Footnote 1)

    The applicant states that it may perform hyperbaric interventions
at pressures up to 55 p.s.i.g. in the working chamber of the TBM; this
pressure exceeds the pressure limit of 50 p.s.i. specified for
nonemergency purposes by 29 CFR 1926.803(e)(5). The TBM has twin man-
locks, with each man-lock having two compartments. This configuration
allows workers to access the man-locks for compression and
decompression, and medical personnel to access the man-locks if
required in an emergency.
    TBMs are capable of maintaining pressure at the tunnel face, and
stabilizing existing geological conditions, through the controlled use
of a mechanically driven cutter head, bulkheads within the shield,
ground-treatment foam, and a screw conveyor that moves excavated
material from the working chamber. As noted earlier, the forward-most
portion of the TBM is the working chamber, and this chamber is the only
pressurized segment of the TBM. Within the shield, the working chamber
consists of two sections: the staging chamber and the forward working
chamber. The staging chamber is the section of the working chamber
between the man-lock door and the entry door to the forward working
chamber. The forward working chamber is immediately behind the cutter
head and tunnel face.
    McNally will pressurize the working chamber to the level required
to maintain a stable tunnel face. Pressure in the staging chamber
ranges from atmospheric (no increased pressure) to a maximum pressure
equal to the pressure in the working chamber. The applicant asserts
that they may have to perform interventions at pressures up to 55
p.s.i.
    During interventions, workers enter the working chamber through one
of the twin man-locks that open into the staging chamber. To reach the
forward part of the working chamber, workers pass through a door in a
bulkhead that separates the staging chamber from the forward working
chamber. The maximum crew size allowed in the forward working chamber
is three. At certain hyperbaric pressures (i.e., when decompression
times are greater than work times), the twin man-locks allow for crew
rotation. During crew rotation, one crew can be compressing or
decompressing while the second crew is working. Therefore, the working
crew always has an unoccupied man-lock at its disposal.
    Further, McNally has developed a project-specific HOM (OSHA-2022-
0007-0003) that describes in detail the hyperbaric procedures, the
required medical examination used during the tunnel-construction
project, the standard operating procedures and the

emergency and contingency procedures. The procedures include using
experienced and knowledgeable man-lock attendants who have the training
and experience necessary to recognize and treat decompression illnesses
and injuries. The attendants are under the direct supervision of the
hyperbaric supervisor (a competent person experienced and trained in
hyperbaric operations, procedures and safety) and attending physician.
In addition, procedures include medical screening and review of
prospective compressed-air workers (CAWs). The purpose of this
screening procedure is to vet prospective CAWs with medical conditions
(e.g., deep vein thrombosis, poor vascular circulation, and muscle
cramping) that could be aggravated by sitting in a cramped space (e.g.,
a man-lock) for extended periods, or by exposure to elevated pressures
and compressed gas mixtures. A transportable recompression chamber
(shuttle) is available to extract workers from the hyperbaric working
chamber for emergency evacuation and medical treatment; the shuttle
attaches to the topside medical lock, which is a large recompression
chamber. The applicant believes that the procedures included in the HOM
provide safe work conditions when interventions are necessary,
including interventions above 50 p.s.i. or 50 p.s.i.g.
    OSHA comprehensively reviewed the project-specific HOM and
determined that the safety and health instructions and measures it
specifies are appropriate, conform with the conditions in the variance,
and adequately protect the safety and health of the CAWs.

B. Variance From Paragraph (f)(1) of 29 CFR 1926.803, Requirement To
Use OSHA Decompression Tables

    OSHA's compressed-air standard for construction requires
decompression in accordance with the decompression tables in Appendix A
of 29 CFR 1926, subpart S (29 CFR 1926.803(f)(1)). As an alternative to
the OSHA decompression tables, the applicant proposes to use newer
decompression schedules (the 1992 French Decompression Tables) that
rely on staged decompression and supplement breathing air used during
decompression with air or oxygen (as appropriate).\4\ The applicant
asserts decompression protocols using the 1992 French Decompression
Tables for air or oxygen as specified by the Shoreline Storage Tunnel-
specific Hyperbaric Operations Manual (HOM) are safer for tunnel
workers than the decompression protocols specified in Appendix A of 29
CFR 1926, subpart S. Accordingly, the applicant commits to following
the decompression procedures described in that HOM, which would require
it to follow the 1992 French Decompression Tables to decompress CAWs
after they exit the hyperbaric conditions in the working chamber.
---------------------------------------------------------------------------

    \4\ In 1992, the French Ministry of Labour replaced the 1974
French Decompression Tables with the 1992 French Decompression
Tables, which differ from OSHA's decompression tables in Appendix A
by using: (1) staged decompression as opposed to continuous (linear)
decompression; (2) decompression tables based on air or both air and
pure oxygen; and (3) emergency tables when unexpected exposure times
occur (up to 30 minutes above the maximum allowed working time).
---------------------------------------------------------------------------

    Depending on the maximum working pressure and exposure times, the
1992 French Decompression Tables provide for air decompression with or
without oxygen. McNally asserts that oxygen decompression has many
benefits, including (1) keeping the partial pressure of nitrogen in the
lungs as low as possible; (2) keeping external pressure as low as
possible to reduce the formation of bubbles in the blood; (3) removing
nitrogen from the lungs and arterial blood and increasing the rate of
nitrogen elimination; (4) improving the quality of breathing during
decompression stops so that workers are less tired and to prevent bone
necrosis; (5) reducing decompression time by about 33 percent as
compared to air decompression; and (6) reducing inflammation.
    In addition, the project-specific HOM requires a physician,
certified in hyperbaric medicine, to manage the medical condition of
CAWs during hyperbaric exposures and decompression. A trained and
experienced man-lock attendant also will be present during hyperbaric
exposures and decompression. This man-lock attendant will operate the
hyperbaric system to ensure compliance with the specified decompression
table. A hyperbaric supervisor, trained in hyperbaric operations,
procedures, and safety, directly oversees all hyperbaric interventions,
and ensures that staff follow the procedures delineated in the HOM or
by the attending physician.

C. Variance From Paragraph (g)(1)(iii) of 29 CFR 1926.803,
Automatically Regulated Continuous Decompression

    McNally is applying for a permanent variance from the OSHA standard
at 29 CFR 1926.803(g)(1)(iii), which requires automatic controls to
regulate decompression. As noted above, the applicant is committed to
conducting the staged decompression according to the 1992 French
Decompression Tables under the direct control of the trained man-lock
attendant and under the oversight of the hyperbaric supervisor.
    Breathing air under hyperbaric conditions increases the amount of
nitrogen gas dissolves in a CAW's tissues. The greater the hyperbaric
pressure under these conditions and the more time spent under the
increased pressure, the greater the amount of nitrogen gas dissolved in
the tissues. When the pressure decreases during decompression, tissues
release the dissolved nitrogen gas into the blood system, which then
carries the nitrogen gas to the lungs for elimination through
exhalation. Releasing hyperbaric pressure too rapidly during
decompression can increase the size of the bubbles formed by nitrogen
gas in the blood system, resulting in decompression illness (DCI),
commonly referred to as ``the bends.'' This description of the etiology
of DCI is consistent with current scientific theory and research on the
issue (see footnote 16 in this notice discussing a 1985 NIOSH report on
DCI).
    The 1992 French Decompression Tables, proposed for use by the
applicant provide for stops during worker decompression (i.e., staged
decompression) to control the release of nitrogen gas from tissues into
the blood system. Studies show that staged decompression, in
combination with other features of the 1992 French Decompression Tables
such as the use of oxygen, result in a lower incidence of DCI than the
use of automatically regulated continuous decompression.\5\ In
addition, the applicant asserts that staged decompression administered
in accordance with its HOM is at least as

effective as an automatic controller in regulating the decompression
process because the HOM includes a hyperbaric supervisor who directly
supervises all hyperbaric interventions and ensures that the man-lock
attendant, who is a competent person in the manual control of
hyperbaric systems, follows the schedule specified in the decompression
tables, including stops.
---------------------------------------------------------------------------

