[Federal Register: May 21, 2009 (Volume 74, Number 97)]
[Notices]
[Page 23874]
[DOCID:fr21my09-66]

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

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2009-N-0210]

Temporary Deferment of Activities Relating to Medical Device
Submissions

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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

SUMMARY: The Food and Drug Administration (FDA) is announcing that the
Center for Devices and Radiological Health (CDRH) will be moving from
various Rockville, Maryland locations to Building 66 at 10903 New
Hampshire Avenue in Silver Spring, Maryland from approximately mid May
2009 until the beginning of August 2009. Offices will progressively
move over weekends during this period. Specifically, moves will occur
on Friday, Saturday, and Sunday except on holiday weekends. During the
period required for relocation of files, equipment, and agency
personnel, the Center for Devices and Radiological Health will not
officially receive premarket submissions on the Friday of a move
weekend and the Monday after a move weekend.

FOR FURTHER INFORMATION CONTACT: Marjorie Shulman, Center for Devices
and Radiological Health (HFZ-404), Food and Drug Administration, 9200
Corporate Blvd., Rockville, MD 20850,<PHONE_NUMBER> or
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    CDRH is responsible for activities under sections 510, 513, 515,
and 520 of the Federal Food, Drug, and Cosmetic Act (the act) (21
U.S.C. 360, 360c, 360e, and 360j). These activities include, but are
not limited to:
    1. Advising the Director, CDRH, and other FDA officials on all
medical device submissions, such as premarket notification submissions
under section 510(k) of the act, device classifications under section
513 of the act, premarket approval applications (PMA's) and product
development protocols (PDP's) under section 515 of the act, and
clinical investigations under section 520 of the act;
    2. Determining substantial equivalence for premarket notification
submissions;
    3. Planning, conducting, and coordinating CDRH actions regarding
PMA's, PDP's, and investigational device exemption approvals, denials,
or withdrawals of approval;
    4. Monitoring sponsors' compliance with regulatory requirements;
and
    5. Conducting a continuing review, surveillance, and medical
evaluation of the labeling, clinical experience, and required reports
submitted by sponsors holding approved applications.
    In an effort to consolidate CDRH offices, FDA is moving various
CDRH offices from their present Rockville, Maryland locations to
Building 66 at 10903 New Hampshire Avenue in Silver Spring, Maryland.
Offices will progressively move, during weekends, during this period.
Specifically, moves will occur on Friday, Saturday, and Sunday except
on holiday weekends. During the period required for relocation of
files, equipment, and agency personnel, the agency, specifically the
Center for Devices and Radiological Health, will not officially receive
submissions on the Friday of a move weekend and the Monday after a move
weekend. Although mail will be delivered to a CDRH address during the
move, CDRH will not be able to receive it on Fridays and Mondays, and
will have limited capacity on Tuesday. Accordingly, mail delivered on
Friday or Monday will be logged in on a staggered basis to preserve
equity in the order of receipt and manageability of the accumulated
workload. Specifically, mail delivered on Friday or Monday will be
received on Tuesday and mail delivered on Tuesday will be received by
Wednesday. Mail delivered on Wednesdays and Thursdays will remain
unaffected.
    The new mailing address for submissions and updated telephone
contact information may be found by accessing www.fda.gov/cdrh/
whiteoakmove.

II. Comments

    Persons who may be affected by this temporary deferment should
contact FDA with any questions they may have regarding CDRH's move to
the White Oak, Maryland. These persons should call CDRH's Division of
Small Manufacturers, International, and Consumer Assistance at 800-638-
2041 (in Maryland,<PHONE_NUMBER>).

    Dated: May 13, 2009.
Daniel G. Schultz,
Director, Center for Devices and Radiological Health.

[FR Doc. E9-11840 Filed 5-20-09; 8:45 am]

BILLING CODE 4160-01-S


[Federal Register Volume 82, Number 102 (Tuesday, May 30, 2017)]
[Notices]
[Page 24773]
[FR Doc No: 2017-11061]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Agency Information Collection Activities: Requests for Comments;
Clearance of Renewed Approval of Information Collection: Automatic
Domestic and International Flight Plans

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice and request for comments.

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

SUMMARY: In accordance with the Paperwork Reduction Act of 1995, FAA
invites public comments about our intention to request the Office of
Management and Budget (OMB) approval to renew a previously approved
information collection. Flight plan information is used to govern the
flight of aircraft for the protection and identification of aircraft
and property and persons on the ground.

DATES: Written comments should be submitted by June 29, 2017.

ADDRESSES: Interested persons are invited to submit written comments on
the proposed information collection to the Office of Information and
Regulatory Affairs, Office of Management and Budget. Comments should be
addressed to the attention of the Desk Officer, Department of
Transportation/FAA, and sent via electronic mail to
<EMAIL_ADDRESS>or faxed to<PHONE_NUMBER>, or mailed to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, Docket Library, Room 10102, 725 17th Street NW.,
Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Ronda Thompson by email at:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    OMB Control Number: 2120-0026.
    Title: Domestic and International Flight Plans.
    Form Numbers: FAA Forms 7233-1 & 7233-4.
    Type of Review: Renewal of an information collection.
    Background: The Federal Register Notice with a 60-day comment
period soliciting comments on the following collection of information
was published on March 14, 2017 (82 FR 13709). There were no comments.
Title 49 U.S.C., paragraph 40103(b) authorizes regulations governing
the flight of aircraft. 14 CFR 91 prescribes requirements for filing
domestic and international flight plans. Information is collected to
provide services to aircraft inflight and protection of persons/
property on the ground.
    Public Comments Invited: You are asked to comment on any aspect of
this information collection, including (a) Whether the proposed
collection of information is necessary for FAA's performance; (b) the
accuracy of the estimated burden; (c) ways for FAA to enhance the
quality, utility and clarity of the information collection; and (d)
ways that the burden could be minimized without reducing the quality of
the collected information. The agency will summarize and/or include
your comments in the request for OMB's clearance of this information
collection.
    Respondents: Approximately 300,000 air carriers, operators and
pilots.
    Frequency: Information is collected on occasion.
    Estimated Average Burden per Response: 1-3 minutes.
    Estimated Total Annual Burden: 225,966 hours.

    Issued in Washington, DC, on May 24, 2017.
Ronda L. Thompson,
FAA Information Collection Clearance Officer, Performance, Policy &
Records Management Branch, ASP-110.
[FR Doc. 2017-11061 Filed 5-26-17; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 86, Number 39 (Tuesday, March 2, 2021)]
[Notices]
[Pages 12209-12217]
[FR Doc No: 2021-04240]

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

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2019-0004]

Gestamp West Virginia: Grant of Permanent Variance

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

ACTION: Notice of Permanent Variance.

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

SUMMARY: In this notice, OSHA grants a permanent variance to Gestamp
West Virginia from the provisions of the

OSHA standard that regulate the control of hazardous energy (lockout/
tagout).

DATES: The permanent variance specified by this notice becomes
effective on March 2, 2021 and shall remain in effect until OSHA
revokes this permanent variance.

FOR FURTHER INFORMATION CONTACT: Information regarding this notice is
available from the following sources:
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office
of Communications, phone:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>    General and Technical Information: Contact Kevin Robinson,
Director, Office of Technical Programs and Coordination Activities,
Directorate of Technical Support and Emergency Management, Occupational
Safety and Health Administration, U.S. Department of Labor; phone:
(202) 693-2110 or email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Copies of this Federal Register notice: Electronic copies of this
Federal Register notice are available at https://www.regulations.gov.
This Federal Register notice and other relevant information are also
available at OSHA's web page at https://www.osha.gov.

