[Federal Register Volume 79, Number 4 (Tuesday, January 7, 2014)]
[Notices]
[Pages 844-853]
[FR Doc No: 2014-00008]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2012-0036]

Tully/OHL USA Joint Venture: Application for Permanent Variance
and Interim Order; Grant of Interim Order; Request for Comments

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

ACTION: Notice of application for a permanent variance and interim
order; grant of interim order; request for comments.

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SUMMARY: This notice announces the application of Tully/OHL USA Joint
Venture (``Tully'' or ``the applicant'') for a permanent variance from
the provisions of the Occupational Safety and Health Administration
(``OSHA'' or ``the Agency'') construction standard that regulate work
in compressed air. In addition, the applicant requested an interim
order based on the alternate conditions specified by its variance
application. Based on its review of the application, including the
alternate conditions, OSHA concludes that an interim order will provide
Tully's employees with the requisite protection while OSHA considers
Tully's application for a permanent variance. Therefore, OSHA is
granting an interim order to the applicant subject to the conditions
described in this notice. OSHA also invites the public to submit
comments on the variance application.

DATES: Submit comments, information, documents in response to this
notice, and requests for a hearing on or before February 6, 2014. The
interim order specified by this notice becomes effective on January 7,
2014.

ADDRESSES: Submit comments by any of the following methods:
    Electronically: Tender submissions electronically to the Federal
eRulemaking Portal at http://www.regulations.gov. Follow the
instructions online for making electronic submissions.
    Facsimile: If submissions, including attachments, are not longer
than ten (10) pages, commenters may fax them to the OSHA Docket Office
at<PHONE_NUMBER>.
    Regular or express mail, hand delivery, or messenger (courier)
service: Tender submissions to the OSHA Docket Office, Docket No. OSHA-
2012-0036, Technical Data Center, U.S. Department of Labor, 200
Constitution Avenue NW., Room N-2625, Washington, DC 20210; telephone:
(202) 693-2350 (TTY number:<PHONE_NUMBER>). Note that security
procedures may result in significant delays in receiving submissions
sent by regular mail. Contact the OSHA Docket Office for information
about security procedures concerning delivery of materials by regular
or express mail, hand delivery, or messenger (courier) service. The
hours of operation for the OSHA Docket Office are 8:15 a.m.-4:45 p.m.,
e.t.
    Instructions: All submissions must include the Agency name and the
OSHA docket number (OSHA-2012-0036). OSHA places comments and other
materials, including any personal information, in the public docket
without revision, and these materials may be available online at http://www.regulations.gov. Therefore, the Agency cautions commenters about
submitting statements they do not want made available to the public, or
submitting comments that contain personal information (either about
themselves or others) such as Social Security numbers, birth dates, and
medical data.
    Docket: To read or download submissions or other material in the
docket, go to http://www.regulations.gov or to the OSHA Docket Office
at the address above. The http://www.regulations.gov index lists all
documents in the docket; however, some information (e.g., copyrighted
material) is not publicly available to read or download through this
Web site. All submissions, including copyrighted material, are
available for inspection and copying at the OSHA Docket Office.

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, 200 Constitution Avenue
NW., Room N-3647, Washington, DC 20210; telephone:<PHONE_NUMBER>;
email<EMAIL_ADDRESS>    General and technical information: Contact David Johnson, 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, 200 Constitution
Avenue NW., Room N-3655, Washington, DC 20210; telephone: (202) 693-
2110; email<EMAIL_ADDRESS>OSHA's Web page includes
information about the Variance Program (see http://www.osha.gov/dts/otpca/variances/index.html).

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, as well as news releases and other
relevant information, also are available at OSHA's Web page at http://www.osha.gov.
    Hearing requests. According to 29 CFR 1905.15, hearing requests
must include: (1) A short and plain statement detailing how the
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 adduced in
support of each denial; and (3) any views or arguments on any issue of
fact or law presented in the variance application.

I. Notice of Application

    On July 12, 2012, Tully/OHL USA Joint Venture (hereafter, ``Tully''
or ``the applicant''), 355 Front Street, Construction Site, Staten
Island, NY 10304, submitted 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)'') an
application for a permanent variance from several provisions of the
OSHA standard that regulates work in compressed air at 29 CFR 1926.803,
as well as a request for an interim order

