[Federal Register Volume 88, Number 149 (Friday, August 4, 2023)]
[Notices]
[Pages 51862-51872]
[FR Doc No: 2023-16669]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2023-0010]

Ballard Marine Construction Bay Park Conveyance Tunnel Project;
Application for Permanent Variance and Interim Order; Grant of Interim
Order; Request for Comments

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

ACTION: Notice.

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SUMMARY: In this notice, OSHA announces the application of Ballard
Marine Construction for a permanent variance and interim order from
provisions of OSHA standards that regulate work in compressed air
environments, presents the agency's preliminary finding on Ballard's
application, and announces the granting of an interim order. OSHA
invites the public to submit comments on the variance application to
assist the agency in determining whether to grant the applicant a
permanent variance based on the conditions specified in this
application.

DATES: Submit comments, information, documents in response to this
notice, and request for a hearing on or before September 5, 2023. The
interim order described in this notice will become effective on August
4, 2023, and shall remain in effect until the completion of the Bay
Park Tunnel Conveyance Project in Nassau County, New York or the
interim order is modified or revoked.

ADDRESSES:
    Electronically: You may submit comments, including attachments,
electronically at http://www.regulations.gov, the Federal eRulemaking
Portal. Follow the instructions online for making electronic
submissions.
    Instructions: All submissions must include the agency's name and
the docket number for this rulemaking (Docket No. OSHA-2023-0010). All
comments, including any personal information you provide, are placed in
the public docket without change and may be made available online at
https://www.regulations.gov. Therefore, OSHA cautions commenters about
submitting information they do not want made available to the public,
or submitting materials that contain personal information (either about
themselves or others), such as Social Security numbers and birthdates.
    Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov. Documents in the docket
(including this Federal Register notice) are listed in the http://www.regulations.gov index; however, some information (e.g., copyrighted
material) is not publicly available to read or download through the
website. All submissions, including copyrighted material, are available
for inspection through the OSHA Docket Office. Contact the OSHA Docket
Office at<PHONE_NUMBER> (TTY<PHONE_NUMBER>) for assistance in
locating docket submissions.
    Extension of comment period: Submit requests for an extension of
the comment period on or before September 5, 2023 to the Office of
Technical Programs and Coordination Activities, Directorate of
Technical Support and Emergency Management, Occupational Safety and
Health Administration, U.S. Department of Labor, 200 Constitution
Avenue NW, Room N-3653, Washington, DC 20210, or by fax to (202) 693-
1644.

FOR FURTHER INFORMATION CONTACT: Information regarding this notice is
available from the following sources:
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office
of Communications, U.S. Department of Labor; telephone:<PHONE_NUMBER>;
email: [email protected].
    General and technical information: Contact Mr. Kevin Robinson,
Director, Office of Technical Programs and Coordination Activities,
Directorate of Technical Support and Emergency

Management, Occupational Safety and Health Administration, U.S.
Department of Labor; telephone:<PHONE_NUMBER>; email:
[email protected].
    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 concise statement of facts detailing how the
permanent variance would affect the requesting party; (2) a
specification of any statement or representation in the variance
application that the commenter denies, and a concise summary of the
evidence offered in support of each denial; and (3) any views or
arguments on any issue of fact or law presented in the variance
application.

SUPPLEMENTARY INFORMATION:

I. Notice of Application

    On March 25, 2022, Ballard Marine Construction (Ballard or the
applicant), submitted under Section 6(d) of the Occupational Safety and
Health Act of 1970 (the 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, 1926.803 of 1926 Subpart S--
Underground Construction, Caissons, Cofferdams, and Compressed Air, and
an interim order allowing it to proceed while OSHA considers the
request for a permanent variance (OSHA-2023-0010-0001). This notice
addresses Ballard's application for a permanent variance and interim
order for construction of the Bay Park Conveyance Tunnel Project in
Nassau County, New York only and is not applicable to future Ballard
tunneling projects.
    Specifically, this notice addresses Ballard's application for a
permanent variance and interim order from the provisions of the
standard that: (1) require the use of the decompression values
specified in decompression tables in Appendix A of subpart S (29 CFR
1926.803(f)(1)); and (2) require the use of automated operational
controls and a special decompression chamber (29 CFR
1926.803(g)(1)(iii) and (xvii), respectively).
    OSHA has previously approved nearly identical provisions when
granting several other very similar variances, as discussed in more
detail in Section II. OSHA preliminarily concludes that the proposed
variance is appropriate, grants an interim order temporarily allowing
the proposed activity, and seeks comment on the proposed variance.

