Tek Instructors, D.I.R.R. and the OSHA Exemption

[John C. Ratliff]

Ladydiver, I'm not sure this is the appropriate place for this thread, but it's the best place I can find. If you feel it should be moved into the Instructor's Forum, please do so, but please also give me access (I wasn't able to gain access, or even to address this with the administrator via the forum paths that I found).

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My purpose here is to point out that the OSHA exemption from the Commercial Diving regulations for scuba instructors appears not to apply to Technical Diving Instructors. I testified in the Oregon hearings on the commercial diving regulations in 1978, and the instructional agencies (I was a member of NAUI) wanted to ensure that scuba instructors were not included in the commercial diving regulations. One other group, the scientific diving community, also did not wish to be included. But the two organizations went about it differently, and so today the scientific divers (under AAUS) have a much broader exclusion to the commercial diving regulations than do scuba instructors. Here are the exclusions:

§1910.401 SCOPE AND APPLICATION.
(a) Scope.

(1) This subdivision (standard) applies to every place of employment within the waters of the United States, or within any State, the District of Columbia, the Com-monwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Wake Island, Johnston Island, the Canal Zone, or within the Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act (67 Stat. 462, 43 U.S.C. 1331), where diving and related support operations are performed.

(2) This standard applies to diving and related support operations conducted in connection with all types of work and employments, including general industry, construction, ship repairing, shipbuilding, shipbreaking and longshoring. However,this standard does not apply to any diving operation:

(i) Performed solely for instructional purposes, using open-circuit, compressed-air SCUBA and conducted within the no-decompression limits;
(ii) Performed solely for search, rescue, or related public safety purposes by or under the control of a governmental agency; or
(iii) Governed by 45 CFR Part 46 (Protection of Human Subjects, U.S. Depart-ment of Health and Human Services) or equivalent rules or regulations estab-lished by another federal agency, which regulate research, development, or related purposes involving human subjects.
(iv) Defined as scientific diving and which is under the direction and control of a diving program containing at least the following elements:

(A) Diving safety manual which includes at a minimum: Procedures covering all diving operations specific to the program; procedures for emergency care, including recompression and evacuation; and criteria for
diver training and certification.
(B) Diving control (safety) board, with the majority of its members being active divers, which shall at a minimum have the authority to: Approve and monitor diving projects; review and revise the diving safety manual; assure compliance with the manual; certify the depths to which a diver has been trained; take disciplinary action for unsafe practices; and, assure adherence to the buddy system (a diver is accompanied by and is in continuous contact with another diver in the water) for SCUBA diving.

They also have the following definitions in the code:

“No-decompression limits”: The depth-time limits of the “no-decompression limits and repetitive dive group designation table for no-decompression air dives”, U.S. Navy Diving Manual or equivalent limits which the employer can demonstrate to be equally effective.

“Scientific diving” means 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 similar objects; construction; demolition; cutting or welding; or the use of explosives.

“SCUBA diving”: A diving mode independent of surface supply in which the diver uses open circuit self-contained underwater breathing apparatus.

The full Commercial Diving code can be viewed at:

http://www.cbs.state.or.us/external/osha/pdf/rules/division_2/div2_t.pdf

This is Oregon's version, but it is virtually identical to (with one exception, in the definitions) the federal code.

What does this mean? Well, to me it means that Tek diving instructors, and their schools, are not exempt from the OSHA Commercial Diving regulations. They are operating outside the specific exemption for diving instructors, and therefore need to comply with all the provisions in the code, including the provisions for qualifications for dive teams, a safe practices manual, and emergency procedures, including on-scene recompression capability in a recompression chamber for deep, decompression dives.

To my knowledge, this code has never been put into effect for Tek diving, and it probably won't either. But, what may happen is that an accident leads to an OSHA complaint, which then leads to an investigation, which will discover that the Tek diving instructors are outside the provisions of the OSHA scuba instructor's exemption, by the very nature of Tek diving.

What I'm trying to show here, before someone gets burned badly, is Tek diving instructiors/charters need to be Doing It Really Right (D.I.R.R., and yes, it is a play on the acronym). This includes making your profession legal before the regulatory agencies charged with overseeing workplace safety, Federal OSHA. It also includes making provisions for emergency procedures that can save lives, such as having an on-scene recompression chamber. If Tek divers are going to push the limits, they need an out other than to call the Coast Guard and await a helicopter for a rescue, which may well arrive too late.

SeaRat

 

[dc4bs]

(i) Performed solely for instructional purposes, using open-circuit, compressed-air SCUBA and conducted within the no-decompression limits;

Cool, according to that definition, teaching nitrox could get you in trouble too...

 

[pipedope]

Nitrox is also outside the exemption but Dixie Divers asked for and were given an exemption for nitrox and the way things are going is to extend that to all sport diving instruction.
You can ask OSHA for an exemption for your company if you want to cover yourself by having the paper in hand.

There is still no exemption and no tendency to give an exemption for any diving requiring staged decompression.

 

[Genesis]

Nitrox is also outside the exemption but Dixie Divers asked for and were given an exemption for nitrox and the way things are going is to extend that to all sport diving instruction.
You can ask OSHA for an exemption for your company if you want to cover yourself by having the paper in hand.

There is still no exemption and no tendency to give an exemption for any diving requiring staged decompression.

That could be ugly....