pending OSHA's decision on the application for a variance (Ex. OSHA-
2012-0036-0001). Specifically, Tully seeks 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).
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    \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 Sec.  1926.803(e)(5) as 50 p.s.i.g., consistent
with the terminology in Appendix A, Table 1 of subpart S.
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    Tully is a contractor that works on complex tunnel projects using
recently developed equipment and procedures for soft-ground tunneling.
Tully workers engage in the construction of subaqueous tunnels using
advanced shielded mechanical excavation techniques in conjunction with
an Earth Pressure Balanced Tunnel Boring Machine (EPBTBM).
    According to its application, Tully is currently the managing
partner of Tully/OHL USA Joint Venture, the general contractor for the
New York Economic Development Corporation's New York Siphon Tunnel
Project. The project consists of a 12-foot diameter tunnel beneath New
York Harbor between Staten Island and Brooklyn. Tully will bore the
tunnel below the water table through soft soils consisting of clay,
silt, and sand. Tully would employ specially trained personnel for the
construction of the tunnel, and states that this construction will use
shielded mechanical-excavation techniques. Tully asserts that its
workers would perform hyperbaric interventions at pressures greater
than 50 p.s.i.g. in the excavation chamber of the EPBTBM; these
interventions consist of conducting inspections and maintenance work on
the cutter-head structure and cutting tools of the EPBTBM.
    Tully asserts that innovations in tunnel excavation, specifically
with EPBTBMs, have, in most cases, eliminated the need to pressurize
the entire tunnel. This technology negates the requirement that all
members of a tunnel-excavation crew work in compressed air while
excavating the tunnel. These advances in technology modified
substantially 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. Such advances reduce the number of workers exposed, and the
total duration of exposure, to hyperbaric pressure during tunnel
construction.
    Using shielded mechanical-excavation techniques, in conjunction
with precast concrete tunnel liners and backfill grout, EPBTBMs 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 EPBTBM. Interventions in
the working chamber (the pressurized portion of the EPBTBM) take place
only after halting tunnel excavation and preparing the machine and crew
for an intervention. Interventions occur to inspect or maintain the
mechanical-excavation components located in the working chamber.
Maintenance conducted in the working chamber includes changing
replaceable cutting tools and disposable wear bars, and, in rare cases,
repairing structural damage to the cutter head.
    In addition to innovations in tunnel-excavation methods, Tully
asserts that innovations in hyperbaric medicine and technology improve
the safety of decompression from hyperbaric exposures. According to
Tully, the 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 (29
CFR Part 1926, subpart S, Appendix A decompression tables). These
hyperbaric exposures are possible due to advances in technology, a
better understanding of hyperbaric medicine, and the development of a
project-specific Hyperbaric Operations Manual (HOM) 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.
    OSHA initiated a preliminary technical review of the Tully's
variance application and developed a set of follow-up questions that it
sent to Tully on August 29, 2012 (Ex. OSHA-2012-0036-0002). On October
9, 2012, Tully submitted its response and a request for an interim
order (Ex. OSHA-2012-0036-0003). In its response to OSHA's follow-up
questions, Tully indicated that the maximum pressure to which it is
likely to expose workers during interventions for the New York Economic
Development Corporation's New York Siphon Tunnel Project is 58 p.s.i.g.
Therefore, to work effectively on this project, Tully must perform
hyperbaric interventions in compressed air at pressures higher than the
maximum pressure specified by in the existing OSHA standard, 29 CFR
1926.803(e)(5), which states: ``No employee shall be subjected to
pressure exceeding 50 p.s.i.g. except in emergency'' (see footnote 1 in
this notice).

II. The Variance Application

A. Background

    The applicant asserts that the advances in tunnel excavation
technology described in Section I of this notice modified significantly
the equipment and methods used by contractors to construct subaqueous
tunnels, thereby making several provisions of OSHA's compressed-air
standard for construction at 29 CFR 1926.803 inappropriate for this
type of work. These advances reduce both the number of employees
exposed, and the total duration of exposure, to the hyperbaric
conditions associated with tunnel construction.
    Using shielded mechanical-excavation techniques, in conjunction
with pre-cast concrete tunnel liners and backfill grout, EPBTBMs
provide methods to achieve the face pressures required to maintain a
stabilized tunnel face, through various geologies, while isolating that
pressure to the forward section (working or excavation chamber) of the
EPBTBM.
    Interventions involving the working chamber (the pressurized
chamber at the head of the EPBTBM) would take place only after the
applicant halts tunnel excavation and prepares the machine and crew for
an intervention. Interventions occur to inspect or maintain the
mechanical-excavation components located in the forward portion of the
working chamber. Maintenance conducted in the forward portion of the
working chamber includes changing replaceable cutting tools, disposable
wear bars, and, in rare cases, repairs to the cutter head due to
structural damage.
    In addition to innovations in tunnel-excavation methods, research
conducted after OSHA published its compressed-air standard for
construction in 1971 resulted in advances in hyperbaric medicine. In
this regard, the applicant asserts that the use of decompression
protocols incorporating oxygen is more efficient, effective, and safer
for tunnel

workers than compliance with the existing OSHA standard (29 CFR Part
1926, subpart S, Appendix A decompression tables). According to the
applicant, contractors routinely and safely expose employees performing
interventions in the working chamber of EPBTBMs to hyperbaric pressures
up to 75 p.s.i.g., which is 50% higher than maximum pressure specified
by the existing OSHA standard (see 29 CFR 1926.803(e)(5)). The
applicant asserts that these hyperbaric exposures are possible because
of advances in hyperbaric technology, a better understanding of
hyperbaric medicine, and the development of a project-specific HOM
(Hyperbaric Operations Manual) that requires specialized medical
support and hyperbaric supervision to provide assistance to a team of
specially trained man-lock attendants and hyperbaric workers.
    The applicant contends that a permanent variance would provide its
workers with a place of employment that is at least as safe and
healthful as they would obtain under the existing provisions of OSHA's
compressed-air standard for construction. The applicant certifies that
it provided employee representatives of affected workers \2\ with a
copy of the variance application. The applicant also certifies that it
notified its workers of the variance application by posting, at
prominent locations where it normally posts workplace notices, a
summary of the application and information specifying where the workers
can examine a copy of the application. In addition, the applicant
informed its 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.
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    \2\ See the definition of ``Affected employee or worker'' below
in section V. D of this notice.
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B. 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 in This
Notice)

    The applicant states that it may perform hyperbaric interventions
at pressures greater than 50 p.s.i.g. in the working chamber of the
EPBTBM; this pressure exceeds the pressure limit of 50 p.s.i.g.
specified for nonemergency purposes by 29 CFR 1926.803(e)(5). The
EPBTBM 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.
    EPBTBMs are capable of maintaining pressure at the tunnel face, and
stabilizing existing geological conditions, through the controlled use
of propel cylinders, 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 EPBTBM is the working chamber, and this
chamber is the only pressurized segment of the EPBTBM. 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.
    The applicant 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 most of the hyperbaric interventions will be around 14.7
p.s.i.g. Nevertheless, the applicant maintains that they may have to
perform interventions at pressures up to 58 p.s.i.g.
    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.
    The applicant developed and proposes to use a project-specific HOM
(Ex. OSHA-2012-0036-0004) that describes in detail the hyperbaric
procedures and required medical examinations used during the tunnel-
construction project. The HOM is project specific, and discusses
standard operating procedures and 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 sickness and diving-related illnesses and
injuries. The attendants are under the direct supervision of the
hyperbaric supervisor 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) will be
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.g.