A. Background

    The applicant is a contractor that works on complex tunnel projects
using innovations in tunnel-excavation methods. The applicant's workers
engage in the construction of tunnels using advanced shielded
mechanical excavation techniques in conjunction with an earth pressure
balanced micro-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
excavation working chamber) of the TBM.
    Ballard asserts that it bores tunnels using 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.
    Ballard's Hyperbaric Operations Manual (HOM) for the Bay Park
Conveyance Tunnel Project (OSHA-2003-0010-0004) indicates that the
maximum pressure to which it is likely to expose workers during project
interventions for the three tunnel drives is 29 pounds per square inch
gauge (p.s.i.g). The applicant will pressurize the working chamber to
the level required to maintain a stable tunnel face, which for this
project Ballard estimates will be up to a pressure not exceeding 29
p.s.i.g., which does not exceed the maximum pressure specified by the
OSHA standard at 29 CFR 1926.803(e)(5).\1\ Ballard is not seeking a
variance from this provision of the compressed-air standard.
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    \1\ The decompression tables in Appendix A of subpart S express
the working pressures as pounds per square inch gauge (p.s.i.g.).
Therefore, throughout this notice, OSHA expresses the p.s.i. value
specified by 29 CFR 1926.803(e)(5) as p.s.i.g., consistent with the
terminology in Appendix A, Table 1 of subpart S.
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    Ballard employs specially trained personnel for the construction of
the tunnel. To keep the machinery working effectively, Ballard 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 29 p.s.i.g, 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 excavation 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 excavation working chamber are designed
to accommodate three people, which is the maximum crew size allowed
under the proposed variance (Ballard only plans to employ a crew of two
people for these activities). 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.
    Ballard 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 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 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, Ballard 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(f)(1) and the decompression tables in Appendix A of 29
CFR part 1926, subpart S. Nevertheless, according to Ballard, 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.
    Ballard therefore believes its workers will be at least as safe
under its proposed alternatives as they would be under OSHA's standard
because of the reduction in number of workers and duration of
hyperbaric exposures, better application of hyperbaric medicine, and
the development of a project-specific 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 (CAWs).
    Based on an initial review of Ballard's application for a permanent
variance and interim order for the construction of the Bay Park
Conveyance Tunnel Project in Nassau County, New York, OSHA has
preliminarily determined that Ballard has proposed an alternative that
would provide a workplace at least as safe and healthful as that
provided by the standard.

II. The Variance Application

    Pursuant to the requirements of OSHA's variance regulations (29 CFR
part 1905), the applicant has certified that it notified its workers
\2\ of the variance application and request for interim order by
posting, at prominent locations where it normally posts workplace
notices, a summary of the application and information specifying where
the workers can examine a copy of the application. In addition, the
applicant informed 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'' in
section VI. D.
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A. OSHA History of Approval of Nearly Identical Variance Requests

    OSHA previously approved several nearly identical variances
involving the same types of tunneling equipment used for similar
projects. OSHA notes that it granted several subaqueous tunnel
construction permanent variances from the same provisions of OSHA's
compressed-air standard (29 CFR 1926.803(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); (5) Traylor-Shea Joint Venture for the completion of the
Alexandria RiverRenew Tunnel Project in Alexandria, Virginia and
Washington, DC (87 FR 54536, September 6, 2022); and (6) McNally/Kiewit
Joint Venture for the completion of the Shoreline Storage Tunnel
Project in Cleveland, Ohio (87 FR 58379, September 25, 2022) and (7)
Traylor-Sundt Joint Venture for the Integrated Pipeline Tunnel Project
in Dallas Texas, (88 FR 26600, May 1, 2023). OSHA also granted an
interim order to Ballard Marine Construction for the Suffolk County
Outfall Tunnel Project in West Babylon, New York (86 FR 5253, January
19, 2021). The proposed alternate conditions in this notice are nearly
identical to the alternate conditions of the previous permanent
variances and interim orders.\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 and interim
orders.
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    \3\ Most of the other subaqueous tunnel construction variances
allowed further deviation from OSHA standards by permitting employee
exposures above 50 p.s.i.g. based on the composition of the soil and
the amount of water above the tunnel for various sections of those
projects. The current proposed variance includes substantively the
same safeguards as the variances that OSHA granted previously, even
though employees will only be exposed to pressures up to 29 p.s.i.g.
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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 according to 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 (the 1992 French Decompression Tables), which
rely on staged decompression, and to 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 Bay Park
Conveyance Tunnel Project HOM are safer for tunnel workers than the
decompression protocols specified in Appendix A of 29 CFR part 1926,
subpart S. Accordingly, the applicant would commit to following the
decompression procedures described in its HOM, which would require it
to follow the 1992 French Decompression Tables to decompress
compressed-air workers (CAWs) after they exit the hyperbaric conditions
in the excavation working chamber.
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    \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).
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    Depending on the maximum working pressure and exposure times, the
1992 French Decompression Tables provide for air decompression with or
without oxygen. Ballard asserts that oxygen decompression has many
benefits, including (1) keeping the partial pressure of nitrogen in the
lungs as low as possible; (2) maintaining appropriate levels of
external pressure 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 to diminish worker fatigue 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 is also required to be present during hyperbaric
exposures and decompression. This man-lock attendant is to operate the
hyperbaric system to ensure compliance with the specified decompression
table. A hyperbaric supervisor, who is 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

    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 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 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 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.
    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 an intervention supervisor (a competent person experienced and
trained in hyperbaric operations, procedures, and safety) 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.
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    \5\ See, e.g., Eric Kindwall, Compressed Air Tunneling and
Caisson Work Decompression Procedures: Development, Problems, and
Solutions, 24(4) Undersea and Hyperbaric Medicine 337, 337-45
(1997). 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 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 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.''
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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 of the 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.