    \5\ See, e.g., Dr. Eric Kindwall, EP (1997), Compressed air
tunneling and caisson work decompression procedures: development,
problems, and solutions. Undersea and Hyperbaric Medicine, 24(4),
pp. 337-345. This article reported 60 treated cases of DCI among
4,168 exposures between 19 and 31 p.s.i.g. over a 51-week contract
period, for a DCI incidence of 1.44% for the decompression tables
specified by the OSHA standard. Dr. Kindwall notes that the use of
automatically regulated continuous decompression for compressed-air
work was in some cases at the insistence of contractors and the
union, and against the advice of the expert who calculated the
decompression table and recommended using staged decompression. Dr.
Kindwall then states, ``Continuous decompression is inefficient and
wasteful. For example, if the last stage from 4 p.s.i.g. . . . to
the surface took 1h, at least half the time is spent at pressures
less than 2 p.s.i.g. . . ., which provides less and less meaningful
bubble suppression . . . .'' In addition, Dr. Kindwall addresses the
continuous-decompression protocol in the OSHA compressed-air
standard for construction, noting that ``[a]side from the tables for
saturation diving to deep depths, no other widely used or officially
approved diving decompression tables use straight line, continuous
decompressions at varying rates. Stage decompression is usually the
rule, since it is simpler to control.''
---------------------------------------------------------------------------

D. Variance From Paragraph (g)(1)(xvii) of 29 CFR 1926.803, Requirement
of Special Decompression Chamber

    The OSHA compressed-air standard for construction requires
employers to use a special decompression chamber of sufficient size to
accommodate all CAWs being decompressed at the end of the shift when
total decompression time exceeds 75 minutes (see 29 CFR
1926.803(g)(1)(xvii)). Use of the special decompression chamber enables
CAWs to move about and flex their joints to prevent neuromuscular
problems during decompression.
    Space limitations in the TBM do not allow for the installation and
use of an additional special decompression lock or chamber. The
applicant proposes that it be permitted to rely on the man-locks and
staging chamber in lieu of adding a separate, special decompression
chamber. Because only a few workers out of the entire crew are exposed
to hyperbaric pressure, the man-locks (which, as noted earlier, connect
directly to the working chamber) and the staging chamber are of
sufficient size to accommodate all exposed workers during
decompression. The applicant uses the existing man-locks, each of which
adequately accommodates a three-member crew for this purpose when
decompression lasts up to 75 minutes. When decompression exceeds 75
minutes, crews can open the door connecting the two compartments in
each man-lock (during decompression stops) or exit the man-lock and
move into the staging chamber where additional space is available. The
applicant asserts that this alternative arrangement is as effective as
a special decompression chamber in that it has sufficient space for all
the CAWs at the end of a shift and enables the CAWs to move about and
flex their joints to prevent neuromuscular problems.

V. Decision

    After reviewing the proposed alternatives, OSHA has determined that
the applicant's proposed alternatives on the whole, subject to the
conditions in the variance request and imposed by the permanent
variance, provide measures that are as safe and healthful as those
required by the cited OSHA standards addressed in section II of this
notice.
    In addition, OSHA has determined that each of the following
alternatives are at least as effective as the specified OSHA
requirements:

A. 29 CFR 1926.803(e)(5)

    McNally has developed, and proposed to implement, effective
alternative measures to the prohibition of using compressed air under
hyperbaric conditions exceeding 50 p.s.i. The alternative measures
include use of engineering and administrative controls of the hazards
associated with work performed in compressed-air conditions exceeding
50 p.s.i. while engaged in the construction of a subaqueous tunnel
using advance shielded mechanical-excavation techniques in conjunction
with the TBM. Prior to conducting interventions in the TBM's
pressurized working chamber, McNally halts tunnel excavation and
prepares the machine and crew to conduct the interventions.
Interventions involve inspection, maintenance, or repair of the
mechanical-excavation components located in the working chamber.

B. 29 CFR 1926.803(f)(1)

    The applicant has proposed to implement equally effective
alternative measures to the requirement in 29 CFR 1926.803(f)(1) for
compliance with OSHA's decompression tables. The HOM specifies the
procedures and personnel qualifications for performing work safely
during the compression and decompression phases of interventions. The
HOM also specifies the decompression tables the applicant proposes to
use (the 1992 French Decompression Tables). Depending on the maximum
working pressure and exposure times during the interventions, the
tables provide for decompression using air, pure oxygen, or a
combination of air and oxygen. The decompression tables also include
delays or stops for various time intervals at different pressure levels
during the transition to atmospheric pressure (i.e., staged
decompression). In all cases, a physician certified in hyperbaric
medicine will manage the medical condition of CAWs during
decompression. In addition, a trained and experienced man-lock
attendant, experienced in recognizing decompression sickness or
illnesses and injuries, will be present. Of key importance, a
hyperbaric supervisor, trained in hyperbaric operations, procedures,
and safety, will directly supervise all hyperbaric operations to ensure
compliance with the procedures delineated in the project-specific HOM
or by the attending physician.
    Prior to granting the five previous permanent variances to IHP JV,
Traylor JV, Tully JV, Salini-Impregilo Joint Venture, and Ballard, OSHA
conducted a review of the scientific literature and concluded that the
alternative decompression method (i.e., the 1992 French Decompression
Tables) McNally proposed would be at least as safe as the decompression
tables specified by OSHA when applied by trained medical personnel
under the conditions outlined in this variance application.
    Some of the literature indicates that the alternative decompression
method may be safer, concluding that decompression performed in
accordance with these tables resulted in a lower occurrence of DCI than
decompression conducted in accordance with the decompression tables
specified by the standard. For example, H. L. Anderson studied the
occurrence of DCI at maximum hyperbaric pressures ranging from 4
p.s.i.g. to 43 p.s.i.g. during construction of the Great Belt Tunnel in
Denmark (1992-1996).\6\ This project used the 1992 French Decompression
Tables to decompress the workers during part of the construction.
Anderson observed 6 DCI cases out of 7,220 decompression events and
reported that switching to the 1992 French Decompression tables reduced
the DCI incidence to 0.08% compared to a previous incidence rate of
0.14%. The DCI incidence in the study by H. L. Andersen is
substantially less than the DCI incidence reported for the
decompression tables specified in Appendix A.
---------------------------------------------------------------------------

    \6\ Anderson HL (2002). Decompression sickness during
construction of the Great Belt tunnel, Denmark. Undersea and
Hyperbaric Medicine, 29(3), pp. 172-188.
---------------------------------------------------------------------------

    OSHA found no studies in which the DCI incidence reported for the
1992 French Decompression Tables were higher than the DCI incidence
reported for the OSHA decompression tables.\7\
---------------------------------------------------------------------------

    \7\ Le P[eacute]chon JC, Barre P, Baud JP, Ollivier F (September
1996). Compressed air work--French Tables 1992--operational results.
JCLP Hyperbarie Paris, Centre Medical Subaquatique Interentreprise,
Marseille: Communication a l'EUBS, pp. 1-5 (see Ex. OSHA-2012-0036-
0005).
---------------------------------------------------------------------------

