Science Diving History - OSHA exempts AAUS

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For lack of a better home I'll post history stuff here for the time being.

Federal Regulation of Scientific Divers.

In December of 1976 and January of 1977 when public hearings were held by the Occupational Safety and Health Administration (OSHA) and the United States Coast Guard (USCG). These hearings were conducted in New Orleans, Louisiana to allow for comment on OSHA's Notice of Proposed Rulemaking (NPR) (41 FR 48950) which was published at the same time as the USCG's notice of hearing (41 FR 48969).

OSHA's proposed regulations covered all employees who might dive, not just commercial divers. Recreational diving instructors who worked for a dive shop were covered by the proposed regulation as were diving scientists.

At the New Orleans hearings the scientific diving community (SDC) was represented by Dr. Robert Given from USC, Dr. Glen Egstrom from UCLA and Mr. James Stewart from Scripps Institute of Oceanography. Despite the efforts of these experts the final OSHA standard (42 FR 37650) which was published 22 July 1977, and codified as Subpart T of 29 CFR Part 1910, did not exempt underwater scientists. It is interesting to note that OSHA did exempt recreational diving instructors. OSHA's rationale for exempting these instructors was that instructors were not exposed to the same hazards as commercial divers since, instructors have the choice of dive site and are rarely exposed to adverse sea states, temperature extremes, great depths, poor visibility or heavy workloads. In contrast, the USCG's NPR, which was issued on 10 November 1977 (42 FR 58712) included an exemption for Educational/Scientific diving.
The inclusion of diving scientists in a standard that was designed for commercial divers was felt to be inappropriate by the marine science community. It was repeatedly pointed out that the SDC had, for more than a quarter of a century, followed a consensual standard developed at Scripps in the early 1950s that with minor modification is still in use today.

The SDC supplied OSHA with data, analyzed by Dr. Egstom, that demonstrated that its safety record was slightly better than that enjoyed by bankers and that significant differences exist between diving scientists and commercial divers.

As a result of the new information provided by the SDC OSHA, on 17 August 1979, published an Advanced Notice of Proposed Rulemaking (APR) (44 FR 48274) asking for information on how their regulations were causing difficulty for the SDC. About half of the fifty or so responses to the APR were from individuals associated with educational institutions and all requested exemption from the regulation. Of the other half, the majority requested exemption of the entire SDC.

On 26 March 1982 OSHA put out an NPR (47 FR 13005) that would have created an exemption similar to the one that the USCG had allowed for diving performed by educational institutions. The NPR asked for answers to three questions which opened up the dialogue on diving performed by educational institutions.
These questions were:2

1. Should OSHA adopt the USCG standard which exempts any diving operation, performed solely for research and development or the advancement of diving equipment and technology?
2. Should OSHA exempt all scientific diving? If so, how should OSHA define those activities which constitute scientific diving?
3. Should OSHA only exempt scientific diving when such diving complies with an alternative standard which provides divers a comparable level of safety and health as OSHA's Subpart T standard?

More than 150 responses were received by OSHA to their APR, these were from educational institutions, private companies, public agencies, associations, the International Brotherhood of Carpenters and Joiners and interested individuals. These comments were filed in Docket H-103S at the Department of Labor.

The Carpenters Union opposed the idea of exemption and requested a hearing. They were especially concerned with the inclusion of noneducational segments of the scientific community in any exemption and proposed that OSHA's variance procedures be used on a case by case basis rather than grant an exemption to any portion of the scientific community.

OSHA scheduled an informal public hearing before the Hon. Edward C. Burch, an Administrative Law Judge. The hearing was held on 29 and 30 June 1982 in Washington, D.C. and it resumed on 7 and 8 July 1982 in Los Angeles. The SDC response to the three questions OSHA raised can be summarized as follows:
Adopting the USCG's exemption language would make for consistency between regulations of similar intent but the SDC could not support the use of the USCG exemption since it only exempts the educational sector of the Scientific Diving Community.

Mr. John Duffy, a member of the American Academy of Underwater Sciences (AAUS) Executive Committee and a biologist with the California Department of Fish and Game, summed up the confusion that this exemption would create:

If the exemption is not extended to include all scientific divers, I may be faced with a situation of having two members of a diving buddy pair, myself and a person from another institution, being controlled by two different sets of regulations. One, by a set of guidelines which has evolved continually during the past thirty years, the other by OSHA regulations which were designed for the commercial diving industry.

Dr. Richard Bell, the AAUS's Government Liaison, told OSHA:

... the exemption, of necessity must be extended to the entire scientific community. Our personnel have every right to expect to carry with them and propagate in environments outside the university the guidelines which have shaped their philosophy toward their underwater activities. They have every right to expect that their employers will allow them to continue to be the custodians of their safety programs. They should expect peer review of their operations by diving control boards and expect to be held personally accountable for their own safety and the safety of those they might be diving with. Further, they should also expect their colleagues to abide by the same high standards of safety.