III. Agency Preliminary Determinations

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

A. 29 CFR 1926.803(f)(1)

    Ballard 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 project-specific 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, these
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.
    Prior to granting the several previous permanent variances to IHP
JV, Traylor JV, Tully JV, Salini-Impregilo Joint Venture, Traylor-Shea
JV and McNally/Kiewit JV, Traylor-Sundt JV, and Ballard (Interim Order,
January 19, 2021), OSHA conducted a review of the scientific literature
and concluded that the alternative decompression method (i.e., the 1992
French Decompression Tables) Ballard proposed would be at least as safe
as the decompression tables specified by OSHA when applied by trained
medical personnel under the conditions that would be imposed by the
proposed variance.
    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.
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    \6\ Anderson HL (2002). Decompression sickness during
construction of the Great Belt tunnel, Denmark. Undersea and
Hyperbaric Medicine, 29(3),pp. 172-188.
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    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\
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    \7\ J.C. Le P[eacute]chon, P. Barre, J.P. Baud, F. Ollivier,
Compressed Air Work--French Tables 1992--Operational Results, JCLP
Hyperbarie Paris, Centre Medical Subaquatique Interentreprise,
Marseille: Communication a l'EUBS, pp. 1-5 (September 1996) (see Ex.
OSHA-2012-0036-0005).
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    OSHA's experience with the previous several variances, which all
incorporated nearly identical decompression plans and did not result in
safety issues, also provides 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 standard (California) \10\ for hyperbaric
exposures occurring during similar subaqueous tunnel-construction work,
provide additional evidence of the effectiveness of this alternative
procedure.
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    \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. See 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.
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B. 29 CFR 1926.803(g)(1)(iii)

    Ballard 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 hyperbaric supervisor 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 approved tunneling variances,
the experiences of State Plans, and a review of the literature and
other information noted earlier.

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

    Ballard 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 up to 360 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.
    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 preliminarily finds that when the employer complies with the
conditions of the proposed modified variance, the working conditions of
the employer's workers would be at least as safe and healthful as if
the employer complied with the working conditions specified by
paragraphs (e)(5), (f)(1), (g)(1)(iii), and (g)(1)(xvii) of 29 CFR
1926.803.

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

    OSHA hereby announces the preliminary decision to grant an interim
order allowing Ballard's CAWs to perform interventions in hyperbaric
conditions not exceeding 29 p.s.i.g. during the Bay Park Conveyance
Tunnel Project, subject to the conditions that follow in this document.
This interim order will remain in effect until completion of the Bay
Park Conveyance Tunnel Project or until the agency modifies or revokes
the interim order or makes a decision on Ballard's application for a
permanent variance. During the period starting with the publication of
this notice until completion of the Bay Park Conveyance Tunnel Project,
or until the agency modifies or revokes the interim order or makes a
decision on its application for a permanent variance, the applicant is
required to comply fully with the conditions of the interim order as an
alternative to complying with the following requirements of 29 CFR
1926.803 (``the standard'') that:
    1. 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));
    2. Require the use of automated operational controls (29 CFR
1926.803(g)(1)(iii)); and

    3. Require the use of a special decompression chamber (29 CFR
1926.803(g)(1)(xvii)).
    In order to avail itself of the interim order, Ballard must: (1)
comply with the conditions listed in the interim order for the period
starting with the grant of the interim order and ending with Ballard's
completion of the Bay Park Conveyance Tunnel Project (or until the
agency modifies or revokes the interim order or makes a decision on its
application for a permanent variance); (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 proposed
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.
    OSHA is also proposing that the same requirements (see above
section III, parts A through C) would apply to a permanent variance if
OSHA ultimately issues one for this project. OSHA requests comment on
those conditions as well as OSHA's preliminary determination that the
specified alternatives and conditions would provide a workplace as safe
and healthful as those required by the standard from which a variance
is sought. After reviewing comments, OSHA will publish in the Federal
Register the agency's final decision approving or rejecting the request
for a permanent variance.

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

    This section describes the alternative means of compliance with 29
CFR 1926.803(f)(1), (g)(1)(iii), and (g)(1)(xvii) and provides
additional detail regarding the proposed conditions that form the basis
of Ballard's application for an Interim Order and for a Permanent
Variance. The conditions are listed in Section VI. For brevity, the
discussion that follows refers only to the permanent variance, but the
same conditions apply to the Interim Order.

Proposed Condition A: Scope

    The scope of the proposed permanent variance would limit coverage
to the work situations specified. Clearly defining the scope of the
proposed permanent variance provides Ballard, Ballard's employees,
potential future applicants, other stakeholders, the public, and OSHA
with necessary information regarding the work situations in which the
proposed permanent variance would apply. To the extent that Ballard
exceeds the defined scope of this variance, it would be required to
comply with OSHA's standards.
    Pursuant to 29 CFR 1905.11, an employer (or class or group of
employers) \11\ may request a permanent variance for a specific
workplace or workplaces. If OSHA approves a permanent variance, it
would apply only to the specific employer(s) that submitted the
application and only to the specific workplace or workplaces designated
as part of the project. In this instance, if OSHA were to grant a
permanent variance, it would apply to only the applicant, Ballard
Marine Construction, and only to the Bay Park Conveyance Tunnel
Project. As a result, it is important to understand that if OSHA were
to grant Ballard a Permanent Variance, it would not apply to any other
employers, or to projects the applicant may undertake in the future.
---------------------------------------------------------------------------

    \11\ A class or group of employers (such as members of a trade
alliance or association) may apply jointly for a Variance provided
an authorized representative for each employer signs the application
and the application identifies each employer's affected facilities.
---------------------------------------------------------------------------

Proposed Condition B: Duration

    The interim order is only intended as a temporary measure pending
OSHA's decision on the permanent variance, so this condition specifies
the duration of the Order. If OSHA approves a permanent variance, it
would specify the duration of the permanent variance as the remainder
of the Bay Area Conveyance Tunnel Project.

