Why a Dive Charter is a Commercial Dive Boat..

[Dr. Lecter]

Wookie, I don't know about commercial diving, but I do know about statutory interpretation and admin law. Whether OSHA is preempted is an interesting question; I think your analysis is right, but I can see where Scubakevdm is getting confused.

USCG could promulgate regulations governing recreational diving from an inspected vessel. It has instead chosen to regulate only commercial diving and exempt recreational and certain other types of diving from those specific commercial diving regulations. So it seems like OSHA is not preempted because although the USCG has the authority to regulate, it has not exercised the authority, which is necessary for preemption to occur. Hence, he's saying USCG hasn't regulated the activity and it "falls through" into OSHA's regulations. Of course, all the other USCG regulations still apply to any activities on an inspected vessel, including any type of diving.

He's probably misreading the statutes, case law, and OSHA memoranda on this though, because it's clear that the question of whether OSHA has been preempted or not is only parsed carefully for uninspected vessels. For inspected vessels, even OSHA itself has recently said that all personnel on the vessel that qualify as seamen are exempt from regulation -- regardless of what they do. OSHA gives the following example that's highly analogous to a dive charter boat:

"A gaming or entertainment vessel that is inspected will have personnel that are U.S. Coast Guard-licensed or documented (such as masters, mates, engineers and crew) and personnel that are not licensed or documented (such as card dealers, entertainers, musicians, bartenders, and restaurant employees). Since the work of the inspected vessel includes gaming or entertainment, all personnel aboard whose work includes gaming or entertainment are considered to be seamen and are covered by the U.S. Coast Guard for purposes of safety and health."

 

[Wookie]

First of all, my perspective is also the business owner's perspective. Second of all, the dive flag law is a Florida state law and third of all, how do you figure you're excluded from OSHA because you're the owner? Who do you think gets the fine? And lastly how, after all of this excellent explaining is it possible that you still don't understand that a Pompano dive boat conducting instruction or guiding for money is not regulated as a commercial diving operation by the coast guard but is by OSHA? How can this be? I mean, you've even posted the standards that make the point! For God's sake guys, there's us a rule in the OSHA Commercial Diving Standards specifically addressing this situation.

I'm gonna get ip, walk all the way over there, sit down at the real computer an walk you through this one more time, and after that I'm done with this. After that point operate under your own assumptions at your own peril.

---------- Post added November 28th, 2012 at 07:27 PM ----------

Okay, here we go. Tell me at which point I'm losing you guys.

A dive boat, an inspected vessel, operating off of the Florida coast in the Pompano are has an instructor teaching or guide guiding for money.

1. Is this activity regulated as commercial diving operation by the US Coast Guard? No Why... because although the vessel is inspected, the Coast Guard Diving regs exclude all recreational diving and instruction thereof from the regs. Do we agree so far?

2. Do the OSHA commercial diving regs, in the absence any other of federal commercial diving regulations, have jurisdiction in waters up to three miles from shore in the Pompano area? Yes. How about now?

3. Do the OSHA Regs define teaching or guiding for money within the jurisdiction of the OSHA commercial diving regs while breathing any mixture of gasses other than air as commercial diving? Yes. Are we still in agreement at this point?

If so, my work is done here. If not, like I said, identify the area of contention and I'll post the supporting documentation.



---------- Post added November 28th, 2012 at 07:33 PM ----------



Whether or not there is a land based portion of the business doesn't matter at all to the commercial diving regs. Its a red herring.

No, and this is the part you're not getting. All activity that takes place on an inspected vessel is regulated by the Coast Guard. Coast Guard diving regulations do not exclude recreational diving, Coast Guard regs exempt recreational diving. Exclude and exempt don't mean the same thing.

Once recreational diving from inspected vessels is exempt from Coast Guard regulation, nothing else much matters, because OSHA cant apply to activities that take place on inspected vessels.

I don't need to fight either. My side is backed up by case law.

Of course the land based portion of a business is subject to OSHA. The exemptions only apply to what happens on an inspected vessel. What happens in the classroom, pool, etc. are not subject to Coast Guard jurisdiction.

---------- Post added November 28th, 2012 at 09:17 PM ----------

"A gaming or entertainment vessel that is inspected will have personnel that are U.S. Coast Guard-licensed or documented (such as masters, mates, engineers and crew) and personnel that are not licensed or documented (such as card dealers, entertainers, musicians, bartenders, and restaurant employees). Since the work of the inspected vessel includes gaming or entertainment, all personnel aboard whose work includes gaming or entertainment are considered to be seamen and are covered by the U.S. Coast Guard for purposes of safety and health."