 

[GDI]

Some states have looked at a vocational lic for any person who holds what is called a professional classification in diving. They are also reviewing the possibilty of a state lic or c card for all divers within their jurisdiction and regulations for visiting divers. I wonder this would play into OHSA guidelines and are they possibly related. Quebec has instituted similar programs in the interest of diving safety, to ensure a common standard for all. Hmmm? Comments

 

[MikeFerrara]

It's my understanding that instructors teaching mixed gas and/or staged decompression diving do fall under the osha regs but...

Seldom is an instructor an employee. They are self employed independant contractors.

Also...recently I saw some regs concerning the mixing of gasses. I think it was here on the board some place also. Same deal. There isn't any way to follow those regs ans sell gas for under a grand per fill. LOL The solution is to not let an employee do the filling. When I had a shop it was easy because I couldn't afford an employee and I did all the teaching and filling. I just promised myself that I wouldn't sue me.

 

[rmediver2002]

More information on the proposed change, page three of this thread... There was a thread on the old board from last spring that was devoted entirely to this issue...

The older thread has the info on the compressor requirements for gas mixing Mike.

http://www.scubaboard.com/showthread.php?t=30317&page=3&pp=15&highlight=osha+proposed+change

Seldom is an instructor an employee. They are self employed independant contractors.

The problem here is that OSHA defines an employee:

http://www.osha-slc.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21454

In making a determination of employer/employee relationships, the Occupational Safety and Health Review Commission has held that the test to be used must consider the following factors: who is responsible for controlling the employee's activities; who has the power, as opposed to the responsibility, to control the employee; who has the power to fire the employee or to modify the employee's employment conditions; whom the employee considers to be his/her employer; and who pays the employee's wages

http://www.osha.gov/pls/oshaweb/owa...IONS&p_id=21454




Another item to consider is OSHA will be looking for an employer, in some cases this has been the captain of a ship who hired "subcontractor" commercial divers.

(more often than not commercial divers are hired as subcontractors, in such situations the person hiring the sub is considered the employer)

Example case file:
http://www.oshrc.gov/decisions/pdf_1998/96-1094.pdf
http://www.oshrc.gov/decisions/html_1980/77-4234.html
http://www.oshrc.gov/decisions/pdf_1996/93-3359.pdf
http://www.oshrc.gov/decisions/html_1997/93-3359.html


There are many areas (commercial fishing, videography, ships husbandry, etc.) that would be unsustainable if conducted in accordance with the regulations at the current rates. So commercial diver do not pursue them and often divers ignorant of the regulations are hired for less money to take their place.

I am sure we have all seen adds in the local dive shop for hull cleaning, golf balling, fishing vessel support (untangling nets...)

Part of the reason OSHA pursues the employer is that this type of thing can occur deliberately with some unscrupulous employers...


Jeff Lane

 

[Genesis]

You're probably ok on the IC deal provided that all of the following are true:

1. The student and you are COMPLETELY INDEPENDANT of the shop. That is, the shop receives NO renumeration from the class, except perhaps a percentage of the fee as a "commission", the shop has no control over scheduling, the shop cannot fire you as an instructor, etc.

2. The student pays the instructor directly for his/her services. You cannot, in all probability, run the billing through the shop and be "safe".

3. The instructor teaches in more than one location or affiliated with more than one shop, or teaches completely independant of ANY shop. That is, its not a "captive" arrangement (ala SSI's view of instructors.)

4. The instructor has his own, indepedant, liability insurance that is unconnected with the shop. Naming the shop as an indemnified party is probably ok, provided there is more than one named or there is a "blanket" indemnification of any shop one associates with for a specific class. Its probably easier to get a liability release from the student that specifies that there is no affiliation than to screw with the shops being named as additional insureds.

5. The instructor files his own SE taxes AND PAYS THEM.

If you do all of the above, you're PROBABLY safe, but I'd get both a tax and legal opinion on this from someone that you paid, because being wrong on either count could be really un-good.

I've done a LOT of contract work over the years as an IC, and I'm pretty-well versed in the requirements to remain in the "safe harbor" in that regard, but OSHA is an agency that is second only to the IRS in terms of government orgs you don't want to screw around with.

 

[pipedope]

Our saving grace is that we are under the radar and so don't get held to the standards.
Small companies are not subject to the random inspections and only employee complaints (or accidents) will get OSHA involved.

There is a lot of commercial diving being done outside of the standards and as long as people are not getting killed or maimed it will probably go on.
Lots of it is hardly diving at all.

The key is to be safe and be able to defend the techniques and procedures as safe (or safe enough) if it comes down to a test.

 

[Bob3]

... we are under the radar and so don't get held to the standards.
Small companies are not subject to the random inspections and only employee complaints (or accidents) will get OSHA involved.

There is a lot of commercial diving being done outside of the standards and as long as people are not getting killed or maimed it will probably go on.
Lots of it is hardly diving at all. ...

I've had a fair amount of interaction with OSHA over the years & I can confirm Pipedope's commentary.
Under "normal" conditions the feds dump matters onto the state's OSHA (if they have one) & conditions need to be pretty high profile before either will step in.
In short, having proper paperwork (SOPs, compressor/air testing records, etc) is a good insurance policy if the flies ever do hit the Westinghouse.
Tec training agencies / outfits as well as Public Safety Divers should take note of & follow the paper shuffeling requirements of the scientific diving community.

Here are a few articles from Underwater Magazine dealing with the subject:
http://www.diveweb.com/uw/archives/arch/uw-sp99.05.htm

http://www.diveweb.com/uw/archives/arch/mayjune00.05.shtml

http://www.diveweb.com/uw/archives/arch/uw-su98.01.htm

The author of the first article, Steve Butler, is OSHA's top dog for diving/maritime matters & his commentary can be taken as "official OSHA speak"