Why a Dive Charter is a Commercial Dive Boat..

[Scubakevdm]

And why OSHA Commercial Diving Regulations have authority

In response to remarks in another thread regarding a Pompano dive charter, I would like to demonstrate that recreational dive charters operating in the Pompano area are in fact operating within the jurisdiction of OSHA.

From EXCLUSIONS AND EXEMPTIONS FROM OSHA'S COMMERCIAL DIVING STANDARD ( http://www.si.edu/dive/pdfs/Butler.pdf )

Stephen Sea Butler
U.S. Department of Labor
OSHA Division of Maritime Compliance Assistance
( http://www.si.edu/dive/pdfs/Butler.pdf )
ISSUANCE OF ORIGINAL COMMERCIAL DIVING STANDARD
AND SCOPE OF OSHA'S STATUTORY JURISDICTION
On July 22, 1977 [42 F.R. 37650] the U.S. Department of Labor's Occupational Safety and Health
Administration issued final public notice of the adoption of a permanent diving standard which became
effective on October 20, 1977. OSHA's original diving standard, 29 CFR Part 1910 - Subpart T
"Commercial Diving Operations," established mandatory occupational safety and health requirements for
commercial diving operations. The standard applies wherever OSHA has statutory jurisdiction.
Consequently, diving in any natural or artificial inland body of water, as well as diving along the coasts
(State territorial waters) of the United States and possessions listed in Section 4(a) of the OSH Act [29
U.S. 655] is covered. For coastal States and territories, the State territorial waters extend 3 nautical miles
seaward from the coast line, except for the Gulf Coast of Florida and Texas where the territorial waters
extend for 3 marine leagues (approximately 9 nautical miles). For States bordering the Great Lakes and
St. Lawrence River, all waters in the Great Lakes and associated rivers up to the international boundary
line with Canada are State territorial waters

Next. I would like to identify that instruction is considered to be commercial diving by OSHA.

OSHA recognized that there was a big difference between hairy hard hat chopping up steel underwater commercial diving and teaching mask clearing in a pool commercial diving, and so issued an exclusion for "instructional diving which uses open-circuit compressed air scuba and is conducted within the no-decompression limits." Scuba instruction was no longer commercial diving.

ORIGINAL EXCLUSIONS FROM OSHA'S COMMERCIAL DIVING STANDARD
1. “Instructional diving utilizing only open-circuit compressed air scuba within the nodecompression
limits.”
OSHA concluded that a valid distinction existed between scuba diving instructors and commercial
divers which warranted an exclusion. The scuba diving instructor, who is an employee, is studentoriented,
not task-oriented. The dive site is not determined by the location of a particular job as it is in
commercial applications, where operations must of necessity be conducted under environmental
conditions which are often adverse. The scuba diving instructor, by contrast, selects a location which is
Lang and Baldwin (Eds.): Methods and Techniques of Underwater Research
40
usually clear, shallow and warm. Indeed, a swimming pool is the dive site for most scuba diving
instruction. Such dives are discontinued if the slightest difficulty occurs. Scuba diving instructors do not
utilize construction tools, handle explosives, or use welding or burning tools. As a result of these factors,
scuba diving instructors are rarely exposed to adverse sea states, temperature extremes, great depths, poor
visibility, or heavy work loads, some or all of which are common to the majority of commercial diving
operations. However, OSHA took into consideration that some diving techniques and conditions pose
greater potential hazards than others, regardless of the purpose of the dive. Thus, this exclusion for scuba
diving instruction was limited to a restricted diving range, a particular diving mode, and specific
equipment. The exclusion from the standard applies only to instructional diving which uses open-circuit
compressed air scuba and is conducted within the no-decompression limits. The standard defines nodecompression
limits as the depth-time limits of the "no-decompression limits and repetitive dive group
designation table for no-decompression air dives" of the U.S. Navy Diving Manual, or equivalent limits
which the employer can demonstrate to be equally effective. No distinction per se is made between
instructors of prospective recreational divers and instructors of prospective commercial divers. However,
by its very nature, the training for commercial divers involves diving that is surface-supplied, uses mixed
gas as a breathing gas, requires decompression, often involves adverse environmental conditions, or
involves the use of underwater tools and equipment; each of these factors potentially increases the hazard
of the operation. It is emphasized that when instruction exceeds the specified limits, the OSHA diving
standard applies. It is noted that individuals engaged in recreational diving for their own personal
enjoyment, and not otherwise related to their respective employments, are not within the jurisdiction of
the OSH Act, and therefore are outside the scope of OSHA's diving standard. On the other hand, scuba
diving for a commercial rather than instructional purpose is covered by the OSHA diving standard,
regardless of equipment or depth-time range.