I. Notice of Application

    On July 30, 2018, OSHA received a variance application from Gestamp
West Virginia LLC (``Gestamp'' or ``the applicant'') from the provision
of the OSHA standard that regulates the control of hazardous energy
(``lockout/tagout'' or ``LOTO'') for their South Charleston, West
Virginia facility. Specifically, Gestamp sought a variance from the
provision of the standard that requires ``all energy isolating devices
needed to control the energy to the machine or equipment shall be
physically located and operated in a manner as to isolate the machine
or equipment from the energy source(s).'' (29 CFR 1910.147(d)(3)).
Gestamp also requested an interim order pending OSHA's decision on the
application for a variance (Document ID No. OSHA-2019-0004-0002).
    According to the application, Gestamp makes parts for the
automotive industry. Gestamp uses a Trumpf laser cell to trim excess
metal from automotive parts and burn holes into those parts. The laser
operates using a stream of monochromatic coherent light to emit very
high levels of energy to cut metal parts. The laser trimming process
occurs within a fully enclosed machine structure (cell), which contains
the laser that is mounted onto a multi-axis transport to allow the
laser to cut at a variety of angles; a turntable to load the rough
parts to be cut using the laser; a water chilling system used to cool
the laser; and numerous engineering controls that prevent unauthorized
access to the interior of the cell. When actuated, the turntable
rotates to the inside of the machine and presents the parts to the
laser. The laser system functions in a robotic manner, with axes of
motion to cut the metal parts. The laser is managed by a Human Machine
Interface (HMI), an interface by which the operator inputs commands to
and receives information from the laser cell machine.
    The laser trimming process creates a byproduct of chaff, dust,
dirt, chips, and slugs that must be cleaned from the machine enclosure
cell frequently to enable the laser to function properly. The cleaning
is performed by operators and/or maintenance personnel inside the cell
and involves sweeping up the byproducts and debris left on the floor of
the cell during the operation. These cleaning activities occur at the
end of each shift and typically require about 15 minutes to complete.
    Gestamp asserts that without frequent cleaning, the laser system
would not function properly. Further, the applicant asserts that while
the laser has the capability of being de-energized and isolated as
required by OSHA and ANSI standards, frequent powering down and locking
out of the laser greatly reduces the performance and overall life of
the laser because it takes anywhere from 30 minutes to several hours to
power back up after being completely shut down, which reduces the
efficiency of the laser. The applicant notes that powering down the
laser to perform cleaning activities requires the addition of auxiliary
lighting, which would involve the use of extension cords and portable
lights, potentially introducing fall and shock hazards. Additionally,
the applicant notes that the primary electrical disconnects are not
designed or intended for frequent cycling and would increase the risk
of arc flash hazards to employees.
    OSHA initiated a technical review of Gestamp's variance application
and developed a set of follow-up questions regarding the assertion that
the alternative measures provide equivalent worker protection. On March
15, 2019, Gestamp provided supplemental materials to support the
variance application including: A side by side analysis of the
requirement of the standard and the proposed alternative (OSHA-2019-
0004-0005), a safety work instruction outlining their proposed
alternative (OSHA-2019-0004-0004), and a description of Gestamp's
Lockout/Tagout Program (OSHA-2019-0004-0003). In reviewing the
application, OSHA evaluated the alternative energy control procedures
identified in the variance application and the supplemental materials
provided by Gestamp.
    OSHA reviewed Gestamp's application for the variance and interim
order and determined that they were appropriately submitted in
compliance with the applicable variance procedures in Section 6(d) of
the Occupational Safety and Health Act of 1970 (OSH Act, 29 U.S.C.
655(d)) and OSHA's regulations at 29 CFR 1905.11 (``Variances and other
relief under section 6(d)''), including the requirement that the
applicant inform workers and their representatives of their rights to
petition the Assistant Secretary of Labor for Occupational Safety and
Health for a hearing on the variance application.
    Following this review, OSHA determined that the applicant's
proposed alternative, subject to the conditions in the request and
imposed by the Interim Order, provides a workplace that is as safe and
healthful as those required by the OSHA standard. On August 5, 2020,
OSHA published a Federal Register notice announcing Gestamp's
application for a permanent variance, stating the preliminary
determination along with the basis of that determination, and granting
the Interim Order (85 FR 47422). OSHA requested comments on each.
    OSHA did not receive any comments or other information disputing
the preliminary determination that the alternative was at least as safe
as OSHA's standard, nor any objections to OSHA granting a permanent
variance. One comment was received (OSHA-2019-0004-0006) supporting
Gestamp's application. This comment did not require a response from the
agency. Accordingly, through this notice OSHA grants a permanent
variance subject to the conditions set out in this document.

II. The Variance Application

A. Background

    Gestamp's variance application and the responses to OSHA's follow-
up questions included the following: Detailed descriptions of the laser
cutting process; the equipment used in the laser cutting process; the
proposed alternative to completely isolating the laser during cleaning
activities; and technical evidence supporting Gestamp's assertions that
its alternative methods provide equivalent worker protection.
    According to the information included in the application, Gestamp's

laser is considered a Class 4 operation. Class 4 operations are defined
by ANSI as ``very dangerous to the eyes and skin, with a risk of fire
and explosion.\1\ No workers are allowed inside the laser cell while
the laser is being used. Instead, the operator's station is located
outside of the laser cell and the operator uses hand controls to
activate the laser turntable. The laser cutting system is a fully
enclosed structure, with the laser operating similar to a robot. The
laser is affixed to the end of arm tooling within this fixed structure.
Stamped parts are loaded into the cell and unloaded from the cell
structure via a turntable from outside of the laser cell. When
actuated, the turntable rotates to the inside of the machine and
presents the parts to the laser. The turntable cannot rotate until the
operator clears the light curtain, which is used as a safeguard
blocking access between the turntable and the operator's station.
---------------------------------------------------------------------------

    \1\ ANSI B11.21 and ANSI Z136.1
---------------------------------------------------------------------------

    As noted above, the laser trimming process creates a byproduct of
chaff, dust, direct, chips, slugs, and debris, and the laser system
must be cleaned to enable the laser to function properly. The laser
cell has access doors to enable cleaning and certain other necessary
tasks to be performed inside the cell. The access doors utilize
interlocked switches that disable hazardous motion of the turntable and
laser energy when opened.
    The machine enclosure of the Trumpf laser cell is protected by two
entry/exit points: A far access door and a near access door. Each
access door has an interlock switch that is integrated into the laser
and machinery motions. When the door to the laser cell is opened, the
release of laser energy is inhibited and the machine axes cannot move.
Further, Gestamp added red mechanical latches (hasps) to the external
side of each entry door that allow a lock or a group lockout hasp or
lock to be affixed, thus locking the hatch in its location.
    In addition, Gestamp has implemented procedures to prevent the door
from closing during laser cell cleaning activities, which could actuate
the system. Gestamp requires all personnel entering the laser cell to
individually lockout by placing their individual lock on the slide bar.
Each employee entering the laser cell must remove his own personal key
from his individual lock or hasp, take the key into the cell, and keep
the key in his possession the entire time he is in the laser cell. If
more than one employee enters the cell, one of the employees shall be
designated the Leader of the cleaning crew. The Leader can only remove
his lock after he has verified that everyone else in the cleaning crew
has left the laser cell.
    Gestamp contends that the alternative energy control procedures
included in the application provide the workers with a place of
employment that is at least as safe and healthful as they would obtain
under the existing provisions of OSHA's control of hazardous energy
(lockout/tagout) standard. Gestamp certifies that it provided employee
representatives of affected workers with a copy of the variance
application. Gestamp also certifies that it notified the workers of the
variance application by posting, at prominent locations where it
normally posts workplace notices, a summary of the application and
information specifying where the workers can examine a copy of the
application. In addition, the applicant informed the 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.

