Why a Dive Charter is a Commercial Dive Boat..

[Wookie]

Kevin, your premise regards diving. My premise is regarding boats. The fact that an inspected dive charter boat engaged in recreational diving is not engaged in commercial diving stands, and the crew of such a vessel is not subject to OSHA does too. But follow the OSHA regulations if it makes you feel better. Just don't tell the Coast Guard that you no longer need to follow their regulations and throw some Dixie Divers opinion in their face. Your apples are not my oranges.

By Coast Guard definition, inspected vessels engaged in commercial diving are classified as Oilfield Support Vessels, not as small passenger vessels, even if they otherwise meet the requirements of a small passenger vessel. Commercial divers are not considered crew, or passengers. They are workers, and therefore subject to conditions similar to OSHA.

 

[Scubakevdm]

Hang on, we're gonna be able to get there based on precedent.

So, your estimate is that the rule would be covering pools, lakes, shore dives and uninspected vessels.

Well, the rule above is the result of a variance originally requested by Dixie Divers LLC of Florida. The reason why they wanted the variance, was because the existing OSHA standards required that a chamber be on site (the diving location) if their dive guides and instructors dove nitrox. Hang on, switching back to the big computer

---------- Post added November 29th, 2012 at 12:26 AM ----------

If they dove air, there was no on site chamber required. Their argument was that with instructors and dive guides doing multiple dives a day it was far safer (at least as far as circumstances which an on site decompression chamber would mitigate), to do those dives on nitrox. In their application for this variance they specifically discuss diving in the ocean. Dixie Divers operates inspected vessels.

From the variation application:

The applicant operates 12 diving
schools; five of the schools are operated
directly by the applicant and seven of
the schools are franchise operations.
The applicant employs 34 recreational
diving instructors, who are highly
skilled and experienced divers, to train
novice divers in recreational diving
knowledge and skills. The same 34
employees also serve as diving guides
and lead groups of sports divers to local
diving sites for recreational purposes.
(The recreational diving instructors and
diving guides are also referred to
hereafter as ‘‘employees’’ or, more
generally, as ‘‘divers.’&#8217
As recreational diving instructors,
employees train recreational diving
students in conventional diving
procedures and the safe operation of
diving equipment. The diving students
may use an open-circuit, semi-closedcircuit,
or closed-circuit self-contained
underwater breathing apparatus
(SCUBA) with compressed-air or a highoxygen
breathing-gas mixture during
these training dives. The applicant’s
training program involves both
classroom instruction and practice dives
in which the employees accompany
diving students to ocean depths of zero
to 130 feet of sea water (fsw) for
durations that do not exceed established
no-decompression limits. During these
training dives, the diving instructors
provide underwater instruction in, and
allow the diving students to practice
using, diving procedures and
equipment. A diving instructor may
make as many as three to four training
dives a day while training diving
students either individually or in small
groups.
As diving guides, employees lead
small groups of trained sports divers to
local undersea diving locations for
recreaitonal purposes. The diving
locations are pre-selected by the diving
guide. The diving guide provides the
sports divers with information regarding
the diving site, including hazardous
conditions and safe practices. The
recreational diving groups consist of
sports divers who use open-circuit,
semi-closed-circuit, or closed-circuit
SCUBA with compressed-air or a highoxygen
breathing-gas mixture while
diving. In conducting these diving
excursions, the diving guide will dive
for periods that do not exceed
established no-decompression limits at
diving depths ranging from zero to 130
fsw. A diving guide may make as many
as five of these recreational diving
excursions a day.

So, if OSHA wasn't the authority responsible for this activity, why did they go through all of the trouble to approve, then codify the variance by issuing the final rule?

 

[Dr. Lecter]

You really don't understand the meaning of all that you're reading, do you?

These guys applied for a variance because they're not solely conducting their operations as seamen on a USCG inspected vessel. From the variance you're quoting:

"Dixie operates six diving schools, either directly or as franchises. The schools employ 18 skilled and experienced recreational diving instructors to train novice divers in recreational diving knowledge and skills. The same 18 employees also serve as diving guides and lead groups of sport divers to local diving sites for recreational purposes. (We also refer to recreational diving instructors and diving guides jointly as "employees" or, more generally, as "divers.")"

And:

"

The places of employment affected by this permanent variance are: Dixie Divers of Boca Raton, 8241 Glades Road, Boca Raton, FL 33434 Dixie Divers of Boynton Beach, 340 North Congress, Boynton Beach, FL 33426 Dixie Divers of Deerfield, 1645 Southeast 3rd Court, Deerfield Beach, FL 33441 Dixie Divers of Key Largo, 103400 Overseas Highway, Key Largo, FL 33037 Dixie Divers of Palm Bay, 4651 Babcock Street, Northeast, Palm Bay, FL 32905 Dixie Divers of Panama City, 109B West 23rd Street, Panama City, FL 32405

"

 

[Scubakevdm]

But follow the OSHA regulations if it makes you feel better. Just don't tell the Coast Guard that you no longer need to follow their regulations and throw some Dixie Divers opinion in their face. Your apples are not my oranges.