The use of mixed gas even nitrox however, automatically kicked the instructor back in, and they were no longer excluded from the commercial diving standards and therefore were engaging in commercial diving operations. Most inconvenient to the law abiding dive operator, was that in this situation a recompression chamber was required, by the OSHA commercial diving the standards, to be on site. This was touched upon in the other thread.

If it remains unclear to the reader that the average dive charter is legally engaging in commercial diving operations by OSHA's commercial diving standards, read on! Because in 1999, Dixie Divers applied for and received a variance on the recompression chamber requirements- NOT an exclusion from the Commercial Diving Standards so that their staff could dive nitrox legally. This variance was later codified in a 2003 revision of the Commercial Diving Standard, proof positive that instruction or guiding for pay while breathing anything other than air constitutes Commercial Diving and falls under the authority of OSHA.

Below is an excerpt from the final rule, which can be viewed in its entirety here: (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=18073 )



On January 10, 2003, OSHA proposed to amend its Commercial Diving Operations ("CDO") standards to incorporate the terms and conditions of the Dixie Divers variance as an appendix to the CDO standards (68 FR 1399). The Agency now is issuing the final rule to amend the CDO standards based on this proposal. OSHA believes that this amendment enables recreational diving instructors and diving guides to extend their diving operations while minimizing their risk of DCS and AGE. The Agency concludes that the recreational diving instructors and diving guides covered by this amendment will receive a level of safety and health protection that is equivalent to recreational diving instructors and diving guides who have a decompression chamber located at the dive site during mixed-gas diving operations regulated under the CDO standards. Therefore, a decompression chamber near the dive site is unnecessary for the divers covered by this final rule.

A rule specifically addressing dive instructors and guides in OSHA's Commercial Diving Operation Standards born of another dive boat operating out of the very same inlet as the boat in the other thread? What more could you ask for? Well, I personally have engaged in commercial diving operations on the specific boat mentioned in the other thread by teaching on nitrox, and I've seen other guys do it too, so I'll throw that little cherry on top.

The moral of the story is before all you hard hat guys get all froggy and indignant that some divemaster dares to encroach on your commercial diving mystique, remember that we have rules too, and we're supposed to know them, and just because we're not getting medieval
on some valve 300 feet underwater doesn't mean that our jobs are not full of danger. While you may have to contend with underwater explosions and sperm whales, we have to deal with globs of other people's snot floating into our hair during mask removal skills. We each have our own crosses to bear.

 

[Ana]

Just for clarification not everyone working with hard hats are hairy.

IJS

 

[Scubakevdm]

I have seen pictures of you in a hard hat, I can attest to nothing beyond that though and will take you on your word!

 

[Wookie]

Not true. Recreational diving is specifically exempt from OSHA, and I have the legal and regulatory language to prove it. You are flat wrong. I only have my iPad, but I'll do my best to go there.

 

[jar546]

A small passenger vessel is a commercial vessel that is inspected by the United States Coast Guard. This boat may not have been involved in commercial diving but it is certainly a commercial vessel inspected by the United States Coast Guard.
Please let's not get legal terms and someone's pet peeve confused

 

[Superlyte27]

To the OP, you have clearly missed who these rules were aimed at. This has NOTHING to do with recreational charters.

OSHA, which I know you know, stands for Occupational Safety and Health Administration. A DM or an Instructor's occupation is protected by OSHA. However, if there were no DM's or Instructors on this boat, OSHA would not apply to a single PASSENGER on that boat. OSHA would get involved if the Captain or Mate got injured. Because while working at their occupation someone was injured. Worker's Comp would get involved too. But regardless, the USCG has full authority over every person (passenger, crew member or dm/Instructor) when it comes to injuries.

While this is a "commercial" operation because the purpose of the charter is engaging in commerce (to make money), this is NOT a commercial dive boat. But who cares. And really, I didn't care until you posted the nonsense above.

 

[Wookie]

Not true. Recreational diving is specifically exempt from OSHA, and I have the legal and regulatory language to prove it. You are flat wrong. I only have my iPad, but I'll do my best to go there.

Commercial diving regulations as far as the Coast Guard go fall under 46 CFR subpart B, Commercial Diving. Reading the applicability section of 46 CFR 197.202 might make a charter boat operator a little nervous, especially where it says "...This subpart applies to commercial diving operations taking place at any deepwater port or the safety zone thereof as defined in 33 CFR part 150; from any artificial island, installation, or other device on the Outer Continental Shelf and the waters adjacent thereto as defined in 33 CFR part 147 or otherwise related to activities on the Outer Continental Shelf; and from all vessels required to have a certificate of inspection issued by the Coast Guard including mobile offshore drilling units regardless of their geographic location, or from any vessel connected with a deepwater port or within the deepwater port safety zone, or from any vessel engaged in activities related to the Outer Continental Shelf..." and you'd say "Crap, man, that's not what the inspector told me", until you read it a little closer, especially the part where it says "...This subpart applies to commercial diving operations..." and you say phew, that lets me out, because, you see, The definition of commercial diving includes the following statement: "Commercial diver means a diver engaged in underwater work for hire excluding sport and recreational diving and the instruction thereof."