B. Variance From 29 CFR 1910.147(d)(3)

    As an alternative means of complying with the requirements of
1910.147(d)(3), Gestamp proposed to use a comprehensive engineered
system and appropriate administrative procedures. The applicant
referenced ANSI/ASSE Z244.1-2016, clause 8, which states that ``Lockout
or tagout shall be used unless the user can demonstrate an alternative
method will provide effective protection by persons. When lockout or
tagout is not used, then alternative methods shall be used only after
the hazards have been assessed and risks documented'' as the basis for
their alternative lockout method. Gestamp asserted in the variance
application that the cleaning task within the Trumpf laser cell is one
that requires access to the machine in a manner that renders full
lockout infeasible. Because the Trumpf laser cell is a Class 4
operation, no one is allowed inside the machine enclosure during laser
operations. Gestamp also asserted in the variance application that
because the cleaning task occurs on a frequent basis, regular powering
down and locking out of the laser to perform the routine cleaning
operations could damage the laser over time. Further, full lockout of
the laser cell requires the use of auxiliary lighting sources, which
could introduce fall and shock hazards into the cleaning operation.
Additionally, the design of the Trumpf laser cell includes advanced
control systems that prevent engagement of the laser while the laser
cell is occupied. As an alternative energy control procedure, Gestamp
has developed an engineered system that uses red mechanical latches
attached to the external side of each door of the laser cell. The
latches are secured to the frame of the machine with two metal screws
and have a locking capacity that allows a lock or a group lockout hasp
to be affixed; this latch prevents the door from closing and the laser
from being able to be energized during laser cell cleaning operations.
    Gestamp maintained that use of the proposed latch system provides a
level of safety equivalent to what can be achieved by strict compliance
with the standard at 1910.147(d)(3). According to Gestamp's variance
application, equivalent safety is achieved by prohibiting the release
of laser energy during cleaning operations utilizing a modified door
latch that prevents unintentional re-energization of the laser. In the
variance application, Gestamp provided the following step-by-step
details of the safety procedures to be followed prior to and following
cleaning activities:
Process To Enter Trumpf Laser Cell To Perform Cleaning Activities
    1. Communicate to the Operator and coworkers in the area that
cleaning will take place. At the Human Machine Interface (HMI) screen,
change the Series Production from ``Continuous Job'' to ``Single Job.''
Once the turntable has come to a complete stop, open one of the doors
on the side of the laser cell by using the handle.
    2. After the door is open, communicate the lockout to coworkers and
move the red slide bar to prevent the door from being shut while
inside. All personnel entering the laser cell must individually
lockout, by placing their individual lock on the slide bar or hasp. If
more than one person is to enter on either side, a lockout hasp must be
used.
    3. After locking out on the laser cell, verify that ``Feed Hold
Through Safety Device Error'' is displayed on the HMI screen.
    4. To verify that the turntable will not move while working inside
of the laser cell, hit the green activation button. Employees can enter
the laser cell only after these four (4) steps are completed.
    5. When work is completed inside the laser cell, all employees who
entered the cell, except the Leader when more than one employee
entered, shall exit and remove their individual locks. Once all other
employees are outside of the laser cell, the Leader must verify his
location and hit the Danger Zone Acknowledge Button on the inside of
the cell door. The Leader must immediately exit the cell, remove his

lock, move the slide bar back to allow the door to shut, and shut the
door.
    6. Once cleaning of the laser cell is complete and all employees
are clear of the restricted area, place the laser HMI back into
production by placing the Series Production from ``Single Job'' to
``Continuous Job'' by clicking the ``Continuous Job'' button.
    7. After the HMI has been released to production, press the green
button which resets the light curtains and causes the robot to place
the next part on the turntable.
Process To Restart Trumpf Laser Cell After Door Is Opened
    1. Remove all padlocks from mechanical latch from the far access
door.
    2. Open the mechanical latch.
    3. Visually inspect area for the presence of persons or tools.
    4. Close the far machine enclosure door.
    5. Walk to near access door.
    6. Remove all padlocks from mechanical latch from the near access
door.
    7. Open the mechanical latch.
    8. Visually inspect area for the presence of persons or tools.
    9. Press the reset switch on inside of the machine enclosure.
    10. Close the door within 3-4 seconds of pressing the reset switch.
    11. Turn the key switch on the HMI to enable operations.
    12. Engage HMI to activate laser.
    13. Enable continuous mode operation (push button) within HMI.
    The proposed door latch system cannot be easily defeated or
tampered with. Gestamp asserts that this alternative meets the
requirements for control reliability as stated in ANSI B11.0 and ANSI
Z244.1, in that no single fault of a component, wire, device or other
element will result in the loss of the safety function.\2\ According to
the variance application, in the event of a fault, the laser will
achieve a safe state by inhibiting lasing, machine motions, and the
release of hazardous energy. In addition, the system includes system
fault monitoring, tamper resistance, and exclusive employee control
over lockout devices. The Trumpf laser machine enclosure has a door
interlock switch that is integrated to the laser and machinery motions.
When the door to the laser cell is open, the release of laser energy is
inhibited and the machine axes cannot move; therefore the laser will
not operate.
---------------------------------------------------------------------------

    \2\ ANSI B11.0 defines control reliability as the capability of
the [machine] control system, the engineering control devices, other
control components and related interfacing to achieve a safe state
in the event of a failure within the safety-related parts of the
control system.
     ANSI Z244.1 defines control reliability as the capability of
the machine, equipment or process control system, the safeguarding,
other control components and related interfacing to achieve a safe
state in the event of a failure within their safety-related
functions.
---------------------------------------------------------------------------

    To enhance the lockout functions of the Trumpf laser cell, Gestamp
added red mechanical latches to the external side of each entry door to
the laser cell. The lockable interface switches used with the
mechanical latches are designed to be used as lockable devices. The
circuitry of the lockable interlock switches inhibit both machinery
motions and laser energy release with the Trumpf enclosure door
switches and will not operate when disengaged.

C. Technical Review

    OSHA conducted a review of Gestamp's application and the supporting
technical documentation. After completing the review of the application
and supporting documentation, OSHA concludes that Gestamp:
    1. Modified the access door with red mechanical latches with a
slide bar to prevent the door from being closed while cleaning
activities are performed within the laser cell;
    2. Installed a personal lock control system and implemented
administrative energy control procedures that prevent employee exposure
to hazards associated with energy while performing cleaning activities
within the laser cell;
    3. Performed a job hazard analysis for tasks associated with
cleaning the laser cell and conducted and documented an electrical
isolation analysis, system and functional safety reviews, and control
reliability analysis to verify that the use of the latch system and
administrative energy control procedures prevent the closure of the
doors to the laser cell, prevent mistaken or intentional re-
energization, and maintain immobility in the event of fault conditions;
    4. Developed detailed administrative energy control procedures for
entering the laser cell to perform cleaning functions and distinguished
these work procedures from other tasks that require full lockout;
    5. Implemented detailed administrative energy control procedures
designed to ensure that each authorized employee applies a personal
lock to the secondary group lock box;
    6. Made the administrative energy control policies and procedures
available to employees;
    7. Trained authorized and affected employees on the application of
the proposed alternative work practice and associated administrative
energy control policies and procedures; and
    8. Developed a LOTO procedure which includes administrative
controls to minimize the potential for authorized and affected
employees to enter the laser cell when harm could occur.
    After the technical review identified above, OSHA concludes that
Gestamp has established an alternative work practice that provides
workers protection equivalent to that required by the standard.
Specifically, the LOTO process for the Trumpf laser cell identified in
the variance application regulates the control of hazardous energy from
the laser during the maintenance task of cleaning.

III. Description of the Conditions Specified for the Permanent Variance

    As previously indicated in this notice, OSHA conducted a review of
Gestamp's application and supporting documentation. OSHA determined
that Gestamp developed and proposed to implement effective alternative
means of protection that provides protection to their employees ``as
safe and healthful'' as protections required within paragraph
1910.147(d)(4)(iii) of OSHA's LOTO standard during the maintenance task
of cleaning the Trumpf laser cell. Therefore, on August 5, 2020, OSHA
published a Federal Register notice announcing Gestamp's application
for a permanent variance and interim order, grant of an interim order,
and request for comments (85 FR 47422). The agency requested comments
by September 4, 2020. There was one comment received in response to
this notice in support of the application (OSHA-2019-0004-0006),
however this comment did not require a response from OSHA.
    During the period starting with the August 5, 2020, publication of
the preliminary Federal Register notice announcing grant of the Interim
Order until the agency modifies or revokes the Interim Order or makes a
decision on the application for a permanent variance, the applicant was
required to comply fully with the conditions of the Interim Order as an
alternative to complying with the requirements of paragraph
1910.147(d)(4)(iii). With the publication of this notice, OSHA is
revoking the Interim Order granted to the employer on August 5, 2020.
    This section describes the conditions that comprise the alternative
means of compliance with 29 CFR 1910.147(d)(4)(iii). Also, these
conditions provide additional detail regarding the conditions that form
the basis of the permanent variance OSHA is granting to Gestamp.