Mr. James Stewart, the Diving Officer of Scripps Institute of Oceanography testified that:

... now it's really kind of dumb for me to have a State Park person right next door to me, or a university person right next door to me that I can't dive with, because we're ultimately doing the same things, underwater science, we're certified the same way.

Since the SDC felt that OSHA should exempt the entire scientific diving community, a definition of who was part of that community was needed. It was suggested that the following definition, written by the California Advisory Committee on Scientific and Technical Diving (CACSTD, the organization which evolved into the AAUS) be used:

All diving performed by employees necessary to and part of a scientific, research or educational activity in conjunction with a project or study under the jurisdiction of any public, private research or educational institution or similarly recognized departments or groups.

Mr. Peter Haaker of the California Department of Fish and Game suggested that the definition should:

... recognize the long standing tenet of scientific divers, the ability to refuse to dive for any reason whatsoever without fear of loss of compensation.

Mr. Haaker felt that this would, ... narrow the definition ... and seal a possible loophole.

Many other suggestions were made, the crux of the argument was how to construct a boundary that would precisely contain the individuals and institutions that abide by the tenets of the scientific diving community. Most suggestions called for the inclusion of additional criteria concerning the schooling, training and credentials of those doing the diving and requiring the use of the SDC consensual standards.
The third question OSHA advanced, that of requiring an alternative standard was roundly rejected.

Dr. Lee Somers, of the University of Michigan and President of the AAUS at the time, advised that:

We consider the issue of whether OSHA should exempt scientific diving when it complies with an alternative standard to be moot. From the abundance of evidence submitted over the past years, it should be clear that there was a highly developed standard of practice in existence. There is no shred of evidence that the SDC (scientific diving community) has been irresponsible in any way toward the health and safety of its members.

(continued)

 

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In his response to OSHA, Dr. Frank Rizzardi, Vice Chancellor of the California State Universities and Colleges wrote,

The scientific community has developed and been in conformance with safety standards based on the practical experiences of the divers themselves long before OSHA. Exemption from OSHA does not mean that the community will be without safety standards, for the scientific community will continue a long established practice which has resulted in a nearly perfect safety record. The self-imposed safety standards and procedures will continue to be regularly updated, revised and applied to specific geographical problems. This flexibility to meet technological changes and the special requirements of specific geographical areas must be retained by the scientific community. We feel that OSHA diving regulations (Subpart T) are not comparable to those of the scientific diving community for the purposes of the individual diver's safety and health.

Based on the input the SDC provided, OSHA concluded that:

• The tasks performed by commercial divers are different than those performed by scientific divers.
• The elements of the Scripps program are responsible for the scientific diving community's effective system of self regulation ... certain elements derived from the Scripps program must be followed to continue the scientific community's effective system of self regulation.
• This effective system of self regulation mitigates risks associated with scientific diving and, therefore, increased risks to scientific divers would not result if removed from coverage under Subpart T.
• A substantial basis exists in the record to exempt scientific diving from the standard for commercial diving operations.
• The definition of scientific diving should focus primarily on the types of tasks performed and the objectives to be attained.

On 26 November 1982 OSHA published an amendment to Part 1910 which exempted scientific diving,

... performed solely as a necessary part of a scientific, research, or educational activity by employees whose sole purpose for diving is to perform scientific research tasks. Scientific diving does not include performing any tasks usually associated with commercial diving such as: placing or removing heavy objects underwater; inspection of pipelines and cutting or welding; or the use of explosives.

To be exempt from Subpart T a program must use the Scripps model diving program with a diving safety manual that covers diving operations, procedures for emergency care and criteria for training and certification. The program must also have a Diving Control Board, with the majority of board members being active divers and with the authority to:

approve and monitor diving projects; review and revise the diving safety manual; certify the depths to which a diver has been trained; take disciplinary action for unsafe practices; and assure adherence to the buddy system for scuba diving.

The Carpenters Union the filed a sixty-eight page petition for review with the U.S. Court of Appeals.

The petition: challenges OSHA's November 26, 1982 administrative action withdrawing coverage of an existing occupational safety and health standard from employees exposed to significant hazards.

The petition went on to contend that the Secretary of Labor's action was unsupported by the record and inconsistent with the OSHA act of 1970 (29 USC 566(f)), and requested the court find the amendment to Subpart T invalid.

The AAUS filed, with the same court, an Amicus Curiae motion in support of the Department of Labor. OSHA's amendment to Subpart T was finalized when the 7th Circuit of the U.S. Court of Appeals denied the petition of The United Brotherhood of Carpenters and Joiners on the grounds that the union lacked standing to bring the suit. This was the first time a court denied a labor union standing in such a case.