And this is a big deal. It means that all personnel on a gambling boat are subject to Jones Act with all of its pitfalls for the vessel operator. That's why I threw in Workman's Comp earlier. My Jones Act insurance is significantly more expensive and offers fewer benefits than comparable Workman's comp. Woe be unto the inspected vessel owner who doesn't carry the insurance.

 

[Scubakevdm]

Well, it sure is strange that OSHA would include the Dixie Divers variance in the OSHA rule if it didn't apply. Oh well, I guess you know this stuff better than them. As promised, I'm done.

By the way, here's a commercial diving firm on the panhandle talking about regulation compliance.

http://www.rmediver.com/id37.html

 

[MarineResearch]

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

IJS

This post is worthless without pictures.

 

[Scubakevdm]

Oh yeah, and there's this:

Commercial diving jurisdictional guidance is available in the OSHA Region X Jurisdiction Guide, and can be complicated. The most important aspect of determining who has jurisdiction is based on where divers enter the water.
 If divers enter the water from a vessel or a boat, they are most likely under OSHA’s jurisdiction.
 If divers enter the water from the shore or a fixed structure like a pier or a dock, they are most likely under DOSH’s jurisdiction.


From here:http://www.lni.wa.gov/safety/rules/policies/pdfs/dd2285.pdf

Note that it is posted on Washington State's website, but it is in fact the federal OSHA instruction.

 

[Dr. Lecter]

Oh yeah, and there's this:

Commercial diving jurisdictional guidance is available in the OSHA Region X Jurisdiction Guide, and can be complicated. The most important aspect of determining who has jurisdiction is based on where divers enter the water.
 If divers enter the water from a vessel or a boat, they are most likely under OSHA’s jurisdiction.
 If divers enter the water from the shore or a fixed structure like a pier or a dock, they are most likely under DOSH’s jurisdiction.


From here:http://www.lni.wa.gov/safety/rules/policies/pdfs/dd2285.pdf

Note that it is posted on Washington State's website, but it is in fact the federal OSHA instruction.

You're quoting something that sounds good without understanding the context. The language you cite is part of a document designed to help a state agency's personnel determine whether they have jurisdiction (commercial diving related to entry from land in the state itself) or whether OSHA will have jurisdiction because they don't (commerical diving related to entry not from within the state itself, because it's off a boat within navigable waterways).

The OSHA Region X Jurisdiction Guide itself (Google will bring it up) states it's an informal, non-authoritative quick reference tool, and in any event it recognizes that OSHA has no authority over USCG inspected vessels at at least one point.

 

[Scubakevdm]

And this:

1. An owner, operator, agent or master of an inspected vessel may be cited for hazards to which non-seamen it employs are exposed if the hazard is not specifically subject to a particular regulation of the U.S. Coast Guard. The reporting of accidents by employers to OSHA is required for all situations where OSHA has geographical jurisdiction in accordance with 29 CFR Section 1904.8.

From Directives
CPL 2-1.20 - OSHA/U.S. Coast Guard Authority Over Vessels

Located here: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=1526&p_table=DIRECTIVES

---------- Post added November 28th, 2012 at 10:21 PM ----------

Are we done now?

 

[Dr. Lecter]

1. An owner, operator, agent or master of an inspected vessel may be cited for hazards to which non-seamen it employs are exposed if the hazard is not specifically subject to a particular regulation of the U.S. Coast Guard.

Right, but you haven't addressed the more recent OSHA guidance re: who on an inspected vessel is actually a seaman.

 

[Scubakevdm]

Let me go at this from a different angle. Why do you suppose that this rule exists in the OSHA Commercial Diving Operations Standards?

Appendix C to Subpart T of Part 1910 -- Alternative Conditions Under § 1910.401(a)(3) for Recreational Diving Instructors and Diving Guides (Mandatory)

 

[Dr. Lecter]

Because OSHA has jurisdiction over most recreational dive instruction and guiding employment -- just over not rec diving instructors/guides whose employment is limited to being seamen on a USCG inspected vessel.

If you have such an interest in validating your lay interpretation of the relevant statutes and other documents, why don't you ask OSHA to look into compliance on an inspected vessel that is conducting recreational diving operations? If you're right, they'll do so; if you're wrong, they'll tell you they have no authority to do so for all the reasons already cited to you. It's not exactly hard to get ahold of these guys' compliance divison.