Condition A: Scope

    The scope of the permanent variance limits coverage to the work
conditions specified under this condition. Clearly defining the scope
of the permanent variance provides Gestamp, their employees, potential
future applicants, other stakeholders, the public, and OSHA with
necessary information regarding the work situations in which the
permanent variance applies. To the extent that Gestamp conducts work
outside the scope of this variance, it will be required to comply with
OSHA's standards.
    Pursuant to 29 CFR 1905.11, an employer (or class or group of
employers) \3\ may request a permanent variance for a specific
workplace or workplaces. When OSHA approves a permanent variance, it
applies 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, OSHA's grant of a permanent variance
applies only to the applicant, Gestamp, and only at the South
Charleston, WV plant and to no other employers or any other Gestamp
plant locations.
---------------------------------------------------------------------------

    \3\ 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.
---------------------------------------------------------------------------

Condition B: List of Abbreviations

    The following abbreviations apply to this permanent variance:

1. CFR--Code of Federal Regulations
2. JHA--Job hazard analysis
3. HMI--Human Machine Interface
4. OSHA--Occupational Safety and Health Administration
5. OTPCA--Office of Technical Programs and Coordination Activities

Condition C: List of Definitions

    The permanent variance includes definitions for a series of terms.
Defining these terms serves to enhance the applicant's and the
employees' understanding of the conditions specified by the proposed
permanent variance.
    1. Affected employee or worker--an employee or worker who is
affected by the conditions of this proposed permanent variance, or any
one of his authorized representatives. The term ``employee'' has the
meaning defined and used under the OSH Act (29 U.S.C. 651 et seq.).
    2. Competent person--an individual who is capable of identifying
existing and predictable hazards in the surroundings or working
conditions associated with the Trumpf laser cell that are unsanitary,
hazardous, or dangerous to employees, and who has authorization to take
prompt corrective measures to eliminate them.
    3. Energy isolating device--a mechanical device that physically
prevents the transmission or release of energy, including but not
limited to the following: A manually operated electrical circuit
breaker; a disconnect switch; a manually operated switch by which the
conductors of a circuit can be disconnected from all ungrounded supply
conductors, and, in addition, no pole can be operated independently; a
line valve; a block; and any similar device used to block or isolate
energy. Push buttons, selector switches, and other control circuit type
devices are not energy isolating devices.
    4. Group Lockout/Tagout Mechanism--any device or mechanism that
when used as part of a group LOTO system, permits each individual
employee to use his personal lockout or tagout devices (Group lockout
hasps or lockboxes that procedurally control equipment reenergization)
to physically secure energy isolating devices.\4\
---------------------------------------------------------------------------

    \4\ See 29 CFR part 1910.147(f)(3) Group Lockout/Tagout.
---------------------------------------------------------------------------

    5. Job hazard analysis--an evaluation of tasks or operations to
identify potential hazards and to determine the necessary controls.
    6. Leader--a single authorized employee who assumes the overall
responsibility for the control of hazardous energy for all members of
the group if more than one employee enters the Trumpf laser cell to
perform cleaning activities.
    7. Lockout--the placement of a lockout device on an energy
isolating device, in accordance with an established procedure, ensuring
that the energy isolating device and the equipment being controlled
cannot be operated until the lockout device is removed.
    8. Lockout device--a device that utilizes a positive means such as
a lock, either key or combination type, to hold an energy isolating
device in the safe position and prevent the energizing of a machine or
equipment.
    9. Personal lock and key--a durable, standardized substantial and
uniquely identified device (a lock) that is maintained and controlled
by a single authorized employee whose name is attached to the device.
The key is unique to the device and is equally maintained and
controlled by the authorized employee whose name is attached to the
device.
    10. Operator--a production operator responsible for performing
laser assembly operations pursuant to Gestamp company policies and
procedures.
    11. 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 or the work.
    12. Servicing and/or maintenance--workplace activities such as
constructing, installing, setting up, adjusting, inspecting, modifying,
and maintaining and/or servicing machines or equipment. These
activities include lubrication, cleaning or unjamming of machines or
equipment and making adjustments or tool changes, where the employee
may be exposed to the unexpected energization or startup of the
equipment or release of hazardous energy.
    13. Tagout--the placement of a tagout device on an energy isolating
device, in accordance with an established procedure, to indicate that
the energy isolating device and the equipment being controlled may not
be operated until the tagout device is removed.

Condition D: Safety and Health Practices

    This condition requires the applicant to: (1) Modify certain
controls at the entry door to the laser cell by ensuring that exclusive
control is provided to each employee involved in cleaning activities
within the machine, under the direction of the Leader who oversees
energy control operations during the cleaning activity; (2) utilize a
latch with a slide bar, designed to prevent the door from closing; (3)
ensure that opening the door of the laser cell shuts down the machinery
in the cell; and (4) adhere to the Group LOTO procedure in the Laser
Cleaning Work Instruction provided to OSHA with the variance
application.

Condition E: Steps Required To De-energize the System

    This condition requires the applicant to develop and implement a
detailed procedure for de-energizing the laser cell in order to perform
the maintenance task of cleaning within the laser cell. The procedure
for de-energizing the laser cell includes a series of steps to remove
the ability of the Trumpf laser cell to become energized before or
during the maintenance task of cleaning.

Condition F: Steps Required To Re-energize the Laser Cell

    This condition requires the applicant to develop and implement a
detailed procedure for re-energizing the laser cell in order to resume
normal laser cutting operations. The procedure for re-energizing the
laser cell includes a series of steps so that the Trumpf laser cell can
resume laser cutting activities when cleaning activities within the
laser cell are complete.

Condition G: Communication

    This 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 condition also requires the applicant to
ensure that reliable means of emergency communications are available
and maintained for affected workers and support personnel during laser
cleaning activities. Availability of such reliable means of
communications enables affected workers and support personnel to
respond quickly and effectively to hazardous conditions or emergencies
that may develop during laser cleaning operations.

Condition H: Worker Qualification and Training

    This condition requires Gestamp to develop and implement an
effective hazardous energy control qualification and training program
for authorized employees involved in cleaning activities in or around
the laser cell. Additionally, Condition H requires Gestamp to train
each affected employee on the purpose and use of the alternative energy
control procedures. All training must be provided in a language that
the employees can understand.
    The condition specifies the factors that an affected worker must
know to perform the maintenance task of cleaning inside the laser cell,
including how to enter, work in, and exit from the laser cell under
both normal and emergency conditions. Having well-trained and qualified
workers performing laser cleaning activities is intended to ensure that
they recognize, and respond appropriately to, electrical safety and
health hazards. These qualification and training requirements enable
affected workers to cope effectively with emergencies, thereby
preventing worker injury, illness, and fatalities.

Condition I: Inspections, Tests, and Accident Prevention

    Condition I requires the applicant to develop, implement, and
operate an effective program of frequent and regular inspections of the
laser equipment, electrical support systems, and associated work areas.
This condition will help to ensure the safe operation and physical
integrity of the equipment and work areas necessary to conduct the
maintenance task of cleaning in the Trumpf laser cell.
    This condition also requires the applicant to conduct tests,
inspections, corrective actions and repairs involving the use of the
energy isolation devices identified in the application for a permanent
variance. Further, this requirement provides the applicant with
information needed to schedule tests and inspections to ensure the
continued safe operation of the equipment and systems and to determine
that the actions taken to correct defects are appropriate.

Condition J: Recordkeeping

    Under OSHA's existing recordkeeping requirements in 29 CFR part
1904, Gestamp 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 electrical conditions by completing OSHA Form 301
Incident Report and OSHA Form 300 Log of Work Related Injuries and
Illnesses.

Condition K: Notifications

    Under this 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 cleaning activities around the laser cell;
(2) provide OSHA a copy of the incident investigation report (using
OSHA Form 301 Injury and Illness Incident Report) of these events
within 24 hours of the incident; (3) include on OSHA Form 301 Injury
and Illness Incident Report information on the 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 Charleston, West Virginia OSHA Area Office within 15 working
days should the applicant need to revise the procedures to accommodate
for any changes in the maintenance task of cleaning the Trumpf laser
cell that affect Gestamp's ability to comply with the conditions of the
permanent variance; (6) provide OTPCA and the Charleston, West Virginia
Area Office within 15 working days should the applicant need to revise
the energy isolation procedures to accommodate changes in the
application of the door switch that affect the ability to comply with
the conditions of the permanent variance; and (7) provide OTPCA and the
Charleston, West Virginia Area Office, by January 31 of each calendar
year, with a report evaluating the effectiveness of the alternative
energy control procedures in the previous calendar year.
    Additionally, Gestamp must 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 permanent variance to a successor company. In
addition, 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 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 permanent variance,
thereby ensuring the safety of workers involved in performing the
operations covered by the permanent variance.