    OSHA's experience with the previous five variances, which all
incorporated nearly identical decompression plans and did not result in
safety issues, also provide evidence that the alternative procedure as
a whole is at least as effective for this type of tunneling project as
compliance with OSHA's decompression tables. The experience of State
Plans \8\ that either granted

variances (Nevada, Oregon and Washington) \9\ or promulgated a new
standard (California) \10\ for hyperbaric exposures occurring during
similar subaqueous tunnel-construction work, provide additional
evidence of the effectiveness of this alternative procedure.
---------------------------------------------------------------------------

    \8\ Under Section 18 of the OSH Act, Congress expressly provides
that States and U.S. territories may adopt, with Federal approval, a
plan for the development and enforcement of occupational safety and
health standards. OSHA refers to such States and territories as
``State Plans.'' Occupational safety and health standards developed
by State Plans must be at least as effective in providing safe and
healthful employment and places of employment as the Federal
standards (29 U.S.C. 667).
    \9\ These state variances are available in the docket for the
2015 Traylor JV variance: Exs. OSHA-2012-0035-0006 (Nevada), OSHA-
2012-0035-0005 (Oregon), and OSHA-2012-0035-0004 (Washington).
    \10\ See California Code of Regulations, Title 8, Subchapter 7,
Group 26, Article 154, available at http://www.dir.ca.gov/title8/sb7g26a154.html.
---------------------------------------------------------------------------

C. 29 CFR 1926.803(g)(1)(iii)

    The applicant developed, and proposed to implement, an equally
effective alternative to 29 CFR 1926.803(g)(1)(iii), which requires the
use of automatic controllers that continuously decrease pressure to
achieve decompression in accordance with the tables specified by the
standard. The applicant's alternative includes using the 1992 French
Decompression Tables for guiding staged decompression to achieve lower
occurrences of DCI, using a trained and competent attendant for
implementing appropriate hyperbaric entry and exit procedures, and
providing a competent--and attending physician certified in hyperbaric
medicine to oversee all hyperbaric operations.
    In reaching this preliminary conclusion, OSHA again notes the
experience of previous nearly identical tunneling variances, the
experiences of State Plan States, and a review of the literature and
other information noted earlier.

D. 29 CFR 1926.803(g)(1)(xvii)

    The applicant developed, and proposed to implement, an effective
alternative to the use of the special decompression chamber required by
29 CFR 1926.803(g)(1)(xvii). The TBM's man-lock and working chamber
appear to satisfy all of the conditions of the special decompression
chamber, including that they provide sufficient space for the maximum
crew of three CAWs to stand up and move around, and safely accommodate
decompression times exceeding 75 minutes. Therefore, again noting
OSHA's previous experience with nearly identical variances including
the same alternative, OSHA preliminarily determined that the TBM's man-
lock and working chamber function as effectively as the special
decompression chamber required by the standard.
    Based on a review of available evidence, the experience of State
Plans that either granted variances (Nevada, Oregon, and Washington)
\11\ or promulgated a new standard (California) \12\ for hyperbaric
exposures occurring during similar subaqueous tunnel-construction work,
and the information provided in the applicant's variance application,
OSHA is granting the permanent variance.
---------------------------------------------------------------------------

    \11\ These state variances are available in the application
docket for the original Traylor variance application: Exs. OSHA-
2012-0035-0006 (Nevada), OSHA-2012-0035-0007 (Oregon), and OSHA-
2012-0035-0008 (Washington).
    \12\ See California Code of Regulations, Title 8, Subchapter 7,
Group 26, Article 154, available at http://www.dir.ca.gov/title8/sb7g26a154.html.
---------------------------------------------------------------------------

    Pursuant to Section 6(d) of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 655), and based on the record discussed above, the
agency finds that when the McNally complies with the conditions of the
following order, the working conditions of the McNally's workers are at
least as safe and healthful as if it complied with the working
conditions specified by paragraphs (e)(5), (f)(1), (g)(1)(iii), and
(g)(1)(xvii) of 29 CFR 1926.803. Therefore, McNally must: (1) comply
with the conditions listed below under ``Conditions Specified for the
Permanent Variance'' for the period between the date of this notice and
completion of the Shoreline Storage Tunnel Project; (2) comply fully
with all other applicable provisions of 29 CFR part 1926; and (3)
provide a copy of this Federal Register notice to all employees
affected by the 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. Additionally, this order will
remain in effect until one of the following conditions occurs: (1)
completion of the Shoreline Storage Tunnel Project; or (2) OSHA
modifies or revokes this final order in accordance with 29 CFR 1905.13.

VI. Description of the Conditions Specified for the Permanent Variance

    The conditions for the variance are set out in the Order at the end
of this document. This section provides additional detail regarding the
conditions in the Order.

Condition A: Scope

    The scope of the permanent variance limits coverage to the work
situations specified under this condition. Clearly defining the scope
of the permanent variance provides McNally, their employees, potential
future applicants, other stakeholders, the public and OSHA with
necessary information regarding the work situations in which the
permanent variance applies. To the extent that McNally exceeds the
defined scope of this variance, it will be required to comply with
OSHA's standards. This permanent variance applies only to McNally, and
only to the remainder of the Cleveland Storage Tunnel Project.

Condition B: List of Abbreviations

    Condition B defines a number of abbreviations used in the permanent
variance. OSHA believes that defining these abbreviations serves to
clarify and standardize their usage, thereby enhancing the applicant's
and their employees' understanding of the conditions specified by the
permanent variance.

Condition C: Definitions

    Condition C defines a series of terms, mostly technical terms, used
in the permanent variance to standardize and clarify their meaning.
Defining these terms serves to enhance the applicant's and their
employees' understanding of the conditions specified by the permanent
variance.

Condition D: Safety and Health Practices

    This condition requires the applicant to develop and submit to OSHA
an HOM specific to the Shoreline Storage Tunnel at least six months
before using the TBM, proof that the TBM's hyperbaric chambers have
been designed, fabricated, inspected, tested marked, and stamped in
accordance with the requirements for ASME PVHO-1-2019 (or the most
recent edition of Safety Standards for Pressure Vessels for Human
Occupancy). These requirements ensure that the applicant develops
hyperbaric safety and health procedures suitable for the project.
    The submission of the HOM to OSHA, which McNally has already
completed, enables OSHA to determine that the specific safety and
health instructions and measures it specifies are appropriate to the
field conditions of the tunnel (including expected geological
conditions), conform to the conditions of the variance, and adequately
protect the safety and health of the CAWs. It also facilitates OSHA's
ability to ensure that the applicant is complying with these
instructions and measures. The requirement for proof of compliance with
ASME PVHO-1-2019 is intended

to ensure that the equipment is structurally sound and capable of
performing to protect the safety of the employees exposed to hyperbaric
pressure.
    Additionally, the condition includes a series of related hazard
prevention and control requirements and methods (e.g., decompression
tables, job hazard analysis (JHA), operations and inspections
checklists, incident investigation, and recording and notification to
OSHA of recordable hyperbaric injuries and illnesses) designed to
ensure the continued effective functioning of the hyperbaric equipment
and operating system.

Condition E: Communication

    Condition E requires the applicant to develop and implement an
effective system of information sharing and communication. Effective
information sharing and communication ensures 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 condition also requires McNally to ensure that reliable
means of emergency communications are available and maintained for
affected workers and support personnel during hyperbaric operations.
Availability of such reliable means of communications enables affected
workers and support personnel to respond quickly and effectively to
hazardous conditions or emergencies that may develop during TBM
operations.