C. 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 Part 1926, subpart S (see 29 CFR 1926.803(f)(1)). As an
alternative to the OSHA decompression tables, the applicant proposes to
use newer decompression schedules that supplement breathing air used
during decompression with pure oxygen. The applicant asserts that these
decompression protocols are safer for tunnel workers than the
decompression protocols specified in Appendix A of 29 CFR Part 1926,
subpart S. Accordingly, the applicant proposes to use the 1992 French
Decompression Tables to decompress CAWs after they exit the hyperbaric
conditions in the working chamber.
    Depending on the maximum working pressure and exposure times, the
1992 French Decompression Tables provide for air decompression with or
without oxygen. Tully asserts that oxygen decompression has many
benefits, including reducing decompression time by about 33 percent,
and significantly lowering the rate of decompression illness (DCI),
compared to the air-decompression tables in Appendix A of 29 CFR Part
1926, subpart S. In addition, the 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 (competent
person), trained in hyperbaric operations, procedures, and safety, will
directly oversee all hyperbaric interventions, and ensure that staff
follow the procedures delineated in the HOM or by the attending
physician.
    The applicant asserts that at higher hyperbaric pressures,
decompression times exceed 75 minutes. The HOM establishes protocols
and procedures that provide the basis for alternate means of protection
for CAWs under these conditions. Accordingly, based on these protocols
and procedures, the applicant requests to use the 1992 French
Decompression Tables for hyperbaric interventions up to 58 p.s.i.g. for
the New York Siphon Tunnel Project. The applicant will follow the
decompression procedures described in the project-specific HOM during
these interventions.

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

    According to the applicant, breathing air under hyperbaric
conditions increases the amount of nitrogen gas dissolved 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 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 8 below 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
OSHA decompression requirements of 29 CFR 1926.803, which specify the
use of automatically regulated continuous decompression (see footnotes
5 through 10 below for references to these studies).\3\ In addition,
the applicant asserts that staged decompression is at least as
effective as an automatic controller in regulating the decompression
process because:
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    \3\ In the study cited in footnote 6, starting at page 338, Dr.
Eric Kindwall notes that the use of automatically regulated
continuous decompression in the Washington State safety standards
for compressed-air work (from which OSHA derived its decompression
tables) was at the insistence of contractors and the union, and
against the advice of the expert who calculated the decompression
table, who recommended using staged decompression. Dr. Kindwall then
states, ``Continuous decompression is inefficient and wasteful. For
example, if the last stage from 4 psig . . . to the surface took 1
h, at least half the time is spent at pressures less than 2 psig . .
., which provides less and less meaningful bubble suppression. . .
.'' In addition, the report referenced in footnote 5 under the
section titled ``Background on the Need for Interim Decompression
Tables'' 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.''
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    A. A hyperbaric supervisor (a competent person experienced and
trained in hyperbaric operations, procedures, and safety) 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; and
    B. The use of the 1992 French Decompression Tables for staged
decompression offers an equal or better level of management and control
over the decompression process than an automatic controller and results
in lower occurrences of DCI.
    Accordingly, the applicant 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 will conduct 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.

E. 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 when total
decompression time exceeds 75 minutes (see 29 CFR
1926.803(g)(1)(xvii)). Another provision of OSHA's compressed-air
standard calls for locating the special decompression chamber adjacent
to the man lock on the atmospheric pressure side of the tunnel bulkhead
(see 29 CFR 1926.803(g)(2)(vii)). However, since only the working
chamber of the EPBTBM is under pressure, and 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) are
of sufficient size to accommodate the exposed workers. In addition,
available space in the EPBTBM does not allow for an additional special
decompression lock. Again, the applicant uses the man locks, each of
which will adequately accommodate 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. This
alternative will enable CAWs to move about and flex their joints to
prevent neuromuscular problems during decompression.

F. Multi-State Variance

    Tully only applied for an interim order and variance for one site,
the New York Siphon Tunnel Project, so any variance OSHA grants Tully
will have effect only in the State of New York. While the State of New
York has an OSHA-approved safety and health program, that program
covers only public-sector employers and not private-sector employers
such as Tully; therefore, Federal OSHA continues to cover private-
sector employers in the State of New York.

III. Description of the Conditions Specified by the Interim Order and
the Application for a Permanent Variance

    This section describes the conditions that comprise the alternative
means of compliance with 29 CFR 1926.803(e)(5), (f)(1), (g)(1)(iii),
and (g)(1)(xvii). These conditions form the basis of the interim

order and Tully's application for a permanent variance.\4\
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    \4\ In these conditions, the present tense form of the verb
(e.g., ``must'') pertains to the interim order, while the future
conditional form of the verb (e.g., ``would'') pertains to the
application for a permanent variance (designated as ``permanent
variance'').
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Condition A: Scope

    The scope of the interim order/permanent variance limits/would
limit coverage of the conditions of the interim order/permanent
variance to the work situations specified under this condition. Clearly
defining the scope of the interim order/permanent variance provides
Tully, Tully's employees, and OSHA with necessary information regarding
the work situations in which the interim order/permanent variance
applies/would apply.

Condition B: Application

    This condition specifies the circumstances under which the interim
order/permanent variance is/would be in effect, notably only for
hyperbaric work performed during interventions. The condition places
clear limits on the circumstances under which the applicant can expose
its employees to hyperbaric pressure.