So, the current regulations state that commercial diving specifically exempts sport and recreational diving and the instruction thereof, regardless of depth and gear type. Now, recreational and sport are not further defined in the Coast Guard regulations, but I (and my lawyer) have made the case that if you aren't doing research, and you aren't being paid, you aren't a commercial diver.

So, how does this exempt me from OSHA? well, lookie here: OSHA UPDATE ( I know that this isn't an OSHA link, but if you want a copy of the actual MOU, I'll drag it out for you)

Which says, in part, "OSHA defines its jurisdictional boundaries within a state to include its territorial waters which extend three nautical miles from the coastline, except in the Gulf of Alaska where the territorial waters extend three marine leagues or approximately nine miles (Seattle Regional Instruction CPL 2.6A dated August 12,1992).
The scope of the Act, however, was limited by Section 4(b) (1), (29 USC 653 (b)(1)), which states: "Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal Agencies…exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health."

Thus in the case of vessels, OSHA would have jurisdiction if there is one employee, the vessel was within the geographic area of jurisdiction, and no other federal agency had preempted them under the 4(b)(1) section."(All 3 cases must apply for OSHA to be in effect)


The Coast Guard is another federal agency which may exercise occupational safety and health jurisdiction and thereby preempted OSHA on vessels. Note that before preemption occurs, another agency not only needs to have jurisdiction, but must exercise that jurisdiction. At this point, several definitions must be understood,. An "inspected vessel" means one that the Coast Guard has inspected and has issued a current Certificate of Inspection. The routine boarding of a vessel by the Coast Guard to assure compliance with certain laws does not make the vessel an "inspected vessel". Common classes of vessel normally "inspected" are passenger vessels carrying more than six passengers, tankers, and cargo vessels."

...and more importantly, goes on to say: In order to clarify the regulatory status of some vessels, OSHA and the Coast Guard entered into a Memorandum of Understanding (MOU) published in the Federal Register, Vol. 48, No. 54, March 18, 1983. This MOU acknowledged that the Coast Guard had preempted OSHA with respect to "inspected" vessels. It did not address "uninspected" vessels although by their omission, it can be read that this class of vessels remains under OSHA jurisdiction."

What this means to me is that inspected vessels are specifically exempt from the regulations of OSHA by MOU signed between the Coast Guard and OSHA. I don't fall under OSHA. I fall under Coast Guard. Coast Guard regulations specifically exempt recreational and sport diving without definition and without regard to depth and gear type.

That's why OSHA and Coast Guard regulations for commercial diving don't apply to inspected charter dive boats.

​

 

[jar546]

. Small Passenger Vessel (less than 100 GT)Small Passenger Vessels (SPVs) less than 100 GT are regulated in 46 CFR Subchapter T and are allowed to carry more than 6 but no more than 150 passengers, at least one of whom is for hire. Subchapter T vessels are also limited to 49 or less passengers overnight. The U.S. Coast Guard formally inspects these vessels for safety and seaworthiness and issues a Certificate of Inspection to those vessels that successfully pass the inspection. There may be no "typical" example of this large class of vessel. Examples range from inflatable dive boats, submarines, aluminum crew boats, ferries, wooden charter fishing boats, and various types of sailing vessels.

. Commercial vessels come in a myriad of sizes and shapes from twenty-foot inflatable dive boats in Hawaii, to 5,000 passenger casino vessels on the Mississippi River, to 1,000 foot oil tankers and container ships at our major ports, to a passenger carrying submarine in the U.S. Virgin Islands. The Coast Guard is responsible for ensuring commercial vessel safety in the U.S. and has divided commercial vessels into various classes. These classes of vessels are divided by type of service and regulated under different subchapters in Chapter 46 of the Code of Federal Regulations (CFR). Examples of types of service include: Tankship; Cargo Vessel; Research Vessel; Offshore Supply Vessel; and Passenger Vessel. Gross Tonnage and numbers of passengers further classify passenger-carrying vessels.

commercial diving? Probably not. Commercial vessel? You betcha!

 

[Superlyte27]

Thanks for doing the cut and pasting for me Wookie. You handled it nicely.

 

[Wookie]

Kevin, you are arguing diving while I am arguing boats. I won't argue that a dive instructor or DM inland or on an uninspected passenger vessel is subject to OSHA while on nitrox or other mixed gas, or even air, but once they get on an inspected vessel, they fall under USCG, and USCG is much more liberal in their interpretation of what a recreational or sport diver is.