Condition F: Worker Qualification and Training

    This condition requires the applicant to develop and implement an
effective qualification and training program for affected workers. The
condition specifies the factors that an affected worker must know to
perform safely during hyperbaric operations, including how to enter,
work in, and exit from hyperbaric conditions under both normal and
emergency conditions. Having well-trained and qualified workers
performing hyperbaric intervention work ensures that they recognize,
and respond appropriately to, hyperbaric safety and health hazards.
These qualification and training requirements enable affected workers
to cope effectively with emergencies, as well as the discomfort and
physiological effects of hyperbaric exposure, thereby preventing worker
injury, illness, and fatalities.
    Paragraph (2)(e) of this condition also requires the applicant to
provide affected workers with information they can use to contact the
appropriate healthcare professionals if they believe they are
developing hyperbaric-related health effects. This requirement provides
for early intervention and treatment of DCI and other health effects
resulting from hyperbaric exposure, thereby reducing the potential
severity of these effects.

Condition G: Inspections, Tests, and Accident Prevention

    Condition G requires the applicant to develop, implement, and
operate a program of frequent and regular inspections of the TBM's
hyperbaric equipment and support systems, and associated work areas.
This condition helps to ensure the safe operation and physical
integrity of the equipment and work areas necessary to conduct
hyperbaric operations. The condition also enhances worker safety by
reducing the risk of hyperbaric-related emergencies.
    Paragraph (3) of this condition requires the applicant to document
tests, inspections, corrective actions, and repairs involving the TBM,
and maintain these documents at the job site for the duration of the
job. This requirement provides the applicant with information needed to
schedule tests and inspections to ensure the continued safe operation
of the equipment and systems, and to determine that the actions taken
to correct defects in hyperbaric equipment and systems were
appropriate, prior to returning them to service.

Condition H: Compression and Decompression

    This condition requires the applicant to consult with a designated
medical advisor regarding special compression or decompression
procedures appropriate for any unacclimated CAW and then implement the
procedures recommended by the medical advisor. This provision ensures
that the applicant consults with the medical advisor, and involves the
medical advisor in the evaluation, development, and implementation of
compression or decompression protocols appropriate for any CAW
requiring acclimation to the hyperbaric conditions encountered during
TBM operations. Accordingly, CAWs requiring acclimation have an
opportunity to acclimate prior to exposure to these hyperbaric
conditions. OSHA believes this condition will prevent or reduce adverse
reactions among CAWs to the effects of compression or decompression
associated with the intervention work they perform in the TBM.

Condition I: Recordkeeping

    Under OSHA's existing recordkeeping requirements in 29 CFR part
1904 regarding Recording and Reporting Occupational Injuries and
Illnesses, the employer 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 McNally must comply fully with those
requirements.
    Examples of important information to include on the OSHA Form 301
Injury and Illness Incident Report (along with the corresponding
question on the form) are:
Q14
     the task performed;
     the composition of the gas mixture (e.g., air or oxygen);
     an estimate of the CAW's workload;
     the maximum working pressure;
     temperature in the work and decompression environments;
     unusual occurrences, if any, during the task or
decompression
Q15
     time of symptom onset;
     duration between decompression and onset of symptoms
Q16
     type and duration of symptoms;
     a medical summary of the illness or injury
Q17
     duration of the hyperbaric intervention;
     possible contributing factors;
     the number of prior interventions completed by the injured
or ill CAW; and the pressure to which the CAW was exposed during those
interventions.\13\
---------------------------------------------------------------------------

    \13\ See 29 CFR 1904 Recording and Reporting Occupational
Injuries and Illnesses (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9631); recordkeeping
forms and instructions (http://www.osha.gov/recordkeeping/RKform300pkg-fillable-enabled.pdf); and OSHA Recordkeeping Handbook
(http://www.osha.gov/recordkeeping/handbook/index.html).
---------------------------------------------------------------------------

    Condition I adds additional reporting responsibilities, beyond
those already required by the OSHA rule. McNally is required to
maintain records of specific factors associated with each hyperbaric
intervention. The information gathered and recorded under this
provision, in concert with the information provided under Condition J
(using OSHA's Form

301 Injury and Illness Incident Report to investigate and record
hyperbaric recordable injuries as defined by 29 CFR 1904.4, 1904.7, and
1904.8-.12), enables McNally and OSHA to assess the effectiveness of
the permanent variance in preventing DCI and other hyperbaric-related
effects.

Condition J: Notifications

    Under the notification 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 hyperbaric exposures during
TBM operations; (2) provide OSHA a copy of the hyperbaric exposures
incident investigation report (using OSHA Form 301 Injury and Illness
Incident Report) of these events within 24 hours of the incident; (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 OSHA's Office of Technical Programs
and Coordination Activities (OTPCA) and the Cleveland OSHA Area Office
within 15 working days should the applicant need to revise the HOM to
accommodate changes in its compressed-air operations that affect
McNally's ability to comply with the conditions of the modified
permanent variance; and (6) provide OTPCA and the Cleveland Ohio OSHA
Area Office, at the end of the project, with a report evaluating the
effectiveness of the decompression tables.
    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 7
calendar days of the incident (1904.29(b)(3)). This modified, more
stringent incident investigation and reporting requirement is
restricted to intervention-related hyperbaric (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 hyperbaric
incidents, and the applicant's identification and implementation of
appropriate corrective and preventive actions.
    Further, these notification requirements also enable the applicant,
its employees, and OSHA to assess the effectiveness of the modified
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 modified 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 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 modified permanent
variance to a successor company. In addition, the condition specifies
that the transfer of the modified permanent variance to a successor
company must be approved by OSHA. These requirements allow OSHA to
communicate effectively with the applicant regarding the status of the
modified permanent variance and expedite the agency's administration
and enforcement of the modified permanent variance. Stipulating that an
applicant is 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
modified permanent variance, thereby ensuring the safety of workers
involved in performing the operations covered by the modified permanent
variance.

VII. Order

    As of the effective date of this final order, OSHA is revoking the
interim order granted to the employer on September 26, 2022 and
replacing it with a permanent variance order. Note that there are not
any substantive changes in the conditions between interim order and the
final order.
    OSHA issues this final order authorizing McNally to comply with the
following conditions instead of complying with the requirements of 29
CFR 1926.803(e)(5), (f)(1), (g)(1)(iii), and (g)(1)(xvii). These
conditions are:

A. Scope

    The permanent variance applies only when McNally stops the tunnel-
boring work, pressurizes the working chamber, and the CAWs either enter
the working chamber to perform an intervention (i.e., inspection,
maintain, or repair the mechanical-excavation components), or exit the
working chamber after performing interventions.
    The permanent variance applies only to work:
    1. That occurs in conjunction with construction of the Shoreline
Storage Tunnel Project in Cleveland, Ohio, a subaqueous tunnel
constructed using advanced shielded mechanical-excavation techniques
and involving operation of an TBM;
    2. In the TBM's forward section (the working chamber) and
associated hyperbaric chambers used to pressurize and decompress
employees entering and exiting the working chamber; and
    3. Performed in compliance with all applicable provisions of 29 CFR
1926 except for the requirement specified by 29 CFR 1926.803(e)(5),
(f)(1), (g)(1)(iii), and (g)(1)(xvii).
    4. This order will remain in effect until one of the following
conditions occurs: (1) completion of the Shoreline Storage Tunnel
Project; or (2) OSHA modifies or revokes this final order in accordance
with 29 CFR 1905.13.