Condition C: List of Abbreviations

    Condition C defines/would define a number of abbreviations used in
the interim order/permanent variance. OSHA believes that defining these
abbreviations will serve to clarify and standardize their usage,
thereby enhancing the applicant's and its employees' understanding of
the conditions specified by the interim order/permanent variance.

Condition D: Definitions

    The condition defines/would define a series of terms, mostly
technical terms, used in the interim order/permanent variance to
standardize and clarify their meaning. Defining these terms will
enhance the applicant's and its employees' understanding of the
conditions specified by the interim order/permanent variance.

Condition E: Safety and Health Practices

    This condition requires/would require the applicant to develop and
submit to OSHA a project-specific HOM at least six months before using
the EPBTBM for tunneling operations. This requirement ensures/would
ensure that the applicant develops hyperbaric safety and health
procedures suitable for each specific project. The HOM enables/would
enable OSHA to determine that the specific safety and health
instructions and measures specified by the HOM are/would be appropriate
and will/would adequately protect the safety and health of the CAWs,
and, if found appropriate, enables/would enable OSHA to enforce these
instructions and measures. Additionally, the condition includes/would
include a series of related hazard prevention and control requirements
and methods (e.g., decompression tables, job hazard analyses (JHA),
operations and inspections checklists) designed to ensure the continued
effective functioning of the hyperbaric equipment and operating system.

Condition F: Communication

    Condition F requires/would require the applicant to develop and
implement an effective system of information sharing and communication.
Effective information sharing and communication will/would 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 condition also requires/would require the
applicant to ensure that reliable means of emergency communications
are/would be available and maintained for affected workers and support
personnel during hyperbaric operations, which will/would enable
affected workers and support personnel to respond quickly and
effectively to hazardous conditions that may develop during EPBTBM
operations.

Condition G: Worker Qualification and Training

    This condition requires/would require the applicant to develop and
implement an effective qualification and training program for affected
workers. The condition specifies/would specify 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
will/would ensure that they recognize, and respond appropriately to,
hyperbaric safety and health hazards. These qualification and training
requirements will/would enable affected workers to cope effectively
with emergencies, as well as the discomfort and physiological effects
of hyperbaric exposure, thereby preventing injury, illness, and
fatalities among the workers.
    Paragraph (2)(e) of this condition also requires/would require the
applicant to provide affected workers with information the workers can
use to contact the appropriate healthcare professionals should the
workers believe they may be developing hyperbaric-related health
effects from their exposure to hyperbaric conditions. This requirement
will/would provide for early intervention and treatment of DCI and
other health effects resulting from hyperbaric exposure, thereby
reducing the severity of these effects.

Condition H: Inspections, Tests, and Accident Prevention

    Condition H requires/would require the applicant to develop,
implement, and operate a program of frequent and regular inspections of
the EPBTBM's hyperbaric equipment and support systems, and associated
work areas. This condition will/would help ensure the safe operation
and physical integrity of the equipment and work areas necessary to
conduct hyperbaric operations, thereby enhancing worker safety by
reducing the risk of a hyperbaric-related emergency.
    Paragraph (3) of this condition requires/would require the
applicant to document tests, inspections, corrective actions, and
repairs involving the EPBTBM, and maintain these documents at the job
site for the duration of the job. This requirement will/would provide
the applicant with information needed to schedule tests and inspections
to ensure the continuing 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 I: Compression and Decompression

    This condition requires/would require the applicant to consult with
its designated medical advisor regarding special compression or
decompression procedures appropriate for any unacclimated CAW. This
provision will/would ensure 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 EPBTBM operations.
Accordingly, CAWs requiring acclimation to the hyperbaric conditions in
the EPBTBM will/would have an opportunity to acclimate prior to
exposure to these conditions. OSHA believes this condition will/would
prevent or reduce adverse reactions among CAWs to the effects of

compression or decompression associated with the intervention work they
perform in the EPBTBM.

Condition J: Recordkeeping

    Condition J requires/would require the applicant 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 K,
will/would enable the applicant and OSHA to determine the effectiveness
of the interim order/permanent variance in preventing DCI and other
hyperbaric-related effects.

Proposed Condition K: Notifications

    Under this condition, the applicant must/would, within specified
periods, notify OSHA of any employee injuries, illnesses, or fatalities
that occur as a result of hyperbaric exposures during EPBTBM
operations; provide OSHA with a copy of the incident investigation of
these events that includes information on the root-cause determination,
and preventive and corrective actions identified and implemented by the
applicant; and certify that it informed affected workers of the
incident and the results of the incident investigation. This condition
also requires/would require the applicant to: notify OTPCA and the
Manhattan Area Office within 15 working days should the applicant need
to revise its HOM to accommodate changes in its compressed-air
operations that affect/would affect its ability to comply with the
conditions of the interim order/permanent variance; and provide OTPCA
and the Manhattan Area Office, at the end of the New York Siphon Tunnel
Project, with a report evaluating the effectiveness of the
decompression tables.
    These notification requirements will/would enable the applicant,
its employees, and OSHA to determine the effectiveness of the interim
order/permanent variance in providing the requisite level of safety to
the applicant's workers and, based on this determination, whether to
revise or revoke the conditions of the interim order/permanent
variance. Timely notification will/would permit OSHA to take whatever
action may be necessary and appropriate to prevent further casualties,
while providing notification to employees will/would inform them of the
precautions taken by the applicant to prevent similar incidents in the
future.
    This condition also requires/would require the applicant to notify
OSHA if it ceases to do business, has a new address or location for its
main office, or transfers the operations covered by the interim order/
permanent variance to a successor company. In addition, the condition
specifies/would specify that OSHA must approve the transfer of the
interim order/permanent variance to a successor company. These
requirements will/would allow OSHA to communicate effectively with the
applicant regarding the status of the interim order/permanent variance,
and expedite the Agency's administration and enforcement of the interim
order/permanent variance. Stipulating that an applicant must have
OSHA's approval to transfer a variance to a successor company will/
would provide assurance that the successor company has knowledge of,
and will/would comply with, the conditions specified by the interim
order/permanent variance, thereby ensuring the safety of workers
involved in performing the operations covered by the interim order/
permanent variance.