Well. the coast guard regs say I'm exempt from the coast guard regs, so I'm not sure how deep I could dig that hole. On the other hand, disregarding the OSHA regs that clearly address this by showing them a certificate of inspection might not go as smoothly. I would suggest that there are both apples and oranges in the fruit bowl.

---------- Post added November 29th, 2012 at 12:39 AM ----------

Ah, well, all addresses are actually on land. Just because you operate an inspected vessel doesn't mean the address is gonna be out in the middle of the ocean. Kinda seems silly for OSHA to have jurisdiction three miles off shore if that mattered anyway.

Also, since you acknowledge the validity of the variance, I would ask you how is what Dixie Divers was doing different than this? Training and Open Water Referrals with South Florida Diving Headquarters

 

[Dr. Lecter]

Sigh. It's like talking to a brick wall. Like I said, if you want to see if you're right, try to get OSHA compliance interested in the circumstances under discussion here. Let us all know what they say.

 

[Scubakevdm]

I'll go ahead and agree with you on the brick wall thing. Like I've posted, OSHA was interested enough in these circumstances to change the standards.

 

[Dr. Lecter]

But not to enforce them against anyone in the circumstances under discussion. Ever. Please, cite one example.

 

[Scubakevdm]

I swear, I'm posting all of these supporting documents and you guys just aren't reading them. No wonder it's like talking to a brick wall. From the proposed rule:Commercial Diving Operations - 68:1399-1414


In a letter dated February 4, 2000, Mr. Jeff Nadler, Vice President of the Professional Association of Diving Instructors Americas, requested guidance from OSHA regarding other employers of recreational diving instructors who complied with the conditions of the permanent variance granted to Dixie (Ex. 3-1). The Agency responded to Mr. Nadler on May 3, 2000, stating that it would consider such employers "to be in de minimis violation of the decompression-chamber requirements specified at paragraphs (b)(2) and (c)(3)(iii) of § 1910.423(b)(2), and paragraph (b)(1) of § 1910.426(b)(1)." OSHA noted that "[d]e minimis violations carry no penalties, do not require abatement and no citations are issued."

---------- Post added November 29th, 2012 at 09:45 AM ----------

So in coming back to your point, which I agree is correct, that really the $64,000.00 question is whether or not a guide/instructor is a seaman as defined by the coast guard. My money is on "no" by virtue of the fact that the second that they are lo longer working on board the vessel, they no longer meet the definition. Wookie's remark that even on vessels that we all agree are commercial diving vessels divers are not considered to be seamen supports this, as does the fact that OSHA spent the time and money to issue a change to their standards.

---------- Post added November 29th, 2012 at 09:51 AM ----------

Wookie, I understand your point regarding diving versus vessels, but the directive CPL 2-1.20 - OSHA/U.S. Coast Guard Authority Over Vessels clearly gives OSHA authority over inspected vessels. It does not diminish US Coast Guard authority, it is in addition to US Coast Guard authority, because the OSHA authority is only extended to activities not subjected to a particular Coast Guard regulation, in this case recreational instructing/guiding for profit.

 

[Dr. Lecter]

OSHA authority is only extended to activities not subjected to a particular Coast Guard regulation, in this case recreational instructing/guiding for profit.

That's the part you're not getting. The case I cited above says that on an uninspected vessel or where non-seamen are working on an inspected vessel, whether OSHA is preempted will depend on whether USCG regs squarely cover the activity in question. However, for seamen on an inspected vessel, there is no preemption inquiry - OSHA is conclusively preempted because USCG regs cover all aspects of health and safety regardless of what activity the seamen are engaged in. Dive guiding, bar tending, card dealing... doesn't matter. All USCG, no OSHA.

Again, from the 2010 OSHA directive cited before:

The U.S. Coast Guardhas statutory authority to prescribe and enforce regulations affecting the safety and healthof seamen aboard inspected vessels (See 46 CFR 90.05-1, including Table 90.05-1 fordescriptions of the categories of inspected vessels). The U.S. Coast Guard has issuedcomprehensive regulations for the working conditions of seamen on inspected vessels.Therefore, OSHA may not enforce the OSH Act (except for regulations dealing with therecording and reporting of occupational injuries and illnesses) with respect to anyworking conditions of seamen on inspected vessels.

If you're still confused, read the definition of "seaman" in that directive and elsewhere. You don't stop being one the moment you step off the ship.

 

[SC_Hoaty]

If you're still confused, read the definition of "seaman" in that directive and elsewhere. You don't stop being one the moment you step off the ship.

From your quote, however, it would seem that a seaman is no longer under USCG jurisdiction when they are no longer on an inspected vessel. They may remain a seaman, but if they trip over an extension cord in the office on land, and suffer an injury, would not OSHA investigate?

This seems to go along with Wookie's comment about only having shipboard operations, and nothing land based. This keeps it clean and simple.