B. List of Abbreviations

    Abbreviations used throughout this permanent variance include the
following:

1. COAO--Cleveland, Ohio OSHA Area Office
2. CAW--Compressed-air worker
3. CFR--Code of Federal Regulations
4. DCI--Decompression Illness
5. TBM--Earth Pressure Balanced Moving Tunnel Boring Machine
6. HOM--Hyperbaric Operations and Safety Manual
7. JHA--Job hazard analysis
8. OSHA--Occupational Safety and Health Administration
9. OTPCA--Office of Technical Programs and Coordination Activities

C. Definitions

    The following definitions apply to this permanent variance. These
definitions supplement the definitions in McNally's project-specific
HOM.
    1. Affected employee or worker--an employee or worker who is
affected by the conditions of this permanent variance, or any one of
his or her authorized representatives. The term ``employee'' has the
meaning defined and used under the Occupational Safety and Health Act
of 1970 (29 U.S.C. 651 et seq.)
    2. Atmospheric pressure--the pressure of air at sea level,
generally 14.7 p.s.i.a., 1 atmosphere absolute, or 0 p.s.i.g.

    3. Compressed-air worker--an individual who is specially trained
and medically qualified to perform work in a pressurized environment
while breathing air at pressures not exceeding 55 p.s.i.g.
    4. Competent person--an individual who is capable of identifying
existing and predictable hazards in the surroundings or working
conditions that are unsanitary, hazardous, or dangerous to employees,
and who has authorization to take prompt corrective measures to
eliminate them.\14\
---------------------------------------------------------------------------

    \14\ Adapted from 29 CFR 1926.32(f).
---------------------------------------------------------------------------

    5. Decompression illness (also called decompression sickness or the
bends)--an illness caused by gas bubbles appearing in body compartments
due to a reduction in ambient pressure. Examples of symptoms of
decompression illness include (but are not limited to): joint pain
(also known as the ``bends'' for agonizing pain or the ``niggles'' for
slight pain); areas of bone destruction (termed ``dysbaric
osteonecrosis''); skin disorders (such as cutis marmorata, which causes
a pink marbling of the skin); spinal cord and brain disorders (such as
stroke, paralysis, paresthesia, and bladder dysfunction);
cardiopulmonary disorders, such as shortness of breath; and arterial
gas embolism (gas bubbles in the arteries that block blood flow).\15\
---------------------------------------------------------------------------

    \15\ See Appendix 10 of ``A Guide to the Work in Compressed Air
Regulations 1996,'' published by the United Kingdom Health and
Safety Executive and available from NIOSH at http://www.cdc.gov/niosh/docket/archive/pdfs/NIOSH-254/compReg1996.pdf.

    Note:  Health effects associated with hyperbaric intervention,
but not considered symptoms of DCI, can include: barotrauma (direct
damage to air-containing cavities in the body such as ears, sinuses,
and lungs); nitrogen narcosis (reversible alteration in
consciousness that may occur in hyperbaric environments and caused
by the anesthetic effect of certain gases at high pressure); and
oxygen toxicity (a central nervous system condition resulting from
the harmful effects of breathing molecular oxygen (O2) at
---------------------------------------------------------------------------
elevated partial pressures).

    6. Diver Medical Technician--Member of the dive team who is
experienced in first aid.
    7. Earth Pressure Balanced Moving Tunnel Boring Machine--the
machinery used to excavate the tunnel.
    8. Hot work--any activity performed in a hazardous location that
may introduce an ignition source into a potentially flammable
atmosphere.\16\
---------------------------------------------------------------------------

    \16\ Also see 29 CFR 1910.146(b).
---------------------------------------------------------------------------

    9. Hyperbaric--at a higher pressure than atmospheric pressure.
    10. Hyperbaric intervention--a term that describes the process of
stopping the TBM and preparing and executing work under hyperbaric
pressure in the working chamber for the purpose of inspecting,
replacing, or repairing cutting tools and/or the cutterhead structure.
    11. Hyperbaric Operations Manual--a detailed, project-specific
health and safety plan developed and implemented by the McNally for
working in compressed air during the Shoreline Storage Tunnel.
    12. Job hazard analysis--an evaluation of tasks or operations to
identify potential hazards and to determine the necessary controls.
    13. Man lock--an enclosed space capable of pressurization, and used
for compressing or decompressing any employee or material when either
is passing into or out of a working chamber.
    14. Medical Advisor--medical professional experience in the
physical requirements of compressed air work and the treatment of
decompression illness.
    15. Pressure--a force acting on a unit area; usually expressed as
pounds per square inch (p.s.i.).
    16. p.s.i.--pounds per square inch, a common unit of measurement of
pressure; a pressure given in p.s.i. corresponds to absolute pressure.
    17. p.s.i.a--pounds per square inch absolute, or absolute pressure,
is the sum of the atmospheric pressure and gauge pressure. At sea
level, atmospheric pressure is approximately 14.7 p.s.i. Adding 14.7 to
a pressure expressed in units of p.s.i.g. will yield the absolute
pressure, expressed as p.s.i.a.
    18. p.s.i.g.--pounds per square inch gauge, a common unit of
pressure; pressure expressed as p.s.i.g. corresponds to pressure
relative to atmospheric pressure. At sea level, atmospheric pressure is
approximately 14.7 p.s.i. Subtracting 14.7 from a pressure expressed in
units of p.s.i.a. yields the gauge pressure, expressed as p.s.i.g.
    19. Qualified person--an individual who, by possession of a
recognized degree, certificate, or professional standing, or who, by
extensive knowledge, training, and experience, successfully
demonstrates an ability to solve or resolve problems relating to the
subject matter, the work, or the project.\17\
---------------------------------------------------------------------------

    \17\ Adapted from 29 CFR 1926.32(m).
---------------------------------------------------------------------------

    20. Working chamber--an enclosed space in the TBM in which CAWs
perform interventions, and which is accessible only through a man lock.

D. Safety and Health Practices

    1. McNally must implement the project-specific HOM submitted to
OSHA as part of the variance application (see OSHA-2022-0007-0003). The
HOM provides the minimum requirements regarding expected safety and
health hazards (including anticipated geological conditions) and
hyperbaric exposures during the tunnel-construction project.
    2. McNally must demonstrate that the TBM on the project is
designed, fabricated, inspected, tested, marked and stamped in
accordance with the requirements of ASME PVHO-1.2019 (or most recent
edition of Safety Standards for Pressure Vessels for Human Occupancy)
for the TBM's hyperbaric chambers.
    3. McNally must implement the safety and health instructions
included in the manufacturer's operations manuals for the TBM, and the
safety and health instructions provided by the manufacturer for the
operation of decompression equipment.
    4. McNally must ensure that there are no exposures to pressures
greater than 55 p.s.i.g.
    5. McNally must ensure that air or oxygen as the only breathing gas
in the working chamber.
    6. McNally must follow the 1992 French Decompression Tables for
air, air-oxygen, and oxygen decompression specified in the HOM,
specifically the tables titled ``French Regulation Air Standard
Tables.''
    7. McNally must equip man-locks used by their employees with an
oxygen-delivery system as specified by the HOM. McNally is prohibited
from storing in the tunnel any oxygen or other compressed gases used in
conjunction with hyperbaric work.
    8. Workers performing hot work under hyperbaric conditions must use
flame-retardant personal protective equipment and clothing.
    9. In hyperbaric work areas, McNally must maintain an adequate
fire-suppression system approved for hyperbaric work areas.
    10. McNally must develop and implement one or more Job Hazard
Analyses (JHA) for work in the hyperbaric work areas, and review,
periodically and as necessary (e.g., after making changes to a planned
intervention that affects their operation), the contents of the JHAs
with affected employees. The JHAs must include all the job functions
that the risk

assessment \18\ indicates are essential to prevent injury or illness.
---------------------------------------------------------------------------

    \18\ See ANSI/AIHA Z10-2012, American National Standard for
Occupational Health and Safety Management Systems, for reference.
---------------------------------------------------------------------------