IV. Decision

    As described earlier in this notice, after reviewing the proposed
alternative, OSHA determined that Gestamp developed, and proposed to
implement, effective alternative means of protection that protect its
employees as effectively as paragraphs 1910.147(d)(4)(iii) of OSHA's
LOTO standard during the maintenance task of cleaning the Trumpf laser
cell. Further, under section 6(d) of the OSH Act (29 U.S.C. 655(d)),
and based on the record discussed above, the agency finds that when the
employer complies with the conditions of the variance, the working
conditions of the employer's workers are at least as safe and healthful
as if the employer complied with the working conditions specified by
paragraph 1910.147(d)(4)(iii) of OSHA's LOTO standard. Therefore, under
the terms of this variance Gestamp must: (1) Comply

with the conditions listed below under section V of this notice
(``Order'') for the period between the date of this notice and until
the agency modifies or revokes this final order in accordance with 29
CFR 1905.13; (2) comply fully with all other applicable provisions of
29 CFR part 1910; and (3) provide a copy of this Federal Register
notice to all employees affected by the conditions using the same means
it used to inform these employees of its application for a permanent
variance.

V. Order

    As of the effective date of this final order, OSHA is revoking the
Interim Order granted to the employer on August 5, 2020 (85 FR 47422).
    OSHA issues this final order authorizing Gestamp West Virginia LLC
(``Gestamp'' or ``the applicant'') to comply with the following
conditions instead of complying with the requirements of paragraphs 29
CFR 1910.147(d)(4)(iii) of OSHA's LOTO standard during the maintenance
task of cleaning the Trumpf laser cell. This final order applies to all
Gestamp employees located at 3100 MacCorkle Avenue SW, Building 307,
South Charleston, West Virginia 25303.

A. Scope

    1. This permanent variance applies only to the maintenance task of
cleaning the Trumpf laser cell at Gestamp's South Charleston, WV,
establishment. This work is to be performed by authorized employees
under the alternative energy control procedures submitted to OSHA as
part of this application for a permanent variance.
    2. No other servicing and/or maintenance work, including electrical
maintenance (such as troubleshooting or maintenance covered under 29
CFR 1910.333), may be performed using the conditions of this interim
order. These activities are to be performed under full lockout as
required by 29 CFR 1910.147.
    3. Except for the requirements specified by 29 CFR 1910.147(d)(3),
Gestamp must comply fully with all other applicable provisions of 29
CFR 1910.147 during cleaning activities of the laser cell.
    4. The Interim Order granted to Gestamp on August 5, 2020 (85 FR
47422), is hereby revoked.

B. List of Abbreviations

    The following abbreviations apply to this permanent variance:

1. CFR--Code of Federal Regulations
2. JHA--Job hazard analysis
3. HMI--Human Machine Interface
4. OSHA--Occupational Safety and Health Administration
5. OTPCA--Office of Technical Programs and Coordination Activities

C. Definitions

    The following definitions apply to this permanent variance:
    1. Affected employee or worker--an employee or worker who is
affected by the conditions of this permanent variance, or any one of
his authorized representatives. The term ``employee'' has the meaning
defined and used under the OSH Act (29 U.S.C. 651 et seq.).
    2. Competent person--an individual who is capable of identifying
existing and predictable hazards in the surroundings or working
conditions associated with the Trumpf laser cell that are unsanitary,
hazardous, or dangerous to employees, and who has authorization to take
prompt corrective measures to eliminate them.
    3. Energy isolating device--a mechanical device that physically
prevents the transmission or release of energy, including but not
limited to the following: A manually operated electrical circuit
breaker; a disconnect switch; a manually operated switch by which the
conductors of a circuit can be disconnected from all ungrounded supply
conductors, and, in addition, no pole can be operated independently; a
line valve; a block; and any similar device used to block or isolate
energy. Push buttons, selector switches, and other control circuit type
devices are not energy isolating devices.
    4. Group Lockout/Tagout Mechanism--any device or mechanism that
when used as part of a group LOTO system, permits each individual
employee to use his personal lockout or tagout devices (group lockout
hasps or lockboxes that procedurally control equipment re-energization)
to physically secure energy isolating devices.
    5. Job hazard analysis--an evaluation of tasks or operations to
identify potential hazards and to determine the necessary controls.
    6. Leader--a single authorized employee that assumes the overall
responsibility for the control of hazardous energy if more than one
employee enters the Trumpf laser cell to perform cleaning activities.
    7. Lockout--the placement of a lockout device on an energy
isolating device, in accordance with an established procedure, ensuring
that the energy isolating device and the equipment being controlled
cannot be operated until the lockout device is removed.
    8. Lockout device--a device that utilizes a positive means such as
a lock, either key or combination type, to hold an energy isolating
device in the safe position and prevent the energizing of a machine or
equipment.
    9. Personal lock and key--a durable, standardized substantial and
uniquely identified device (a lock) that is maintained and controlled
by a single authorized employee whose name is attached to the device.
The key is unique to the device and is equally maintained and
controlled by the authorized employee whose name is attached to the
device.
    10. Operator--a production operator responsible for performing
laser assembly operations pursuant to Gestamp company policies and
procedures.
    11. 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 or, the work.
    12. Servicing and/or maintenance--workplace activities such as
constructing, installing, setting up, adjusting, inspecting, modifying,
and maintaining and/or servicing machines or equipment. These
activities include lubrication, cleaning or unjamming of machines or
equipment and making adjustments or tool changes, where the employee
may be exposed to the unexpected energization or startup of the
equipment or release of hazardous energy.
    13. Tagout--the placement of a tagout device on an energy isolating
device, in accordance with an established procedure, to indicate that
the energy isolating device and the equipment being controlled may not
be operated until the tagout device is removed.

D. Safety and Health Practices

    1. Gestamp must modify certain controls at the entry door to the
laser cell by ensuring that exclusive control is provided to each
employee involved in cleaning activities within the laser cell, under
the direction of the Leader who oversees energy control operating
during the cleaning activity;
    2. Gestamp must utilize a latch with a slide bar, designed to
prevent the door from closing;
    3. Gestamp must ensure that opening the door to the laser cell
shuts down the machinery in the cell;
    4. Gestamp must adhere to the Group LOTO procedure in the Laser
Cleaning Work Instruction provided to OSHA with the variance
application;
    5. Gestamp must implement the safety and health instructions
included in the manufacturer's operations manuals for

the Trumpf laser cell and the safety and health instructions provided
by the manufacturer for the operation of laser cutting equipment; and
    6. Gestamp must implement a procedure to ensure that no other
servicing and/or maintenance activities aside from cleaning will be
performed on the laser cutter, unless full lockout is used.

E. Steps Required To De-Energize the System

    Gestamp must implement a detailed procedure for de-energizing the
laser cutting machine that will consist of the following steps to
ensure that the laser cell door is prevented from closing and the
machine starting during cleaning activities within the laser cell:
    1. The authorized employee entering the laser cell will communicate
to the Operator and co-workers in that area that cleaning will take
place;
    2. At the HMI screen, the Operator shall change the Series
Production from ``Continuous Job'' to ``Single Job'';
    3. Once the turntable has come to a complete stop, the Operator
shall open one of the doors on the side of the laser cell by using the
handle;
    4. After the door is open, the Operator shall communicate the
lockout to his co-workers and move the red slide bar to prevent the
door to the laser cell from being shut while personnel are inside;
    5. All personnel entering the laser cell must individually lockout,
by placing a lock on the slide bar or hasp. If more than one person is
to enter on either side, a lockout hasp must be used;
    6. Each employee entering the cell must remove his own personal key
from the lock or hasp, take the key into the cell, and keep the key in
his possession the entire time he is in the cell;
    7. If more than one employee enters the laser cell, one of the
employees shall be designated the Leader of the cleaning operation;
    8. After locking out the laser cell, the Operator shall verify that
the ``Feed Hold Through Safety Device Error'' is displayed on the HMI
screen; and
    9. To verify that the turntable will not move while working inside
of the laser cell, the Operator shall hit the green activation button.
Entry is not to be made into the cell until the previous 8 steps have
been completed.