IV. Grant of Interim Order

    As noted earlier, the applicant requested an interim order that
would remain in effect until completion of the New York Siphon Tunnel
Project, or until the Agency makes a decision on its application for a
permanent variance. During this period, the applicant will fully comply
with the conditions of the interim order as an alternative to complying
with the requirements of 29 CFR 1926.803 (hereafter, ``the standard'')
that:
    A. Prohibit employers using compressed air under hyperbaric
conditions from subjecting workers to pressure exceeding 50 p.s.i.g.,
except in emergency (29 CFR 1926.803(e)(5));
    B. Require the use of decompression values specified by the
decompression tables in Appendix A of the compressed-air standard (29
CFR 1926.803(f)(1)); and
    C. 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).
    After reviewing the application, OSHA preliminarily determined
that:
    A. Tully developed, and proposed to implement, effective
alternative measures to the prohibition of using compressed air under
hyperbaric conditions exceeding 50 p.s.i.g. The proposed 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.g. while engaged in the construction of a subaqueous
tunnel using advanced shielded mechanical-excavation techniques in
conjunction with an EPBTBM. Prior to conducting interventions in the
EPBTBM's pressurized working chamber, the applicant 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. Tully developed, and proposed to implement, safe hyperbaric work
procedures, emergency and contingency procedures, and medical
examinations for the project's CAWs. The applicant compiled these
standard operating procedures into a project-specific HOM. The HOM
discusses 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. 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 (competent person), 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.
    C. Tully developed, and proposed to implement, a training program
to instruct affected workers in the hazards associated with conducting
hyperbaric operations.
    D. Tully developed, and proposed to implement, an effective
alternative to the use of automatic controllers that continuously
decrease pressure to achieve decompression in accordance with the
tables specified by the standard. The 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 hyperbaric
supervisor, and attending physician certified in hyperbaric medicine,
to oversee all hyperbaric operations.
    E. Tully developed, and proposed to implement, an effective
alternative to the use of the special decompression chamber required by
the standard. EPBTBM technology permits the tunnel's work areas to be
at atmospheric pressure, with only the face of the EPBTBM (i.e., the
working chamber) at elevated pressure. The applicant limits
interventions conducted in the working chamber to performing required
inspection, maintenance, and repair of the cutting tools on the face of
the EPBTBM. The EPBTBM's man lock and working chamber provide
sufficient space for the maximum crew of three CAWs to stand up and
move around, and safely accommodate decompression times up to 360
minutes. Therefore, OSHA preliminarily determined that the EPBTBM's man
lock and working chamber function as effectively as the special
decompression chamber required by the standard.
    OSHA conducted a review of the scientific literature regarding
decompression to determine whether the alternative decompression method
(i.e., the 1992 French Decompression Tables) the applicant proposed
would provide a workplace as safe and healthful as that provided by the
standard. Based on this review, OSHA preliminarily determined that
tunneling operations performed with these tables \5\ result in a lower
occurrence of DCI than the decompression tables specified by the
standard.6 7 8
---------------------------------------------------------------------------

    \5\ 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).
    \6\ 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.
    \7\ Sealey, JL (1969). Safe exit from the hyperbaric
environment: medical experience with pressurized tunnel operations.
Journal of Occupational Medicine, 11(5), pp. 273-275. This article
reported 210 treated cases of DCI among 38,600 hyperbaric exposures
between 13 and 34 p.s.i.g. over a 32-month period, for an incidence
of 0.54% for the decompression tables specified by the Washington
State safety standards for compressed-air work, which are similar to
the tables in the OSHA standard. Moreover, the article reported 51
treated cases of DCI for 3,000 exposures between 30 and 34 p.s.i.g.,
for an incidence of 1.7% for the Washington State tables.
    \8\ In 1985, the National Institute for Occupational Safety and
Health (NIOSH) published a report entitled ``Criteria for Interim
Decompression Tables for Caisson and Tunnel Workers''; this report
reviewed studies of DCI and other hyperbaric-related injuries
resulting from use of OSHA's tables. This report is available on
NIOSH's Web site: http://www.cdc.gov/niosh/topics/decompression/default.html.
---------------------------------------------------------------------------

    The review conducted by OSHA found several research studies
supporting the determination that the 1992 French Decompression Tables
result in a lower rate of DCI than 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); \9\ this project used the 1992 French Decompression Tables to
decompress the workers during part of the construction. Anderson
observed 6 DCS cases out of 7,220 decompression events, and reported
that switching to the 1992 French Decompression tables reduced the DCI
incidence to 0.08%. 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. 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, nor did OSHA find any studies indicating that the
1992 French Decompression Tables were more hazardous to employees than
the OSHA decompression tables.\10\
---------------------------------------------------------------------------

    \9\ Anderson HL (2002). Decompression sickness during
construction of the Great Belt tunnel, Denmark. Undersea and
Hyperbaric Medicine, 29(3), pp. 172-188.
    \10\ 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).
---------------------------------------------------------------------------

    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 issuing an interim order.
---------------------------------------------------------------------------

    \11\ These state variances are available in the docket: 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.
---------------------------------------------------------------------------

    Under the interim order and variance application, instead of
complying with the requirements of 29 CFR 1926.803(e)(5), (f)(1),
(g)(1)(iii), and (g)(1)(xvii), Tully will: (1) Comply with the
conditions listed below under ``Specific Conditions of the Interim
Order and the Application for a Permanent Variance'' for the period
between the date of this notice and completion of the New York Siphon
Tunnel Project or the date OSHA publishes its final decision on Tully's
application in the Federal Register; (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 its application for
a permanent variance. Additionally, this interim order will remain in
effect until one of the following conditions occurs: (1) Completion of
the New York Siphon Tunnel Project; (2) OSHA publishes its final
decision on the variance application in the Federal Register; or (3)
OSHA modifies or revokes the interim order in accordance with 29 CFR
1905.13.