    11. McNally must develop a set of checklists to guide compressed-
air work and ensure that employees follow the procedures required by
this permanent variance (including all procedures required by the HOM,
which this permanent variance incorporates by reference). The
checklists must include all steps and equipment functions that the risk
assessment indicates are essential to prevent injury or illness during
compressed-air work.
    12. McNally must ensure that the safety and health provisions of
this project-specific HOM adequately protect the workers of all
contractors and subcontractors involved in hyperbaric operations for
the project to which the HOM applies.\19\
---------------------------------------------------------------------------

    \19\ See ANSI/ASSE A10.33-2011, American National Standard for
Construction and Demolition Operations--Safety and Health Program
Requirements for Multi-Employer Projects, for reference.
---------------------------------------------------------------------------

E. Communication

    1. Prior to beginning a shift, McNally must implement a system that
informs workers exposed to hyperbaric conditions of any hazardous
occurrences or conditions that might affect their safety, including
hyperbaric incidents, gas releases, equipment failures, earth or
rockslides, cave-ins, flooding, fires, or explosions.
    2. McNally must provide a power-assisted means of communication
among affected workers and support personnel in hyperbaric conditions
where unassisted voice communication is inadequate.
    (a) McNally must use an independent power supply for powered
communication systems, and these systems must operate such that use or
disruption of any one phone or signal location will not disrupt the
operation of the system from any other location.
    (b) McNally must test communication systems at the start of each
shift and as necessary thereafter to ensure proper operation.

F. Worker Qualification and Training

    McNally must:
    1. Ensure that each affected worker receives effective training on
how to safely enter, work in, exit from, and undertake emergency
evacuation or rescue from, hyperbaric conditions, and document this
training.
    2. Provide effective instruction, before beginning hyperbaric
operations, to each worker who performs work, or controls the exposure
of others, in hyperbaric conditions, and document this instruction. The
instruction must include topics such as:
    (a) The physics and physiology of hyperbaric work;
    (b) Recognition of pressure-related injuries;
    (c) Information on the causes and recognition of the signs and
symptoms associated with decompression illness, and other hyperbaric
intervention-related health effects (e.g., barotrauma, nitrogen
narcosis, and oxygen toxicity).
    (d) How to avoid discomfort during compression and decompression;
and
    (e) Information the workers can use to contact the appropriate
healthcare professionals should the workers have concerns that they may
be experiencing adverse health effects from hyperbaric exposure; and
    (f) Procedures and requirements applicable to the employee in the
project-specific HOM.
    3. Repeat the instruction specified in paragraph (2) of this
condition periodically and as necessary (e.g., after making changes to
their hyperbaric operations).
    4. When conducting training for their hyperbaric workers, make this
training available to OSHA personnel and notify OTPCA the Cleveland,
Ohio OSHA Area Office before the training takes place.

G. Inspections, Tests, and Accident Prevention

    1. McNally must initiate and maintain a program of frequent and
regular inspections of the TBM's hyperbaric equipment and support
systems (such as temperature control, illumination, ventilation, and
fire-prevention and fire-suppression systems), and hyperbaric work
areas, as required under 29 CFR 1926.20(b)(2), including:
    (a) Developing a set of checklists to be used by a competent person
in conducting weekly inspections of hyperbaric equipment and work
areas; and
    (b) Ensuring that a competent person conducts daily visual checks,
as well as weekly inspections of the TBM.
    2. Remove from service any equipment that constitutes a safety
hazard until it corrects the hazardous condition and has the correction
approved by a qualified person.
    3. McNally must maintain records of all tests and inspections of
the TBM, as well as associated corrective actions and repairs, at the
job site for the duration of the job.

H. Compression and Decompression

    McNally must consult with their attending physician concerning the
need for special compression or decompression exposures appropriate for
CAWs not acclimated to hyperbaric exposure.

I. Recordkeeping

    In addition to completing OSHA Form 301 Injury and Illness Incident
Report and OSHA Form 300 Log of Work-Related Injuries and Illnesses,
McNally must maintain records of:
    1. The date, times (e.g., time compression started, time spent
compressing, time performing intervention, time spent decompressing),
and pressure for each hyperbaric intervention.
    2. The names of all supervisors and DMTs involved for each
intervention.
    3. The name of each individual worker exposed to hyperbaric
pressure and the decompression protocols and results for each worker.
    4. The total number of interventions and the amount of hyperbaric
work time at each pressure.
    5. The results of the post-intervention physical assessment of each
CAW for signs and symptoms of decompression illness, barotrauma,
nitrogen narcosis, oxygen toxicity or other health effects associated
with work in compressed air for each hyperbaric intervention.

J. Notifications

    1. To assist OSHA in administering the conditions specified herein,
the McNally must:
    (a) Notify the OTPCA and the Cleveland Ohio OSHA Area Office of any
recordable injury, illness, or fatality (by submitting the completed
OSHA's Form 301 Injury and Illness Incident Report form) \20\ resulting
from exposure of an employee to hyperbaric conditions, including those
exposures that do not require recompression treatment (e.g., nitrogen
narcosis, oxygen toxicity, barotrauma), but still meet the recordable
injury or illness criteria of 29 CFR 1904. The employer shall provide
the notification within 8 hours of the incident or 8 hours after
becoming aware of a recordable injury, illness, or fatality, and submit
a copy of the incident investigation (OSHA's Form 301 Injury and
Illness Injury Reporting Form) within 24 hours of the incident or 24
hours after becoming aware of a recordable injury, illness, or
fatality. In addition to the information

required by the OSHA's Form 301 Injury and Illness Injury Reporting
Form, the incident-investigation report must include a root-cause
determination, and the preventive and corrective actions identified and
implemented.
---------------------------------------------------------------------------

    \20\ See 29 CFR 1904 (Recording and Reporting Occupational
Injuries and Illnesses) (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9631); recordkeeping
forms and instructions (http://www.osha.gov/recordkeeping/RKform300pkg-fillable-enabled.pdf); and the OSHA Recordkeeping
Handbook (http://www.osha.gov/recordkeeping/handbook/index.html).
---------------------------------------------------------------------------

    (b) Provide certification within 15 days of the incident that the
employer informed affected workers of the incident and the results of
the incident investigation (including the root-cause determination and
preventive and corrective actions identified and implemented).
    (c) Notify the OTPCA and the Cleveland Ohio OSHA Area Office within
15 working days in writing of any change in the compressed-air
operations that affects the employer's ability to comply with the
conditions specified herein.
    (d) Upon completion of the Shoreline Storage Tunnel, evaluate the
effectiveness of the decompression tables used throughout the project,
and provide a written report of this evaluation to the OTPCA and the
Cleveland Ohio OSHA Area Office.

    Note: The evaluation report is to contain summaries of: (1) the
number, dates, durations, and pressures of the hyperbaric
interventions completed; (2) decompression protocols implemented
(including composition of gas mixtures (air and/or oxygen), and the
results achieved; (3) the total number of interventions and the
number of hyperbaric incidents (decompression illnesses and/or
health effects associated with hyperbaric interventions as recorded
on OSHA's Form 301 Injury and Illness Incident Report and OSHA's
Form 300 Log of Work-Related Injuries and Illnesses, and relevant
medical diagnoses and treating physicians' opinions); and (4) root
causes of any hyperbaric incidents, and preventive and corrective
actions identified and implemented.

    (e) To assist OSHA in administering the conditions specified
herein, inform the OTPCA and the Cleveland Ohio OSHA Area Office as
soon as possible after it has knowledge that it will:
    i. Cease to do business;
    ii. Change the location and address of the main office for managing
the tunneling operations specified herein; or
    iii. Transfer the operations specified herein to a successor
company.
    (f) Notify all affected employees of this permanent variance by the
same means required to inform them of the application for a variance.
    (g) This permanent variance cannot be transferred to a successor
company without OSHA approval.
    OSHA hereby grants a permanent variance to McNally to the
provisions of 29 CFR 1926.803 outlined in this notice.