Proposed Condition C: List of Abbreviations

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

Proposed Condition D: Definitions

    The proposed condition defines a series of terms, mostly technical
terms, used in the proposed permanent variance to standardize and
clarify their meaning. OSHA believes that defining these terms serves
to enhance the applicant's and its employees' understanding of the
conditions specified by the proposed permanent variance.

Proposed Condition E: Safety and Health Practices

    This proposed condition requires the applicant to develop and
submit to OSHA an HOM specific to the Bay Area Conveyance Tunnel
Project at least six months before using the TBM for tunneling
operations. The applicant must also submit, 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 of 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 Ballard has already
completed, enables OSHA to determine whether the safety and health
instructions and measures Ballard 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 proposed condition includes a series of related
hazard prevention and control requirements and methods (e.g.,
decompression tables, job hazard analyses (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.

Proposed Condition F: Communication

    This proposed condition requires the applicant to develop and
implement an effective system of information sharing and communication.
Effective information sharing and communication are intended to ensure
that affected workers receive updated information regarding any safety-
related hazards and incidents, and corrective actions taken, prior to
the start of each shift. The proposed condition also requires the
applicant to ensure that reliable means of emergency communications are
available and maintained for affected

workers and support personnel during hyperbaric operations.
Availability of such reliable means of communications would enable
affected workers and support personnel to respond quickly and
effectively to hazardous conditions or emergencies that may develop
during TBM operations.

Proposed Condition G: Worker Qualification and Training

    This proposed condition requires the applicant to develop and
implement an effective qualification and training program for affected
workers. The proposed 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 is intended
to ensure 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 proposed condition requires the applicant
to provide affected workers with information they can use to contact
the appropriate healthcare professionals if the workers 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.

Proposed Condition H: Inspections, Tests, and Accident Prevention

    Proposed Condition H 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 would help to ensure the safe operation and physical
integrity of the equipment and work areas necessary to conduct
hyperbaric operations. The condition would also enhance worker safety
by reducing the risk of hyperbaric-related emergencies.
    Paragraph (3) of this proposed condition requires the applicant to
document tests, inspections, corrective actions, and repairs involving
the TBM, and maintain these documents at the jobsite for the duration
of the job. This requirement would provide 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.

Proposed Condition I: Compression and Decompression

    This proposed condition would require the applicant to consult with
the designated medical advisor regarding special compression or
decompression procedures appropriate for any unacclimated CAW and then
implement the procedures recommended by the medical consultant. This
proposed provision 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 TBM operations. Accordingly,
CAWs requiring acclimation would have an opportunity to acclimate prior
to exposure to these hyperbaric conditions. OSHA believes this
condition would prevent or reduce adverse reactions among CAWs to the
effects of compression or decompression associated with the
intervention work they perform in the TBM.

Proposed Condition J: 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's Form 301 Injury and Illness Incident Report and OSHA's Form 300
Log of Work-Related Injuries and Illnesses. The applicant did not seek
a variance from this standard, and therefore Ballard must comply fully
with those requirements.
    Examples of important information to include on the OSHA's 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;
and
     unusual occurrences, if any, during the task or
decompression.

Q15

     time of symptom onset; and
     duration between decompression and onset of symptoms.

Q16

     type and duration of symptoms; and
     a medical summary of the illness or injury.

Q17

     duration of the hyperbaric intervention;
     possible contributing factors; and
     the number of prior interventions completed by the injured
or ill CAW; and the pressure to which the CAW was exposed during those
interventions.\12\
---------------------------------------------------------------------------

    \12\ 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).
---------------------------------------------------------------------------

    Proposed Condition J would add additional reporting
responsibilities, beyond those already required by the OSHA standard.
The applicant would be required to maintain records of specific factors
associated with each hyperbaric intervention. The information gathered
and recorded under this provision, in concert with the information
provided under proposed Condition K (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, 1904.8-.12), would enable
the applicant and OSHA to assess the effectiveness of the Permanent
Variance in preventing DCI and other hyperbaric-related effects.

Proposed Condition K: Notifications

    Under the proposed condition, the applicant is required, within
specified periods of time, to: (1) notify OSHA of 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's Form 301 Injury and Illness
Incident Report) of these events within 24 hours of the incident; (3)
include on OSHA's 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 Long
Island New York OSHA Area Office (LIAO) within 15 working days should
the applicant need to revise the HOM to accommodate changes in its
compressed-air operations that affect Ballard's ability to comply with
the conditions of the proposed Permanent Variance; and (6) provide
OTPCA and the LIAO, 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's Form 301 Injury and Illness Incident
Report) is more restrictive than the existing recordkeeping requirement
of completing OSHA's 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 permanent
variance in providing the requisite level of safety to the applicant's
workers and, based on this assessment, whether to revise or revoke the
conditions of the proposed permanent variance. Timely notification
permits OSHA to take whatever action may be necessary and appropriate
to prevent possible further injuries and illnesses. Providing
notification to employees informs them of the precautions taken by the
applicant to prevent similar incidents in the future.
    Additionally, this proposed condition requires the applicant to
notify OSHA if it ceases to do business, has a new address or location
for the main office, or transfers the operations covered by the
proposed permanent variance to a successor company. In addition, the
condition specifies that the transfer of the permanent variance to a
successor company must be approved by OSHA. These requirements allow
OSHA to communicate effectively with the applicant regarding the status
of the proposed permanent variance, and expedite the agency's
administration and enforcement of the permanent variance. Stipulating
that an applicant is required to have OSHA's approval to transfer a
variance to a successor company provides assurance that the successor
company has knowledge of, and will comply with, the conditions
specified by proposed permanent variance, thereby ensuring the safety
of workers involved in performing the operations covered by the
proposed permanent variance.