V. Specific Conditions of the Interim Order and the Application for a
Permanent Variance

    The following conditions apply to the interim order OSHA is
granting to Tully. In addition, these conditions specify the
alternative means of compliance with the requirements of paragraphs 29
CFR 1926.803(e)(5), (f)(1), (g)(1)(iii), and (g)(1)(xvii) that the
Tully is proposing for its permanent variance. The conditions apply to
all employees of Tully/OHL USA Joint Venture exposed to hyperbaric
conditions at the New York Siphon Tunnel Project. These conditions are:
\13\
---------------------------------------------------------------------------

    \13\ In these conditions, the present tense form of the verb
(e.g., ``must'') pertains to the interim order, while the future
conditional form of the verb (e.g., ``would'') pertains to the
application for a permanent variance (designated as ``permanent
variance'').
---------------------------------------------------------------------------

A. Scope

    The interim order/permanent variance applies/would apply only to
work:
    1. That occurs in conjunction with construction of the New York
Siphon Tunnel Project, a subaqueous tunnel constructed using advanced
shielded mechanical-excavation techniques and involving operation of an
EPBTBM;

    2. Performed under compressed-air and hyperbaric conditions up to
58 p.s.i.g.;
    3. In the EPBTBM's forward section (the working chamber) and
associated hyperbaric chambers used to pressurize and decompress
employees entering and exiting the working chamber; and
    4. Except for the requirements specified by 29 CFR 1926.803(e)(5),
(f)(1), (g)(1)(iii), and (g)(1)(xvii), Tully must/would comply fully
with all other applicable provisions of 29 CFR part 1926.

B. Application

    The interim order/permanent variance applies/would apply only when
Tully stops the tunnel-boring work, pressurizes the working chamber,
and the CWAs either enter the working chamber to perform interventions
(i.e., inspect, maintain, or repair the mechanical-excavation
components), or exit the working chamber after performing
interventions.

C. List of Abbreviations

    Abbreviations used throughout this interim order/permanent variance
include the following:

1. CAW--Compressed-air worker
2. CFR--Code of Federal Regulations
3. EPBTBM--Earth Pressure Balanced Tunnel Boring Machine
4. HOM--Hyperbaric Operations and Safety Manual
5. JHA--Job hazard analysis
6. OSHA--Occupational Safety and Health Administration
7. OTPCA--Office of Technical Programs and Coordination Activities

D. Definitions

    The following definitions apply/would apply to this interim order/
permanent variance. These definitions supplement the definitions in
Tully's project-specific HOM.
    1. Affected employee or worker--an employee or worker who would be
affected by the conditions of this interim order/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 up to 58 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. Earth Pressure Balanced Tunnel Boring Machine--the machinery
used to excavate the tunnel.
    6. Hot work--any activity performed in a hazardous location that
may introduce an ignition source into a potentially flammable
atmosphere.\15\
---------------------------------------------------------------------------

    \15\ Also see 29 CFR 1910.146(b).
---------------------------------------------------------------------------

    7. Hyperbaric--at a higher pressure than atmospheric pressure.
    8. Hyperbaric intervention--a term that describes the process of
stopping the EPBTBM 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.
    9. Hyperbaric Operations Manual--a detailed, project-specific
health and safety plan developed and implemented by Tully for working
in compressed air during the New York Siphon Tunnel Project.
    10. Job hazard analysis--an evaluation of tasks or operations to
identify potential hazards and to determine the necessary controls.
    11. 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.
    12. Pressure--a force acting on a unit area. Usually expressed as
pounds per square inch (p.s.i.).
    13. 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.
    14. 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.
    15. 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.
    16. 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.\16\
---------------------------------------------------------------------------

    \16\ Adapted from 29 CFR 1926.32(m).
---------------------------------------------------------------------------

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

E. Safety and Health Practices

    1. Tully must/would develop and implement a project-specific HOM,
and submit the HOM to OSHA at least six months before using the EPBTBM.
Tully must/would receive a written acknowledgement from OSHA regarding
the acceptability of the HOM.\17\ The HOM shall provide/would provide
the governing safety and health requirements regarding hyperbaric
exposures during the tunnel-construction project.
---------------------------------------------------------------------------

    \17\ The grant of this interim order constitutes such
acknowledgement by OSHA of the acceptability of the HOM provided by
Tully for the New York Siphon Tunnel Project.
---------------------------------------------------------------------------

    2. Tully must/would implement the safety and health instructions
included in the manufacturer's operations manuals for the EPBTBM, and
the safety and health instructions provided by the manufacturer for the
operation of decompression equipment.
    3. Tully must/would use air as the only breathing gas in the
working chamber.
    4. Tully must/would use 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.''
    5. Tully must/would equip man locks used by its employees with an
oxygen-delivery system as specified by the HOM. Tully must/would not
store oxygen or other compressed gases used in conjunction with
hyperbaric work in the tunnel.
    6. Workers performing hot work under hyperbaric conditions must/
would use flame-retardant personal protective equipment and clothing.
    7. In hyperbaric work areas, Tully must/would maintain an adequate
fire-suppression system approved for hyperbaric work areas.
    8. Tully must/would develop and implement one or more JHAs for work
in the hyperbaric work areas, and review, periodically and as necessary