VIII. 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, on March 6, 2023.
James S. Frederick,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2023-04883 Filed 3-9-23; 8:45 am]
BILLING CODE 4510-26-P


hazard warnings required by paragraph (g) of this section and, if
applicable, by Sec.  1040.11, to be affixed to the laser product or
provided with the laser product.
    (i) Modification of certified laser products. The modification of a
laser product previously certified under Sec.  1010.2 of this
subchapter by any person engaged in the business of manufacturing,
assembling, or modifying laser products constitutes manufacturing under
the Federal Food, Drug, and Cosmetic Act if the modification affects
any aspect of the product's performance or intended function(s) for
which this section or Sec.  1040.11 have an applicable requirement. The
person who performs such modification must recertify and re-identify
the product in accordance with the provisions of Sec. Sec.  1010.2 and
1010.3 of this subchapter.

0
10. Section 1040.11 is revised to read as follows:

Sec.  1040.11  Specific purpose laser products.

    (a) Medical laser products. Each medical laser product must comply
with all of the applicable requirements of Sec.  1040.10 for laser
products of its class. In addition, such products must comply with the
following specified clauses and subclauses of IEC 60601-2-22:2007 and
IEC 60825-1:2007 (incorporated by reference; see Sec.  1040.5).
    (1) Instructions for use, subclause <IP_ADDRESS> of IEC 60601-2-
22:2007;
    (2) Protection against unwanted and excessive radiation hazards,
clause 201.10 of IEC 60601-2-22:2007, except for:
    (i) Applicability to medical LED products, and
    (ii) Emission indicator, subclause 201.10.4(e) of IEC 60601-2-
22:2007, for which subclause 4.7 of IEC 60825-1:2007 is applicable;
    (3) Indication of laser output, subclause <IP_ADDRESS> of IEC
60601-2-22:2007;
    (4) Indication of parameters relevant to safety, subclause
<IP_ADDRESS> of IEC 60601-2-22:2007;
    (5) Calibration procedures, subclause <IP_ADDRESS>.101, 4th dash of
IEC 60601-2-22:2007;
    (6) Incorrect output, subclause <IP_ADDRESS> of IEC 60601-2-22:2007;
and
    (7) Emergency laser stop, subclause <IP_ADDRESS>.101 of IEC 60601-2-
22:2007.
    (b) Surveying, leveling, and alignment laser products. Each
surveying, leveling, or alignment laser product must comply with all of
the applicable requirements of Sec.  1040.10 for a Class 1, 2, or 3R
laser product and must not permit human access to laser radiation in
excess of the accessible emission limits of Class 3R.
    (c) Demonstration laser products. Each demonstration laser product
must comply with all of the applicable requirements of Sec.  1040.10
for a Class 1, 2, or 3R laser product and must not permit human access
to laser radiation in excess of the accessible emission limits of Class
3R.
    (d) Children's toy laser products. Each children's toy laser
product must comply with all of the applicable requirements of Sec.
1040.10 for a Class 1 laser product and must not permit human access to
laser radiation in excess of the accessible emission limits of Class 1
under any conditions of operation, maintenance, service, or failure. If
a children's toy laser product also meets the definition of a
demonstration laser product or surveying, leveling, and alignment laser
product, then the classification limit for children's toy laser product
applies.
    (e) Laser products procured by the U.S. Department of Defense
(DOD). Laser products procured by the DOD for use in combat, combat
training, or that are classified in the interest of national security
are exempt from the other provisions of this section, and from
Sec. Sec.  1002.10, 1002.11, 1002.13 of this subchapter, and those
provisions of Sec.  1040.10 that are determined not to be appropriate
for the intended military application. In order for this exemption to
apply to a specific laser product, the manufacturer of such product
shall obtain a letter from an authorized DOD procuring Agency that
applies the exemption to the products. The exemption letter must be
obtained prior to sale and must be retained for subsequent sales of the
exempted products under the specific contract to any DOD Agency.

    Dated: June 18, 2013.
Leslie Kux,
Assistant Commissioner for Policy.
[FR Doc. 2013-14846 Filed 6-21-13; 8:45 am]
BILLING CODE 4160-01-P


[Federal Register Volume 78, Number 248 (Thursday, December 26, 2013)]
[Notices]
[Page 78424]
[FR Doc No: 2013-30763]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71142; File No. TP 14-03]

Order Granting a Limited Exemption From Rule 102(a) of Regulation
M to Certain Business Development Companies Pursuant to Rule 102(e) of
Regulation M

December 19, 2013.
    By letter dated December 19, 2013 (``letter''), as supplemented by
conversations with the staff of the Division of Trading and Markets
(``Staff''), counsel for C[Imacr]ON Investment Corporation
(``Company''), an unlisted business development company (``BDC''),\1\
requested on behalf of the Company that the Securities and Exchange
Commission (``Commission'') issue an exemption from Rule 102 of
Regulation M.\2\ Specifically, the letter requests that the Commission
exempt the Company from the requirements of Rule 102(a) so that the
Company may conduct a periodic share repurchase program during the
course of the continuous offering of shares of the Company
(``Shares'').
---------------------------------------------------------------------------

    \1\ See Section 2(a)(48) of the Investment Company Act of 1940
(``1940 Act'') (defining ``business development company'').
    \2\ 17 CFR 242.102.
---------------------------------------------------------------------------

    Rule 102(a) of Regulation M specifically prohibits issuers, selling
security holders, and any of their affiliated purchasers from directly
or indirectly bidding for, purchasing, or attempting to induce another
person to bid for or purchase a ``covered security'' until the
applicable restricted period has ended. As a consequence of the
continuous offering of the Shares, the Company will be engaged in a
distribution of the Shares pursuant to Rule 102. As a result, bids for
or purchases of Shares or any reference security by the Company or any
affiliated purchaser of the Company are prohibited during the
restricted period specified in Rule 102, unless specifically excepted
by or exempted from Rule 102. As the Company seeks to engage in
periodic repurchases of Shares during the applicable restricted period,
absent an exception these repurchases would violate Rule 102(a).
    The request is similar to a number of requests from unlisted BDCs
for conditional exemptive relief from Rule 102 that were granted
pursuant to delegated authority.\3\ Like other BDC repurchase programs
that have been given exemptive relief from Rule 102, the repurchase
program is designed to provide a limited source of liquidity for the
Company's shareholders as there is no trading market for the Shares. In
addition, like other BDC repurchase programs, the repurchase program is
fully disclosed to shareholders in the prospectus so the existence of
the repurchase program should be known by investors, thus minimizing
potential manipulative effects. The relief requested is also similar to
that extended to unlisted real estate investment trusts to permit
similar repurchase programs.\4\ Based on our experience with these
prior requests, we believe that it is appropriate to extend exemptive
relief for all BDC repurchase programs that meet the same criteria.
Accordingly, we find that it is appropriate in the public interest and
is consistent with the protection of investors to grant a conditional
exemption from Rule 102(a) to permit any unlisted company, including
the Company, that has elected to be treated as a BDC under the 1940 Act
to engage in periodic repurchases of their shares during the applicable
restricted period, subject to the conditions described below.
---------------------------------------------------------------------------

    \3\ See, e.g., Order Granting Business Development Corporation
of America a Limited Exemption from Rule 102(a) of Regulation M
Pursuant to Rule 102(e), Exchange Act Rel. No. 67620 (August 8,
2012); Order Granting FS Investment Corporation II a Limited
Exemption from Rule 102(a) of Regulation M Pursuant to Rule 102(e),
Exchange Act Rel. No. 67163 (June 7, 2012); and Letter from
Josephine J. Tao, Assistant Director, to Steven B. Boehm, Sutherland
Asbill and Brennan LLP regarding FS Investment Corporation (April
20, 2009).
    \4\ Letter from James A. Brigagliano, Associate Director, to
Dennis O. Garris, Alston & Bird LLP regarding Class Relief for REIT
Share Redemption Programs (October 22, 2007).
---------------------------------------------------------------------------

    Pursuant to the conditions to this exemptive relief, any BDC
seeking to rely on this exemption must terminate their repurchase
program should a secondary trading market for its common stock develop.
As a result, the repurchase programs being given exemptive relief in
this order should not have a manipulative effect on the applicable
distribution. This exemptive relief is further conditioned on the
repurchase program purchasing shares of common stock at a price that
does not exceed the then current public offering price of such
securities. This should help ensure that the repurchase programs being
extended relief in this order do not have a manipulative effect on the
price of such distributions as the purchases should not improve the
offering price.