VI. Specific Conditions of the Interim Order and the Proposed Permanent
Variance

    The following conditions apply to the interim order OSHA is
granting to Ballard for the Bay Area Conveyance Tunnel Project. These
conditions specify the alternative means of compliance with the
requirements of paragraphs 29 CFR 1926.803(f)(1), (g)(1)(iii), and
(g)(1)(xvii). In addition, these conditions are specific to the
alternative means of compliance with the requirements of paragraphs 29
CFR 1926.803(f)(1), (g)(1)(iii), and (g)(1)(xvii) that OSHA is
proposing for Ballard's permanent variance. To simplify the
presentation of the conditions, OSHA generally refers only to the
conditions of the proposed permanent variance, but the same conditions
apply to the interim order except where otherwise noted.\13\
---------------------------------------------------------------------------

    \13\ In these conditions, OSHA is using the future conditional
form of the verb (e.g., ``would''), which pertains to the
application for a Permanent Variance (designated as ``Permanent
Variance'') but the conditions are mandatory for purposes of the
Interim Order.
---------------------------------------------------------------------------

    The conditions would apply with respect to all employees of Ballard
exposed to hyperbaric conditions. These conditions are outlined in this
Section:

A. Scope

    The interim order applies, and the permanent variance would apply,
only when Ballard stops the tunnel-boring work, pressurizes the working
chamber, and the CAWs either enter the working chamber to perform an
intervention (i.e., inspect, maintain, or repair the mechanical-
excavation components), or exit the working chamber after performing
interventions.
    The interim order and proposed permanent variance apply only to
work:
    1. That occurs in conjunction with construction of the Bay Area
Conveyance Tunnel Project, a tunnel constructed using advanced shielded
mechanical-excavation techniques and involving operation of an TBM;
    2. In the TBM's forward section (the excavation 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
part 1926 except for the requirements specified by 29 CFR
1926.803(f)(1), (g)(1)(iii), and (g)(1)(xvii).

B. Duration

    The interim order granted to Ballard will remain in effect until
OSHA modifies or revokes this interim order or grants Ballard's request
for a permanent variance in accordance with 29 CFR 1905.13. The
proposed permanent variance, if granted, would remain in effect until
the completion of Ballard's Bay Area Conveyance Tunnel Project.

C. List of Abbreviations

    Abbreviations used throughout this proposed permanent variance
would include the following:

1. CAW--Compressed-air worker
2. CFR--Code of Federal Regulations
3. DCI--Decompression illness
4. DMT--Diver medical technician
5. TBM--Earth pressure balanced micro-tunnel boring machine
6. HOM--Hyperbaric operations manual
7. JHA--Job hazard analysis
8. LIAO--Long Island Area Office
9. OSHA--Occupational Safety and Health Administration
10. OTPCA--Office of Technical Programs and Coordination Activities

D. Definitions

    The following definitions would apply to this proposed permanent
variance. These definitions would supplement the definitions in
Ballard's project-specific HOM.
    1. Affected employee or worker--an employee or worker who is
affected by the conditions of this proposed modified 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 pounds per square inch absolute (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 29 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--an illness (also called decompression
sickness or ``the bends'') 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 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 is
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 Tunnel Boring Machine--the machinery
used to excavate a 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 1926.1202 for examples of hot work.
---------------------------------------------------------------------------

    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 Ballard for working
in compressed air during the Bay Area Conveyance Tunnel Project.
    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 experienced 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.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.a. 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.
    17. 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.a Subtracting 14.7 from a pressure expressed
in units of p.s.i.a. yields the gauge pressure, expressed as p.s.i.g.
At sea level the gauge pressure is 0 psig.
    18. 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).
---------------------------------------------------------------------------

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

E. Safety and Health Practices

    1. Ballard would have to adhere to the project-specific HOM
submitted to OSHA as part of the application (see OSHA-2023-0010-0004).
The HOM provides the minimum requirements regarding protections from
expected safety and health hazards (including anticipated geological
conditions) and hyperbaric exposures during the tunnel-construction
project.
    2. Ballard would have to 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. Ballard would have to 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. Ballard would have to ensure that there are no exposures to
pressures greater than 29 p.s.i.g.
    5. Ballard would have to ensure that air or oxygen is the only
breathing gas in the working chamber.
    6. Ballard would have to follow the 1992 French Decompression
Tables for air or oxygen decompression as specified in the HOM;
specifically, the extracted portions of the 1992 French Decompression
tables titled, ``French Regulation Air Standard Tables.''
    7. Ballard would have to equip man-locks used by employees with an
air or oxygen delivery system, as specified by the HOM, for the
project. Ballard would be required not to store in the tunnel any
oxygen or other compressed gases used in conjunction with hyperbaric
work.
    8. Workers performing hot work under hyperbaric conditions would
have to use flame-retardant personal protective equipment and clothing.
    9. In hyperbaric work areas, Ballard would have to maintain an
adequate fire-suppression system approved for hyperbaric work areas.
    10. Ballard would have to develop and implement one or more JHA(s)
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 would have to 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. Ballard would have to develop a set of checklists to guide
compressed-air work and ensure that employees follow the procedures
required by the proposed Permanent Variance and this Interim Order
(including all procedures required by the HOM approved by OSHA for the
project, which this proposed Permanent Variance would

incorporate by reference). The checklists would have to include all
steps and equipment functions that the risk assessment indicates are
essential to prevent injury or illness during compressed-air work.
    12. Ballard would have to 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.