(e.g., after making changes to a planned intervention that affects its
operation), the contents of the JHAs with affected employees. The JHAs
must/would 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.
---------------------------------------------------------------------------

    9. Tully must/would develop a set of checklists to guide
compressed-air work and ensure that employees follow/would follow the
procedures required by this interim order/permanent variance (including
all procedures required by the HOM, which this interim order/permanent
variance incorporates/would incorporate by reference). The checklists
must/would include all steps and equipment functions that the risk
assessment indicates/would indicate are essential to prevent injury or
illness during compressed-air work.
    10. Tully must/would ensure that the safety and health provisions
of the HOM adequately protect/would protect the workers of all
contractors and subcontractors involved in hyperbaric operations.\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.
---------------------------------------------------------------------------

F. Communication

    1. Prior to beginning a shift, Tully must/would implement a system
that informs/would inform 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 rock slides, cave-ins, flooding, fires, or explosions.
    2. Tully must/would provide a power-assisted means of communication
among affected workers and support personnel in hyperbaric conditions
where unassisted voice communication is inadequate.
    a. Tully must/would 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. Tully must/would test communication systems at the start of each
shift and as necessary thereafter to ensure proper operation.

G. Worker Qualifications and Training

    Tully must/would:
    1. Ensure that each affected worker receives/would receive
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/would perform work, or
controls/would control the exposure of others, in hyperbaric
conditions, and document this instruction. The instruction must/would
include topics such as:
    a. The physics and physiology of hyperbaric work;
    b. Recognition of pressure-related injuries;
    c. Information on the cause, signs, and symptoms of decompression
illness;
    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.
    3. Repeat the instruction specified in paragraph (b) of this
condition periodically and as necessary (e.g., after making changes to
its hyperbaric operations).
    4. When conducting training for its hyperbaric workers, make this
training available to OSHA personnel and notify the OTPCA at OSHA's
national office and OSHA's Manhattan Area Office before the training
takes place.

H. Inspections, Tests, and Accident Prevention

    1. Tully must/would initiate and maintain a program of frequent and
regular inspections of the EPBTBM'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) by:
    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
and weekly inspections of the EPBTBM.
    2. If the competent person determines that the equipment
constitutes/would constitute a safety hazard, Tully must/would remove
the equipment from service until it corrects the hazardous condition
and has the correction approved by a qualified person.
    3. Tully must/would maintain records of all tests and inspections
of the EPBTBM, as well as associated corrective actions and repairs, at
the job site for the duration of the job.

I. Compression and Decompression

    Tully must/would consult with its attending physician concerning
the need for special compression or decompression exposures appropriate
for CAWs not acclimated to hyperbaric exposure.

J. Recordkeeping

    In addition to the requirements of 29 CFR part 1904 (Recording and
Reporting Occupational Injuries and Illnesses), Tully must/would
maintain records of:
    1. The date, times, and pressure for each hyperbaric intervention.
    2. The name of each individual worker exposed to hyperbaric
pressure and the decompression protocols and results for each worker.

K. Notifications

    1. To assist OSHA in administering the conditions specified herein,
Tully must/would:
    a. Notify the OTPCA and the Manhattan Area Office of any injury,
illness, or fatality resulting from exposure of an employee to
hyperbaric conditions within 8 hours of the incident, and provide a
copy of the incident investigation within 24 hours of the incident. The
incident-investigation report must include a root-cause determination,
and the preventive and corrective actions identified and implemented.
    b. Provide certification within 15 days of the incident that it
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 Manhattan Area Office within 15 working
days and in writing, of any change in the compressed-air operations
that affects Tully's ability to comply with the conditions specified
herein.
    d. Upon completion of the New York Siphon Tunnel Project, evaluate
the effectiveness of the decompression tables used throughout the
project, and provide a written report of this evaluation to the OTPCA
and the Manhattan Area Office.
    e. To assist OSHA in administering the conditions specified herein,
inform the OTPCA and the Manhattan 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 interim order/permanent
variance by the same means required to inform them of its application
for a variance.
    2. OSHA must/would approve the transfer of this interim order/
permanent variance to a successor company.

Authority and Signature

    David Michaels, Ph.D., MPH, 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 Section 29
U.S.C. 655(6)(d), Secretary of Labor's Order No. 1-2012 (77 FR 3912,
Jan. 25, 2012), and 29 CFR 1905.11.

    Signed at Washington, DC, on January 2, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2014-00008 Filed 1-6-14; 8:45 am]
BILLING CODE 4510-26-P[FEDREG][VOL]*[/VOL][NO]*[/NO][DATE]*[/
DATE][NOTICES]


[Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012)]
[Rules and Regulations]
[Pages 39420-39422]
[FR Doc No: 2012-16393]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0553]
RIN 1625-AA00

Safety Zone; Bay Village Independence Day Fireworks, Lake Erie,
Bay Village, OH

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on
Lake Erie, Bay Village, OH. This safety zone is intended to restrict
vessels from a portion of Lake Erie during the Bay Village Independence
Day Fireworks display. This temporary safety zone is necessary to
protect spectators and vessels from the hazards associated with a
fireworks display.