F. Steps Required To Re-Energize the Laser Cell

    Gestamp must implement a detailed procedure for re-energizing and
intentionally starting motion in the laser cutter in order to resume
normal operations at the conclusion of the cleaning operation. The
procedure for re-energizing the laser cell will consist of the
following steps:
    1. When work is completed inside the laser cell, all employees who
entered the cell, except the Leader (when more than one employee
entered), shall exit and remove their locks;
    2. The Leader/Solo Employee shall open the mechanical latch;
    3. The Leader/Solo Employee shall visually inspect the area for the
presence of persons or tools within the laser cell;
    4. Once all other employees are outside of the laser cell, the
Leader/Solo Employee must verify his location and hit the Danger Zone
Acknowledge Button on the inside of the cell door;
    5. The Leader/Solo Employee must exit immediately, remove his lock,
move the slide bar back to allow the door to shut, and shut the door.
The door must shut within 3-4 seconds of hitting the Danger Zone
Acknowledge Button. The 3-4 second limitation ensures that no one can
enter or re-enter into the machine enclosure between the visual
inspection and restart.
    6. Once the cleaning operation is complete and employees are clear
of the restricted area, the Leader/Solo Employee shall place the laser
HMI back into production by placing the Series Production from ``Single
Job'' to ``Continuous Job'' by pressing the ``Continuous Job'' button;
    7. After the HMI has been released to production, the Leader/Solo
Employee shall press the green button which resets the light curtains
and causes the robot to place the next part on the turntable; and
    8. Both entry doors to the laser cell must be closed before
operations can resume. An engineering control within the Trumpf laser
cell prevents engagement of the laser until both doors are closed.

G. Communication

    Gestamp must:
    1. Implement a system that informs workers using energy isolation
devices of any hazardous occurrences or conditions that might affect
their safety; and
    2. Provide a means of communication among affected workers where
unassisted voice communication is inadequate.

H. Worker Qualifications and Training

    Gestamp must develop and implement a detailed worker qualification
and training program. All training must be provided in a language that
the employees can understand. Gestamp must:
    1. Develop an energy control training program and train each
authorized employee on the latch system and the procedures required
under it;
    2. Develop and document a training program and train each affected
employee in the purpose and use of the alternative energy control
procedures using the latch system;
    3. Develop a training program and train other employees whose work
operations are or may be in an area where energy control procedures may
be utilized. These employees will receive training about the procedure
and about the prohibition relating to attempts to restart or reenergize
machines or equipment that are locked out;
    4. Ensure that each authorized employee, affected employee, and
other employees have effective and documented training in the contents
and conditions covered by this permanent variance and interim order;
and
    5. Ensure that only trained and authorized employees perform energy
control procedures for the task of performing cleaning of the laser
cell at Gestamp's facility.

I. Inspections, Tests, and Accident Prevention

    Gestamp must develop and implement a detailed program for
completing inspections, tests, program evaluations, and incident
prevention. Gestamp must:
    1. Ensure that a competent person (authorized employee) conducts
daily visual checks and monthly inspections and functionality tests of
the laser cell components and configuration or operation and energy
control procedures that ensure that the procedure and conditions of
this permanent variance and interim order are being followed;
    2. Ensure that a competent person conducts weekly inspections of
the work areas associated with the cleaning of the laser cell;
    3. Develop a set of checklists to be used by a competent person in
conducting weekly inspections of the energy control procedures used
while performing cleaning activities at the laser cell;
    4. Remove from service any equipment that constitutes a safety
hazard until Gestamp corrects the hazardous condition and has the
correction approved by a qualified person; and
    5. Maintain records of all tests and inspections of the laser cell,
as well as associated corrective actions and repairs, at the job site
for the duration of the variance. The maintenance, servicing, and
installation of replacement parts must strictly follow the
manufacturer's specifications,

instructions, and limitations, when that information is available.

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 in the case of injuries that result from cleaning the laser
cell, Gestamp must maintain records of all tests and inspections of the
energy control procedures, as well as associated hazardous condition
corrective actions and repairs.

K. Notifications

    To assist OSHA in administering the conditions specified herein,
Gestamp must:
    1. Notify all affected employees of this permanent variance by the
same means required to inform them of the application for a variance.
    2. Notify the OTPCA and the Charleston, West Virginia, Area Office
of any recordable injury, illness, or fatality (by submitting the
completed OSHA Form 301 Injuries and Illness Incident Report) resulting
from implementing the alternative energy control procedures of the
permanent variance conditions while performing the task of cleaning of
the laser cell, in accordance with 29 CFR 1904. Gestamp shall provide
the notification within 8 hours of the incident or 8 hours after
becoming aware of a recordable injury, illness, or fatality; and 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 must include a root-cause determination and the
preventive and corrective actions identified and implemented.
    3. Provide certification to the Charleston, West Virginia, Area
Office within 15 working days of any incident that Gestamp 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).
    4. Obtain OSHA's approval prior to implementing any changes to the
energy control operations that affects Gestamp's ability to comply with
the conditions of this permanent variance.
    5. Provide OTPCA and the Charleston, West Virginia, Area Office, by
January 31 at the beginning of each calendar year, with a report
evaluating the effectiveness of the alternative energy control
procedures in the previous calendar year.
    6. Notify OTPCA and the Charleston, West Virginia, Area Office as
soon as possible, but no later than seven (7) days after it has
knowledge, that it will:
    (i) Cease doing business;
    (ii) Have a new address or location for the main office, or
    (iii) Transfer the operations specified herein to a successor
company; however, this permanent variance cannot be transferred to a
successor company without OSHA approval.

VI. Authority and Signature

    Amanda L. Edens, Deputy Assistant Secretary of Labor for
Occupational Safety and Health, 200 Constitution Avenue NW, Washington,
DC 20210, authorized the preparation of this notice. Accordingly, the
agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2)),
Secretary of Labor's Order No. 8-2020 (85 FR 58393, Sept. 18, 2020),
and 29 CFR 1910.7.

    Signed at Washington, DC, on February 23, 2021.
Amanda L. Edens,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2021-04240 Filed 3-1-21; 8:45 am]
BILLING CODE 4510-26-P


[Federal Register Volume 86, Number 235 (Friday, December 10, 2021)]
[Notices]
[Pages 70548-70551]
[FR Doc No: 2021-26714]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93722; File No. SR-NSCC-2021-015]

Self-Regulatory Organizations; National Securities Clearing
Corporation; Notice of Filing and Immediate Effectiveness of a Proposed
Rule Change To Remove Mutual Fund Deposit Requirements and Remove
Certain Other Provisions Relating to Clearing Fund Requirements for
Limited Members From the NSCC Rules

December 6, 2021.
    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 December 2, 2021, National Securities Clearing Corporation
(``NSCC'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II
and III below, which Items have been prepared by the clearing agency.
NSCC filed the proposed rule change pursuant to Section 19(b)(3)(A) \3\
of the Act and subparagraph (f)(4) \4\ of Rule 19b-4 thereunder. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(4).
---------------------------------------------------------------------------

I. Clearing Agency's Statement of the Terms of Substance of the
Proposed Rule Change

    (a) The proposed rule change of National Securities Clearing
Corporation (``NSCC'') is annexed hereto as Exhibit 5 and consists of
modifications to NSCC's Rules & Procedures (the ``Rules'') \5\ to
remove the requirement that Members and Mutual Fund/Insurance Services
Members pay a Mutual Fund Deposit into the Clearing Fund relating to
Mutual Fund Services, remove provisions relating to the Mutual Fund
Deposit and the Insurance Deposit and remove a provision relating to
establishing a Clearing Fund requirement for NSCC Members \6\ that
currently do not have a Clearing Fund requirement. The proposed changes
are described in greater detail below.
---------------------------------------------------------------------------

    \5\ Capitalized terms not defined herein are defined in the
Rules, available at https://dtcc.com/~/media/Files/Downloads/legal/
rules/nscc_rules.pdf.
    \6\ Members and Limited Members are collectively referred to
herein as ``NSCC Members''.
---------------------------------------------------------------------------

II. Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change

    In its filing with the Commission, the clearing agency 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 clearing agency has prepared summaries,
set forth in sections A, B, and C below, of the most significant
aspects of such statements.