F. Communication

    Ballard would have to:
    1. Prior to beginning a shift, 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 rock slides,
cave-ins, flooding, fires, or explosions.
    2. Provide a power-assisted means of communication among affected
workers and support personnel in hyperbaric conditions where unassisted
voice communication is inadequate.
    (a) Use an independent power supply for powered communication
systems, and these systems would have to 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) Test communication systems at the start of each shift and as
necessary thereafter during each shift to ensure proper operation.

G. Worker Qualifications and Training

    Ballard would have to:
    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 on hyperbaric conditions, before
beginning hyperbaric operations, to each worker who performs work, or
controls the exposure of others, and document this instruction. The
instruction would need to include:
    (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;
    (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 (G)(2) of this
proposed 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 nearest affected Area Office before the
training takes place.

H. Inspections, Tests, and Accident Prevention

    1. Ballard would have to 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
and 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. Ballard would have to 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.

I. Compression and Decompression

    Ballard would have to 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 completing OSHA's Form 301 Injury and Illness
Incident Report and OSHA's Form 300 Log of Work-Related Injuries and
Illnesses, Ballard would have to 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.

K. Notifications

    1. To assist OSHA in administering the conditions specified herein,
Ballard would have to:
    (a) Notify the OTPCA and the OSHA Area Office in Long Island, New
York of any recordable injury, illness or fatality (by submitting the
completed OSHA Form 301 Injuries and Illness Incident Report) resulting
from exposure of an employee to hyperbaric conditions, including those
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 notification would have to be made
within 8 hours of the incident or 8 hours after becoming aware of a
recordable injury, illness, or fatality; a copy of the incident
investigation (OSHA Form 301 Injuries and Illness Incident Report) must
be submitted to OSHA 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 OSHA Form 301 Injuries and
Illness Incident Report, the incident-investigation report would have
to include a root-cause determination, and the preventive and
corrective actions identified and implemented.
    (b) Provide certification to the OSHA Area Office in Long Island,
New York within 15 working days of the incident that Ballard 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 OSHA Area Office in Long Island, New
York within 15 working days and in writing, of any change in the
compressed-air operations that affects Ballard's ability

to comply with the proposed conditions specified herein.
    (d) Upon completion of the Integrated Pipeline 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 OSHA Area Office in Long Island, New York.

    Note:  The evaluation report would have 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 Form 301 Injuries and Illness Incident Report and OSHA 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 proposed conditions
specified herein, inform the OTPCA and the LIAO as soon as possible,
but no later than seven (7) days, after it has knowledge that it will:
    (i) Cease doing 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 proposed modified
permanent variance by the same means required to inform them of its
application for a modified permanent variance.
    2. OSHA would have to approve the transfer of the proposed modified
permanent variance to a successor company through a new application for
a modified variance.

VII. Authority and Signature

    James S. Frederick, Deputy Assistant Secretary of Labor for
Occupational Safety and Health, 200 Constitution Avenue NW, Washington,
DC 20210, authorized the preparation of this notice. The agency is
issuing this notice pursuant to 29 U.S.C. 655(6)(d), Secretary of
Labor's Order No. 8-2020 (85 FR 58393, Sept. 18, 2020), and 29 CFR
1905.14(b).

    Signed at Washington, DC, on July 27, 2023.
James S. Frederick,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2023-16669 Filed 8-3-23; 8:45 am]
BILLING CODE 4510-26-P


[Federal Register Volume 83, Number 226 (Friday, November 23, 2018)]
[Notices]
[Page 59377]
[FR Doc No: 2018-25547]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OLEM-2018-0690, FRL-9986-88-OLEM]

Agency Information Collection Activities; Proposed Collection;
Comment Request; General Hazardous Waste Facility Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is planning to
submit the information collection request (ICR), General Hazardous
Waste Facility (EPA ICR No. 1571.12, OMB Control No. 2050-0120) to the
Office of Management and Budget (OMB) for review and approval in
accordance with the Paperwork Reduction Act (PRA). Before doing so, the
EPA is soliciting public comments on specific aspects of the proposed
information collection as described below. This is a proposed extension
of the ICR, which is currently approved through April 30, 2019. An
Agency may not conduct or sponsor and a person is not required to
respond to a collection of information unless it displays a currently
valid OMB control number.

DATES: Comments must be submitted on or before January 22, 2019.

ADDRESSES: Submit your comments, referencing by Docket ID No. EPA-HQ-
OLEM-2018-0690, online using www.regulations.gov (our preferred
method), by email to [email protected], or by mail to: EPA Docket
Center, Environmental Protection Agency, Mail Code 28221T, 1200
Pennsylvania Ave. NW, Washington, DC 20460.
    EPA's policy is that all comments received will be included in the
public docket without change including any personal information
provided, unless the comment includes profanity, threats, information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute.

FOR FURTHER INFORMATION CONTACT: Peggy Vyas, Environmental Protection
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone
number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; email address:
[email protected].