DATES: This rule will be effective from 9:30 p.m. to 11:00 p.m. on July
4, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket
[USCG-2012-0553]. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' box, and click ``Search.'' You may
visit the Docket Management Facility, Department of Transportation,
West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call or email LT Christopher Mercurio, Chief of
Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-
843-9343, email<EMAIL_ADDRESS>If you have
questions on viewing or submitting material to the docket, call Renee
V. Wright, Program Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because doing so would be impracticable and
contrary to the public interest. The final details for this event were
not known to the Coast Guard until there was insufficient time
remaining before the event to publish an NPRM. Thus, delaying the
effective date of this rule to wait for a comment period to run would
be both impracticable and contrary to the public interest because it
would inhibit the Coast Guard's ability to protect spectators and
vessels from the hazards associated with a maritime fireworks display,
which are discussed further below.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. For the same reasons discussed in
the preceding paragraph, waiting for 30 day notice period run would be
impracticable and contrary to the public interest.

B. Basis and Purpose

    Between 10:00 p.m. and 10:30 p.m. on July 4, 2012, a fireworks
display will be held on Lake Erie near Bay Village, OH. The Captain of
the Port Buffalo has determined that fireworks launched proximate to a
gathering of watercraft pose a significant risk to public safety and
property. Such hazards include premature and accidental detonations,
dangerous projectiles, and falling or burning debris.

C. Discussion of Rule

    With the aforementioned hazards in mind, the Captain of the Port
Buffalo has determined that this temporary safety zone is necessary to
ensure the safety of spectators and vessels during the Bay Village
Independence Day Fireworks. This zone will be effective and enforced
from 9:30 p.m. until 11:00 p.m. on July 4, 2012. This zone will
encompass all waters of Lake Erie, Bay Village, OH within an 1120 foot
radius of position 41[deg]29'24.4'' N and 81[deg]55'46.8'' W (NAD 83).
    Entry into, transiting, or anchoring within the safety zone is
prohibited unless authorized by the Captain of the Port Buffalo or his
designated on-scene representative. The Captain of the Port or his
designated on-scene

representative may be contacted via VHF Channel 16.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of that Order. Executive Order
12866 or under section 1 of Executive Order 13563. The Office of
Management and Budget has not reviewed it under those Orders. It is not
``significant'' under the regulatory policies and procedures of the
Department of Homeland Security (DHS). We conclude that this rule is
not a significant regulatory action because we anticipate that it will
have minimal impact on the economy, will not interfere with other
agencies, will not adversely alter the budget of any grant or loan
recipients, and will not raise any novel legal or policy issues. The
safety zone created by this rule will be relatively small and enforced
for a relatively short time. Also, the safety zone is designed to
minimize its impact on navigable waters. Furthermore, the safety zone
has been designed to allow vessels to transit around it. Thus,
restrictions on vessel movement within that particular area are
expected to be minimal. Under certain conditions, moreover, vessels may
still transit through the safety zone when permitted by the Captain of
the Port.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The Coast Guard
certifies under 5 U.S.C. 605(b) that this rule will not have a
significant economic impact on a substantial number of small entities.
    This rule will affect the following entities, some of which might
be small entities: The owners or operators of vessels intending to
transit or anchor in a portion of Lake Erie on the evening of July 4,
2012.
    This safety zone will not have a significant economic impact on a
substantial number of small entities for the following reasons: This
safety zone would be activated, and thus subject to enforcement, for
only an hour and a half late in the day. Traffic may be allowed to pass
through the zone with the permission of the Captain of the Port. The
Captain of the Port can be reached via VHF channel 16. Before the
activation of the zone, we would issue local Broadcast Notice to
Mariners.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

4. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and determined
that this rule does not have implications for federalism.

6. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

7. Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

8. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

9. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.

10. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.

11. Energy Effects

    This action is not a ``significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.

12. Technical Standards

    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

13. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined
that this action is one

of a category of actions that do not individually or cumulatively have
a significant effect on the human environment. This rule involves the
establishment of a safety zone and, therefore it is categorically
excluded from further review under paragraph 34(g) of Figure 2-1 of the
Commandant Instruction. An environmental analysis checklist supporting
this determination and a Categorical Exclusion Determination are
available in the docket where indicated under ADDRESSES. We seek any
comments or information that may lead to the discovery of a significant
environmental impact from this rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for Part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703;
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.

0
2. Add Sec.  165.T09-0553 to read as follows:

Sec.  165.T09-0553  Safety Zone; Bay Village Independence Day
Fireworks, Lake Erie, Bay Village, OH.

    (a) Location. The safety zone will encompass all waters of Lake
Erie, Bay Village, OH within an 1120 foot radius of position
41[deg]29'24.4'' N and 81[deg]55'46.8'' W (NAD 83).
    (b) Effective and Enforcement Period. This regulation is effective
and will be enforced on July 4, 2012 from 9:30 p.m. until 11:00 p.m.
    (c) Regulations.
    (1) In accordance with the general regulations in Sec.  165.23 of
this part, entry into, transiting, or anchoring within this safety zone
is prohibited unless authorized by the Captain of the Port Buffalo or
his designated on-scene representative.
    (2) This safety zone is closed to all vessel traffic, except as may
be permitted by the Captain of the Port Buffalo or his designated on-
scene representative.
    (3) The ``on-scene representative'' of the Captain of the Port
Buffalo is any Coast Guard commissioned, warrant or petty officer who
has been designated by the Captain of the Port Buffalo to act on his
behalf.
    (4) Vessel operators desiring to enter or operate within the safety
zone shall contact the Captain of the Port Buffalo or his on-scene
representative to obtain permission to do so. The Captain of the Port
Buffalo or his on-scene representative may be contacted via VHF Channel
16. Vessel operators given permission to enter or operate in the safety
zone must comply with all directions given to them by the Captain of
the Port Buffalo, or his on-scene representative.

    Dated: June 18, 2012.
S.M. Wischmann,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2012-16393 Filed 7-2-12; 8:45 am]
BILLING CODE 9110-04-P