(A) Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change

1. Purpose
    The proposed rule change consists of modifications the Rules to
remove the requirement that Members and Mutual Fund/Insurance Services
Members pay a Mutual Fund Deposit into the Clearing Fund relating to
Mutual Fund Services, remove provisions relating to the Mutual Fund
Deposit and the Insurance Deposit and remove a provision relating to
establishing a Clearing Fund requirement for NSCC Members that
currently do not have a Clearing Fund requirement. The proposed changes
are described in greater detail below.
(i) Mutual Fund Deposit
    As part of its market risk management strategy, NSCC manages its
credit exposure to NSCC Members by determining the appropriate deposits
to the Clearing Fund and monitoring Clearing Fund's sufficiency, as
provided for in the Rules.\7\ The deposits to the Clearing Fund serves
as each NSCC Member's margin. The objective of an NSCC Member's deposit
is to mitigate potential losses to NSCC associated with a default by an
NSCC Member. Pursuant to the Rules, each NSCC Member's Clearing Fund
deposit amount consists of a number of applicable components, each of
which is calculated to address specific risks faced by NSCC, as

identified within Procedure XV.\8\ One of the required components is a
``Mutual Fund Deposit'' that is required to be paid by Mutual Fund/
Insurance Services Members and Members that use Mutual Fund Services
and which is intended to address risks relating to the use of Mutual
Fund Services.\9\
---------------------------------------------------------------------------

    \7\ See Rule 4 (Clearing Fund) and Procedure XV (Clearing Fund
Formula and Other Matters) (``Procedure XV''), supra note 5. NSCC's
market risk management strategy is designed to comply with Rule
17Ad-22(e)(4) under the Act, where these risks are referred to as
``credit risks.'' 17 CFR 240.17Ad-22(e)(4).
    \8\ Procedure XV, supra note 5.
    \9\ See Section 13 of Rule 4, supra note 5.
---------------------------------------------------------------------------

    Section 13 of Rule 4 requires that Mutual Fund/Insurance Services
Members and Members that use Mutual Fund Services each make a cash
deposit to the Clearing Fund, referred to as a Mutual Fund Deposit, in
the amounts determined in Procedure XV.\10\ Section I.(A)(4) of
Procedure XV requires that each Member that uses Mutual Fund Services
pay a Mutual Fund Deposit ranging from $5,000 to $20,000 based on the
amount of Mutual Fund Services settlement debits such Member has with
respect to any one Fund Member.\11\ Section I.(C) of Procedure XV
requires that each Mutual Fund/Insurance Services Member also pay a
Mutual Fund Deposit ranging from $5,000 to $20,000 based on the amount
of Mutual Fund Services settlement debits such Mutual Fund/Insurance
Services Member has with respect to any one Fund Member.\12\
---------------------------------------------------------------------------

    \10\ Id.
    \11\ Section I.(A)(4) of Procedure XV, supra note 5.
    \12\ Section I.(C) of Procedure XV, supra note 5.
---------------------------------------------------------------------------

    The risk that the Mutual Fund Deposit is intended to address is a
loss incurred by NSCC relating to a default by a Member or Mutual Fund/
Insurance Services Member using Mutual Fund Services. Mutual Fund
Services is a ``non-guaranteed'' service of NSCC, which means that NSCC
does not guarantee the payments at settlement for transactions
processed through Mutual Fund Services.\13\ In the event of an NSCC
Member default, transactions processed through Mutual Fund Services by
that NSCC Member may be reversed, including any credits owed to any
counterparties with respect to such transactions.\14\ Therefore, a loss
to NSCC could only occur with respect to transactions in Mutual Fund
Services if an NSCC Member defaults on payment, NSCC makes a decision
to proceed with settlement despite the default and pay the credits to
the counterparties and then subsequently NSCC is unable to recover the
funds from either the defaulting NSCC Member or the counterparties.
Such a situation is referred to as a ``double default''. NSCC put the
Mutual Fund Deposit requirement in place to address the remote risk of
loss related to a double default in connection with Mutual Fund
Services transactions.\15\
---------------------------------------------------------------------------

    \13\ See Addendum D of the Rules, supra note 5.
    \14\ Id.
    \15\ See Securities Exchange Release No. 26377 (December 20,
1988) (SR-NSCC-87-12), 53 FR 52546 (December 28, 1988).
---------------------------------------------------------------------------

    NSCC regularly assesses its margining methodologies to evaluate
whether margin levels are commensurate with the particular risk
attributes of each relevant product, portfolio, and market. In
connection with such reviews, NSCC has determined that the Mutual Fund
Deposit is not necessary to address the risks relating to transactions
in Mutual Fund Services by Members and Mutual Fund/Insurance Services
Members. The risk of an NSCC loss relating to Mutual Fund Services
transactions is remote. As discussed above, upon a default by a Member
or a Mutual Fund/Insurance Services Member related to Mutual Fund
Services transactions, for NSCC to incur a loss, NSCC would need to
make a decision to not reverse the Mutual Fund Services transactions
and pay the credits to the counterparties. While it is possible that
NSCC could make such a decision, for instance in order to minimize
operational risks and market impacts, it would likely only do so if it
was certain that it could recover the amounts of the credits it decided
to pay. In addition, since those payments can be reversed, once those
payments were made, NSCC could look to both the defaulting NSCC Member
and the counterparties that received the credit payments to recover
those losses. NSCC has never needed to use Mutual Fund Deposits to
recover a loss and has never incurred a loss relating to an NSCC Member
defaulting on Mutual Fund Services transaction payments.
    In addition, the amounts of the Mutual Fund Deposits no longer
correlate with most of the settlement amounts in Mutual Fund Services.
The current requirements for the Mutual Fund Deposits, from $5,000 to
$20,000, has not changed since the Mutual Fund Deposit was implemented
in 1988.\16\ In the remote circumstance where NSCC did incur a loss
relating to Mutual Fund Services, the amounts of the Mutual Fund
Deposits would not likely cover the amount of such losses.
---------------------------------------------------------------------------

    \16\ Id.
---------------------------------------------------------------------------

    Therefore, NSCC is proposing to remove the requirement that Members
that use Mutual Fund Services and Mutual Fund/Insurance Services
Members pay the Mutual Fund Deposit.
(ii) Mutual Fund Deposit/Insurance Deposit Provisions
    In addition to the provisions requiring Members and Mutual Fund/
Insurance Services to pay a Mutual Fund Deposit, Section 13 of Rule 4
contains provisions stating that Fund Members may be required to make a
Mutual Fund Deposit in accordance with Procedure XV and other
applicable Rules and Procedures.\17\ Section 14 of Rule 4 has a similar
provision stating that Insurance Participants may be required to pay an
Insurance Deposit in accordance with Procedure XV and other applicable
Rules and Procedures.\18\
---------------------------------------------------------------------------

    \17\ Section 13 of Rule 4, supra note 5.
    \18\ Section 14 of Rule 4, supra note 5.
---------------------------------------------------------------------------

    Section 13 of Rule 4 and Section 14 of Rule 4 also contain other
provisions relating to the use of the Mutual Fund Deposits and
Insurance Deposits, including loss allocation provisions relating to
the Mutual Fund Deposits and Insurance Deposits and provisions relating
to the return of the Mutual Fund Deposit or Insurance Deposit to a
Mutual Fund Participant or Insurance Participant, respectively, that
withdraws from membership.
    NSCC has never placed a requirement in Procedure XV for Fund
Members to pay a Mutual Fund Deposit or for Insurance Participants to
pay an Insurance Deposit. Section I.(D) of Procedure XV states that the
Clearing Fund Formula for each Fund Member, Insurance Carrier/
Retirement Services Member and those Mutual Fund/Insurance Services
Members who use Insurance & Retirement Services shall be established at
such time as NSCC deems appropriate, however, NSCC has never
established a Clearing Fund Formula for such NSCC Members.\19\ In
addition, NSCC currently does not plan to establish a Clearing Fund
Formula for such NSCC Members.
---------------------------------------------------------------------------