SUPPLEMENTARY INFORMATION: Supporting documents which explain in detail
the information that the EPA will be collecting are available in the
public docket for this ICR. The docket can be viewed online at
www.regulations.gov or in person at the EPA Docket Center, WJC West,
Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone
number for the Docket Center is<PHONE_NUMBER>. For additional
information about EPA's public docket, visit http://www.epa.gov/dockets.
    Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting
comments and information to enable it to: (i) Evaluate whether the
proposed collection of information is necessary for the proper
performance of the functions of the Agency, including whether the
information will have practical utility; (ii) evaluate the accuracy of
the Agency's estimate of the burden of the proposed collection of
information, including the validity of the methodology and assumptions
used; (iii) enhance the quality, utility, and clarity of the
information to be collected; and (iv) minimize the burden of the
collection of information on those who are to respond, including
through the use of appropriate automated electronic, mechanical, or
other technological collection techniques or other forms of information
technology, e.g., permitting electronic submission of responses. The
EPA will consider the comments received and amend the ICR as
appropriate. The final ICR package will then be submitted to OMB for
review and approval. At that time, the EPA will issue another Federal
Register notice to announce the submission of the ICR to OMB and the
opportunity to submit additional comments to OMB.
    Abstract: Section 3004 of the Resource Conservation and Recovery
Act (RCRA), as amended, requires the EPA to develop standards for
hazardous waste treatment, storage, and disposal facilities (TSDFs) as
may be necessary to protect human health and the environment.
Subsections 3004(a)(1), (3), (4), (5), and (6) specify that these
standards include, but not be limited to, the following requirements:
     Maintaining records of all hazardous wastes identified or
listed under subtitle C that are treated, stored, or disposed of, and
the manner in which such wastes were treated, stored, or disposed of;
     Operating methods, techniques, and practices for
treatment, storage, or disposal of hazardous waste;
     Location, design, and construction of such hazardous waste
treatment, disposal, or storage facilities;
     Contingency plans for effective action to minimize
unanticipated damage from any treatment, storage, or disposal of any
such hazardous waste; and
     Maintaining or operating such facilities and requiring
such additional qualifications as to ownership, continuity of
operation, training for personnel, and financial responsibility as may
be necessary or desirable.
    The regulations implementing these requirements are codified in 40
CFR parts 264 and 265. The collection of this information enables the
EPA to properly determine whether owners/operators or hazardous waste
treatment, storage, and disposal facilities meet the requirements of
Section 3004(a) of RCRA.
    Form Numbers: None.
    Respondents/affected entities: Business and other for-profit, as
well as State, Local, and Tribal governments.
    Respondent's obligation to respond: Mandatory (RCRA section 3004).
    Estimated number of respondents: 1,872.
    Frequency of response: On occasion.
    Total estimated burden: 672,417 hours per year. Burden is defined
at 5 CFR 1320.03(b).
    Total estimated cost: $41,749,044 (per year), includes $533,425
annualized capital or operation & maintenance costs and $41,225,619
annualized labor costs.
    Changes in estimates: The burden hours are likely to stay
substantially the same.

    Dated: November 12, 2018.
Barnes Johnson,
Director, Office of Resource Conservation and Recovery.
[FR Doc. 2018-25547 Filed 11-21-18; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: March 24, 2008 (Volume 73, Number 57)]
[Notices]
[Page 15554-15555]
[DOCID:fr24mr08-101]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57515; File No. SR-Phlx-2008-21]

Self-Regulatory Organizations; Philadelphia Stock Exchange, Inc.;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Add the SIG Energy MLP Index\TM\ to Rules 1101A and 1104A

March 18, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 11, 2008, the Philadelphia Stock Exchange, Inc. (``Exchange''
or ``Phlx'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been substantially prepared by the Exchange.
The Exchange has designated this proposal as non-controversial under
Section 19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-4(f)(6)
thereunder,\4\ which renders the proposed rule change effective upon
filing with the Commission. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to add the new SIG Energy MLP Index\TM\
(trading as SVO\SM\) to Phlx Rule 1101A (Terms of Options Contracts),
regarding listing options at strike price intervals of no less than
$2.50 for strike prices less than $200, and to Phlx Rule 1104A (SIG
Indices, LLLP), which sets forth SIG Indices's disclaimer of express or
implied warranties. The text of the proposed rule change is available
on the Exchange's Web site (http://www.phlx.com), at the Exchange's
principal office, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of, and basis for, the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of the proposed rule change is to amend Phlx Rules
1101A and 1104A to include the SIG Energy MLP Index\TM\, which was
recently licensed by SIG Indices, LLLP (``Susquehanna'') to the
Exchange, and thereby allow (i) the Exchange to list the index at
strike price intervals of no less than $2.50 for strike prices less
than $200, and (ii) Susquehanna's disclaimer of liability for use of
the index. The proposal to permit $2.50 strike price intervals should
encourage the listing of options on the index at appropriate strike
price intervals, to the benefit of investors. The proposed disclaimer
should encourage maintenance of the SIG Energy MLP Index\TM\ by
Susquehanna, enabling the Exchange to continue to list options
overlying the index.\5\
---------------------------------------------------------------------------

    \5\ The Exchange currently lists and trades options on the SIG
Steel Producers Index\TM\, the SIG Coal Producers Index\TM\, the SIG
Oil Exploration & Production Index\TM\, and the newly-licensed SIG
Energy MLP Index\TM\ pursuant to a license agreement with
Susquehanna Indices, LLLP (``License Agreement'') and Exchange Rule
1009A(b). All of the SIG Indexes noted herein are trademarks of SIG
Indices, LLLP.
---------------------------------------------------------------------------