Conclusion

    It is hereby ordered, pursuant to Rule 102(e), that any unlisted
company that has elected to be treated as a BDC under the 1940 Act is
exempt from Rule 102(a) for the limited purpose of engaging in periodic
repurchases of their shares during the applicable restricted period,
subject to the following conditions:
     Any company relying upon this exemption shall terminate
its repurchase program if a secondary market for the shares being
repurchased develops; and
     Any repurchase pursuant to this exemption will be made at
a price that does not exceed the then current public offering price for
such securities.
    This exemptive relief is subject to modification or revocation at
any time the Commission determines that such action is necessary or
appropriate in furtherance of the purposes of the Exchange Act. In
addition, persons relying on this exemption are directed to the anti-
fraud and anti-manipulation provisions of the federal securities laws,
particularly Section 10(b) of the Exchange Act, and Rule 10b-5
thereunder. Responsibility for compliance with these and any other
applicable provisions of the federal securities laws must rest with the
persons relying on this exemption. This order should not be considered
a view with respect to any other question that the transactions may
raise, including, but not limited to the adequacy of the disclosure
concerning, and the applicability of other federal or state laws to,
such transactions.
---------------------------------------------------------------------------

    \5\ 17 CFR 200.30-3(a)(6).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\5\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-30763 Filed 12-24-13; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 26 (Wednesday, February 8, 2012)]
[Rules and Regulations]
[Page 6463]
[FR Doc No: 2012-2764]

========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.

========================================================================

Federal Register / Vol. 77, No. 26 / Wednesday, February 8, 2012 /
Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2011-0881; Airspace Docket No. 11-AAL-18]

Amendment of Class E Airspace; Kwigillingok, AK

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule, correction.

-----------------------------------------------------------------------

SUMMARY: This action corrects a final rule published in the Federal
Register of January 3, 2012 that amends Class E airspace at
Kwigillingok Airport, Kwigillingok, AK. In that rule, errors were made
in the geographic coordinates and legal description for Kwigillingok
Airport. This action corrects these errors.

DATES: Effective Date: 0901 UTC, April 5, 2012. The Director of the
Federal Register approves this incorporation by reference action under
1 CFR Part 51, subject to the annual revision of FAA Order 7400.9 and
publication of conforming amendments.

FOR FURTHER INFORMATION CONTACT: Jeanette Roller, Federal Aviation
Administration, Operations Support Group, Western Service Center, 1601
Lind Avenue SW., Renton, WA 98057; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

History

    On January 3, 2012, a final rule for Airspace Docket No. 11-AAL-18,
FAA Docket No. FAA-2011-0881 was published in the Federal Register (77
FR 6), amending controlled airspace at Kwigillingok Airport, AK.
Subsequent to publication, an error was found in the latitude
coordinate for Kwigillingok Airport, and the radius referencing Class E
700 foot airspace. This action corrects these errors.

Correction to Final Rule

    Accordingly, pursuant to the authority delegated to me, the legal
description as published in the Federal Register on January 3, 2012 (77
FR 6), (FR Doc. 2011-33566), is corrected as follows:

Sec.  71.1  [Amended]

AAL AK E5 Kwigillingok, AK [Corrected]

0
On page 7, column 2, and line 50 of the legal description, remove
``Lat. 59[deg]32'35'' N.,'' and insert ``Lat. 59[deg]52'35'' N.,'' and
on line 52 remove ``within a 6.5-mile radius * * *'' and insert
``within a 6.6-mile radius * * *''.

    Issued in Seattle, Washington, on January 27, 2012.
Robert Henry,
Acting Manager, Operations Support Group, Western Service Center.
[FR Doc. 2012-2764 Filed 2-7-12; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: May 22, 2009 (Volume 74, Number 98)]
[Notices]
[Page 24074]
[DOCID:fr22my09-114]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-1999-5578; FMCSA-2000-8398; FMCSA-2002-13411; FMCSA-
2004-17984; FMCSA-2004-19477; FMCSA-2005-20027; FMCSA-2006-26066;
FMCSA-2006-25246; FMCSA-2007-27333]

Qualification of Drivers; Exemption Renewals; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

-----------------------------------------------------------------------

SUMMARY: FMCSA previously announced its decision to renew the
exemptions from the vision requirement in the Federal Motor Carrier
Safety Regulations for 22 individuals. FMCSA has statutory authority to
exempt individuals from the vision requirement if the exemptions
granted will not compromise safety. The Agency has concluded that
granting these exemptions will provide a level of safety that will be
equivalent to, or greater than, the level of safety maintained without
the exemptions for these commercial motor vehicle (CMV) drivers.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Director, Medical
Programs,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA, Department of
Transportation, 1200 New Jersey Avenue, SE., Room W64-224, Washington,
DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m. Monday through
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    You may see all the comments online through the Federal Document
Management System (FDMS) at http://www.regulations.gov.

Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
for a 2-year period if it finds ``such exemption would likely achieve a
level of safety that is equivalent to, or greater than, the level that
would be achieved absent such exemption.'' The statute also allows the
Agency to renew exemptions at the end of the 2-year period. The comment
period ended on May 6, 2009.

Discussion of Comments

    FMCSA received no comments in this proceeding.

Conclusion

    The Agency has not received any adverse evidence on any of these
drivers that indicates that safety is being compromised. Based upon its
evaluation of the 22 renewal applications, FMCSA renews the Federal
vision exemptions for Rex A. Botsford, Roger C. Carson, Robert A.
Casson, Gregory L. Cooper, Kenneth D. Craig, Christopher A. Deadman,
Jerald O. Edwards, David R. Gross, George Harris, Francisco J. Jimenez,
Kenneth C. Keil, Paul R. Kerpsie, Melvin A. Kleman, Roosevelt Lawson,
Emanuel N. Malone, Roberto E. Martinez, Richard W. Mullenix, George K.
Sizemore, James A. Strickland, Clarence L. Swann, Jr., Kerry W.
VanStory and Manuel A. Vargas.
    In accordance with 49 U.S.C. 31136(e) and 31315, each renewal
exemption will be valid for 2 years unless revoked earlier by FMCSA.
The exemption will be revoked if: (1) The person fails to comply with
the terms and conditions of the exemption; (2) the exemption has
resulted in a lower level of safety than was maintained before it was
granted; or (3) continuation of the exemption would not be consistent
with the goals and objectives of 49 U.S.C. 31136 and 31315.

    Issued on May 15, 2009.
Larry W. Minor,
Associate Administrator for Policy and Program Development.
[FR Doc. E9-12055 Filed 5-21-09; 8:45 am]

BILLING CODE 4910-EX-P