    \19\ See Section I.(D) of Procedure XV, supra note 5.
---------------------------------------------------------------------------

    NSCC believes that the provisions relating to whether it may
require an NSCC Member to pay a Mutual Fund Deposit or Insurance
Deposit and that it shall establish a Clearing Fund Formula for Fund
Members, Insurance Carrier/Retirement Services Members and Mutual Fund/
Insurance Services Members who use Insurance & Retirement Services are
unnecessary and may be misleading since NSCC currently has no plans to
establish such requirements. Given that NSCC would no longer be
requiring Members and Mutual Fund/Insurance Services Members to pay a
Mutual Fund Deposit and to avoid confusion relating to whether any
other NSCC Members would be required to pay a Mutual Fund Deposit or an
Insurance Deposit, NSCC is proposing to delete the provisions

relating to Mutual Fund Deposits, Insurance Deposits and statements
relating to whether NSCC shall establish a Clearing Fund Formula for
Fund Members, Insurance Carrier/Retirement Services Members and Mutual
Fund/Insurance Services Members who use Insurance & Retirement
Services.
(ii) Proposed Rule Changes
    NSCC is proposing to delete the definitions of Insurance Deposit
and Mutual Fund Deposit in Rule 1 and delete Sections 13 and 14 of Rule
4 to remove the provisions relating to Mutual Fund Deposits and
Insurance Deposits. NSCC is also proposing to delete Section I.(A)(4)
of Procedure XV to remove the requirement that Members that use Mutual
Fund Services pay a Mutual Fund Deposit and delete Section I.(C) of
Procedure XV to remove the requirement that Mutual Fund/Insurance
Services Members pay a Mutual Fund Deposit. NSCC would also delete
Section I.(D) of Procedure XV to remove the statement that NSCC shall
establish a Clearing Fund Formula for Fund Members, Insurance Carrier/
Retirement Services Members and those Mutual Fund/Insurance Services
Members who use Insurance & Retirement Services.
(iii) Implementation
    NSCC expects to implement the proposed rule changes on or prior to
January 31, 2022. As proposed, a legend would be added to Rule 1, Rule
4 and Procedure XV stating there are changes that became effective upon
filing with the Commission but have not yet been implemented. The
proposed legends would also state the date by which such changes would
be implemented, the file number of this proposal, that NSCC will issue
an Important Notice when the changes are implemented, and would state
that once this proposal is implemented the legend would automatically
be removed.
2. Statutory Basis
    NSCC believes that the proposal is consistent with the requirements
of the Act and the rules and regulations thereunder applicable to a
registered clearing agency. In particular, NSCC believes that the
proposed rule changes are consistent with Section 17A(b)(3)(F) of the
Act \20\ and Rule 17Ad22(e)(6)(i) under the Act.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------

    Section 17A(b)(3)(F) of the Act \21\ requires, in part, that the
Rules be designed to, among other things, remove impediments to and
perfect the mechanism of a national system for the prompt and accurate
clearance and settlement of securities transactions. The proposed
revisions are consistent with this provision because the proposed
revisions would remove a requirement to pay the Mutual Fund Deposit
that NSCC has determined is not necessary to mitigate potential losses
to NSCC associated with a default by an NSCC Member related to
transactions in Mutual Fund Services. Removing the requirement of the
Mutual Fund Deposits would allow Members and Mutual Fund/Insurance
Services Members to use Mutual Fund Services without having to incur
costs associated with making a Mutual Fund Deposit.
---------------------------------------------------------------------------

    \21\ Id.
---------------------------------------------------------------------------

    In addition, removing the references to the Mutual Fund Deposit and
the Insurance Deposit and the references to establishing a Clearing
Fund Formula for Fund Members, Insurance Carrier/Retirement Services
Members and Mutual Fund/Insurance Services Members who use Insurance &
Retirement Services would enhance the clarity of the Rules by removing
provisions that are unnecessary and potentially misleading. Having
clear and accurate Rules would help NSCC Members to better understand
their rights and obligations regarding NSCC's services.
    As such, NSCC believes the proposed rule changes are consistent
with Section 17A(b)(3)(F) of the Act.\22\
---------------------------------------------------------------------------

    \22\ Id.
---------------------------------------------------------------------------

    Rule 17Ad-22(e)(6)(i) under the Act \23\ requires that NSCC
establish, implement, maintain and enforce written policies and
procedures reasonably designed to cover its credit exposures to its
participants by establishing a risk-based margin system that, at a
minimum, considers, and produces margin levels commensurate with, the
risks and particular attributes of each relevant product, portfolio,
and market.\24\ NSCC has determined that the Mutual Fund Deposit is not
necessary to address the risks relating to transactions in Mutual Fund
Services by Members and Mutual Fund/Insurance Services Members. NSCC
has never incurred a loss resulting from a default by an NSCC Member
relating to transactions in Mutual Fund Services. In addition, for the
reasons discussed above, the risk of NSCC occurring such a loss is
remote and the amounts of the Mutual Fund Deposits are likely not
sufficient to cover any such loss if such an unlikely event were to
occur. Therefore, NSCC believes the proposed change is consistent with
Rule 17Ad-22(e)(6)(i) under the Act.\25\
---------------------------------------------------------------------------

    \23\ 17 CFR 240.17Ad-22(e)(6)(i).
    \24\ Id.
    \25\ 17 CFR 240.17Ad-22(e)(6)(iii).
---------------------------------------------------------------------------

(B) Clearing Agency's Statement on Burden on Competition

    NSCC does not believe that the proposed changes would have an
adverse impact, or impose a burden, on competition. These proposed
changes would remove a requirement to pay the Mutual Fund Deposit for
Mutual Fund/Insurance Services Members and Members that use Mutual Fund
Services and would be removing provisions relating to the Mutual Fund
Deposit and Insurance Deposit and clearing fund that NSCC believes are
not necessary. The proposed changes would not be adding any obligations
on NSCC Members that are using NSCC's services. As such, the proposed
changes would not impede any NSCC Members from engaging in the services
or have an adverse impact on any NSCC Members. Moreover, the proposed
changes may promote competition because the proposed changes could
enhance participation in Mutual Fund Services by removing the
obligation to pay a Mutual Fund Deposit.

(C) Clearing Agency's Statement on Comments on the Proposed Rule Change
Received From Members, Participants, or Others

    NSCC has not received or solicited any written comments relating to
this proposal. If any written comments are received, they will be
publicly filed as an Exhibit 2 to this filing, as required by Form 19b-
4 and the General Instructions thereto.
    Persons submitting comments are cautioned that, according to
Section IV (Solicitation of Comments) of the Exhibit 1A in the General
Instructions to Form 19b-4, the Commission does not edit personal
identifying information from comment submissions. Commenters should
submit only information that they wish to make available publicly,
including their name, email address, and any other identifying
information.
    All prospective commenters should follow the Commission's
instructions on how to submit comments, available at https://www.sec.gov/regulatory-actions/how-to-submit-comments. General
questions regarding the rule filing process or logistical questions
regarding this filing should be directed to the Main Office of the
Commission's Division of Trading and Markets at
[email protected] or<PHONE_NUMBER>.

    NSCC reserves the right not to respond to any comments received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) \26\ of the Act and paragraph (f) \27\ of Rule 19b-4
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such 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.
---------------------------------------------------------------------------

    \26\ 15 U.S.C 78s(b)(3)(A).
    \27\ 17 CFR 240.19b-4(f).
---------------------------------------------------------------------------

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 email to [email protected]. Please include
File Number SR-NSCC-2021-015 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NSCC-2021-015. This file
number should be included on the subject line if email 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 Commission's internet website (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 website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of NSCC and on DTCC's website
(https://dtcc.com/legal/sec-rule-filings.aspx). 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-NSCC-2021-015 and should be submitted on
or before January 3, 2022.
---------------------------------------------------------------------------

    \28\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-26714 Filed 12-9-21; 8:45 am]
BILLING CODE 8011-01-P