    Phlx Rule 1101A currently indicates that the Exchange shall
determine fixed point strike price intervals for index options at no
less than $5.00, provided that for indexes that are listed in Rule
1101A the Exchange may determine to list strike prices at no less than
$2.50 intervals if the strike price is less than $200.\6\ The rule
provides also that such options may be traded at $2.50 strike price
intervals in response to customer interest or specialist request. The
proposed rule change adds the SIG Energy MLP Index\TM\ to the list of
indexes in Rule 1101A upon which the Exchange may list options at $2.50
strike price intervals.
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 54973 (December 20,
2006), 71 FR 78252 (December 28, 2006) (SR-Phlx-2006-82).
---------------------------------------------------------------------------

    Phlx Rule 1104A currently provides that Susquehanna makes no
warranty, express or implied, as to results to be obtained by any
person or entity from the use of Susquehanna proprietary indexes,\7\
and that Susquehanna makes no express or implied warranties of
merchantability or fitness for a particular purpose for use with
respect to any of the named indexes or any data included therein.\8\
The proposed rule change expands the coverage of Rule 1104A to include
the newly-listed SIG Energy MLP Index\TM\, as required by the License
Agreement.
---------------------------------------------------------------------------

    \7\ The indexes noted in Rule 1101A include the SIG Investment
Managers Index\TM\, the SIG Cable, Media & Entertainment Index\TM\,
the SIG Casino Gaming Index\TM\, the SIG Semiconductor Equipment
Index\TM\, the SIG Semiconductor Device Index\TM\, the SIG Specialty
Retail Index\TM\, the SIG Steel Producers Index\TM\, the SIG
Footwear & Athletic Index\TM\, the SIG Education Index\TM\, the SIG
Restaurant Index\TM\, and the SIG Coal Producers Index\TM\.
    \8\ The Exchange noted in its filing to adopt Rule 1104A that
the proposed disclaimer was appropriate given that it was similar to
disclaimer provisions of American Stock Exchange (``Amex'') Rule
902C relating to indexes underlying options listed on Amex. See
Securities Exchange Act Release No. 47937 (May 28, 2003), 68 FR
33555 (June 4, 2003) (SR-Phlx-2003-21). The Exchange subsequently
amended Rule 1104A to add new indexes, similar to the current
proposal. See, e.g., Securities Exchange Act Release No. 51664 (May
6, 2005), 70 FR 25641 (May 13, 2005) (SR-Phlx-2005-24).
---------------------------------------------------------------------------

    The Exchange believes that the proposal should benefit investors by

effectively encouraging the listing and trading of options on an
additional Susquehanna index at more precise strike price intervals,
thereby expanding the availability of appropriate investment choices
for investors.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act \9\ in general, and furthers the objectives of Section
6(b)(5) of the Act \10\ in particular, in that it is designed to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest.
The Exchange believes that the proposed rule change will encourage
Susquehanna to continue to maintain the SIG Energy MLP Index\TM\,
enabling the Exchange to list options on the index and thereby provide
investors with a wider range of investment opportunities. The proposed
rule change should also give the Exchange the capability to price
options on the SIG Energy MLP Index\TM\ at $2.50 strike price
intervals, thereby encouraging more efficient pricing.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The Exchange has designated the proposed rule change as one that:
(1) Does not significantly affect the protection of investors or the
public interest; (2) does not impose any significant burden on
competition; and (3) does not become operative for 30 days from the
date of filing, or such shorter time as the Commission may designate if
consistent with the protection of investors and the public interest.
Therefore, the foregoing rule change has become effective pursuant to
Section 19(b)(3)(A) of the Act \11\ and subparagraph (f)(6) of Rule
19b-4 thereunder.\12\
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    \11\ 15 U.S.C. 78s(b)(3)(A).
    \12\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to provide the Commission
with written notice of its intent to file the proposed rule change,
along with a brief description and text of the proposed rule change,
at least five business days prior to the date of filing of the
proposed rule change, or such shorter time as designated by the
Commission. The Exchange has fulfilled this requirement.
---------------------------------------------------------------------------

    The Exchange has asked the Commission to waive the operative delay
to permit the proposed rule change to become operative prior to the
30th day after filing. The Exchange currently trades options on the SIG
Energy MLP Index, and would like to add the index to Rule 1104A without
delay to grant Susquehanna comfort that its liability has been properly
disclaimed for the index, as it has been for Susquehanna's other index
products currently listed in Rule 1104A. This will encourage
Susquehanna to continue to provide the index, allowing the Exchange to
continue to list options on the index without interruption.\13\
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    \13\ Telephone conversation between Jurij Trypupenko, Director
and Counsel, Phlx, and Nathan Saunders, Special Counsel, Division of
Trading and Markets, Commission, on March 13, 2008.
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    The Commission believes that waiving the 30-day operative delay of
the Exchange's proposal is consistent with the protection of investors
and the public interest.\14\ Therefore, the Commission designates the
proposal to be operative upon filing.
---------------------------------------------------------------------------

    \14\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate the rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File No. SR-Phlx-2008-21 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-Phlx-2008-21. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commissions Internet Web site (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for inspection and copying in the
Commission's Public Reference Room, 100 F Street, NE., Washington, DC
20549, on official business days between the hours of 10 a.m. and 3
p.m. Copies of such filing also will be available for inspection and
copying at the principal office of the Exchange. All comments received
will be posted without change; the Commission does not edit personal
identifying information from submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-Phlx-2008-21 and should be submitted on
or before April 14, 2008.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E8-5797 Filed 3-21-08; 8:45 am]

BILLING CODE 8011-01-P