Regulatory Assessments…

Regulatory control of diving operations conducted, as a condition of employment is an often confusing and jumbled area filled with pitfalls of misinformation, ignorance, misunderstanding, and in rare instances outright disregard for established procedures. These regulations, originally authored in a simpler time when far fewer individuals were utilizing diving operations, apply to a diverse group of individuals with an extremely varied agenda and methodology. Although diverse one commonality exists between these groups, within the United States of America they fall under the authority of OSHA or DOT regulations governing diving operations at a minimum. Individual state plans may vary but will in all cases meet the minimum requirements of the OSHA regulations.

The DOT (Coast Guard) regulation governing commercial diving operations is Title 46 Code of Federal Regulations (CFR) Part 197.

46 CFR 197 applies to commercial diving operations taking place at any deepwater port, from any artificial island, installation, or other device on the outer continental shelf (outside state jurisdiction), and from all vessels required to have a Certificate of Inspection (COI) issued by the Coast Guard.

The OSHA regulations governing commercial diving operations is Title 29 Code of Federal Regulations (CFR) Part 1910 subpart T. This regulation is applied to every place of employment within the waters of the United States, within any State jurisdiction, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Wake Island, Johnston Island, and the Canal Zone.   

The Occupational safety and health act of 1970 encourages states to create and control their own job safety and health programs and to date 24 states, Puerto Rico, and The US Virgin Islands have created independent programs that meet or exceed the OSHA minimum standards.

Federal agencies do not fall under OSHA authority, although under Presidential Executive Order 12196, federal agencies must maintain an effective safety and health program that meets the same standard as private employers. Federal agencies cannot be fined for violating health and safety standards, except for the U.S. Postal Service, which now falls directly under OSHA jurisdiction and is treated as a private employer.

The text of Presidential Executive Order 12196 reads “This order applies to all agencies of the Executive Branch except military personnel and uniquely military equipment, systems, and operations” The department of defense does not fall under either authority but is subject to military regulation. The US Navy Dive Manual and Army field manual 22-11 (an authorized reprint of the Navy manual) act as the guiding documents for military diving operations.

It seems the mere mention of OSHA when discussing diving operations can strike fear into the minds of those ignorant of the contents of the regulation. It is all to common for groups to dismiss the regulations as unpractical, expensive, or to restrictive and with that being the primary concern make the self assessment that any and all diving operations they conduct fall under one of the exemptions. Of course in reality most if not all groups will at times be working under a legitimate exemption and at other times be required to meet the commercial diving standards.

The first exemption listed within the OSHA regulation is “Diving performed solely for instructional purposes, using open-circuit, compressed-air SCUBA and conducted within the no-decompression limits”

A common misconception about this exemption is that any recreational diving falls under the exemption, this is false when discussing those whose function as an employee involve diving operations.

This exemption and failure to meet the specific requirements set forth in the exemption is without a doubt the most often violated portion of the regulation. At the time the regulation was developed the only groups using gas combinations other than air in any great quantities were the scientific, commercial and military diving communities. As technology has advanced and the use of mixtures other than air has become more accepted and accessible nearly every recreational SCUBA organization has begun conducting training with gas mixtures other than air as a general practice. The practice is in fact so common that OSHA now views the use of NITROX by employees (dive instructors and guides) as a de-minimis violation of the commercial diving standard, although a violation it is not subject to any fine or citation. Mixed gas, deep diving, decompression diving, and in some cases confined space diving instruction as a condition of employment (instructors and guides are one example) without meeting all conditions of the regulation is in violation of the commercial diving standard.

A proposed change based on the Dixie diver request for variance was proposed and a short public comment period was held earlier this year (Feb 2003). In large part the proposal allows an employee (diving instructor or guide) to utilize gases other than air, specifically oxygen-enriched air “NITROX” without meeting all of the commercial diving requirements (recompression chamber at the dive site).

Divers not receiving any form of compensation and performing dives as a recreational endeavor, not as a condition of employment do not fall under the commercial diving regulation regardless of depth, bottom time, equipment used, or gas mixtures used.

The next exemption to 29 CFR Part 1910 subpart T is diving operations “Performed solely for search, rescue, or related public safety purposes by or under the control of a governmental agency”

The common misconception applicable to this exemption is that any diving operation conducted by a public safety agency meets the requirements of the exemption. To meet the requirements of the exemption the project must be in support of search and rescue operations or direct support of such operations.

Some tasks assigned to public safety teams are clearly commercial in nature, most often though the tasks fall somewhere between commercial diving and the exemption leaving the onsite determination to the diving supervisor and the long-term (in the event of a casualty or investigation) assessment to an OSHA investigator.

An example of a typical response a PSD team could be exposed to would be a response to a vehicle submerged in a body of water. The initial response has the team onsite within 30 minutes, the team deploys divers under the exemption to search and if possible perform a rescue of the vehicle inhabitants. The divers find the vehicle and recover the casualty. At this point the dive supervisor has a recovery vehicle onsite and decides to attempt a recovery of the vehicle. This would be a commercial task, although the procedures and equipment used would not necessarily change the standards that must be met have. It is the responsibility of the diving supervisor to make these ongoing assessments and determine the ability of the team to respond in an appropriate manner. Depending on the training and equipment level of the team this can be a completely seamless transition from one form of diving to another with no break in procedure.

Volunteer organizations that receive no form of compensation for their efforts would not be classified as employees and would not be subject to the commercial diving regulation.

Another exemption under the OSHA regulation is for scientific diving and reads, “Diving defined as scientific diving and which is under the direction and control of a diving program containing at least the following elements:

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.

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.”

All requirements must be met for the exemption to apply. The most common misconception when discussing scientific diving is that a scientist, scientific organization, or an educational institution that performs any type of diving would fall under the exemption automatically. The OSHA definition for science diving reads “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.”

As is the case with Public Safety diving the onsite determination must be made by the diving supervisor. With proper training and equipment this can also be accomplished with a seamless transition from one portion of the regulation to another.

An example would be a team performing archeological research that in the course of their scientific research discover a heavy cannon on the bottom. The supervisor given the proper training and equipment can task the team to recover the object although this portion of the dive would be regulated as a commercial diving task and not one of science.

For any type of diving operation there is an exemption covering emergencies “An employer may deviate from the requirements of this standard to the extent necessary to prevent or minimize a situation which is likely to cause death, serious physical harm, or major environmental damage, provided that the employer:

“Notifies the Area Director, Occupational Safety and Health Administration within 48 hours of the onset of the emergency situation indicating the nature of the emergency and extent of the deviation from the prescribed regulations; and

Upon request from the Area Director, submits such information in writing.

Employer obligation. The employer shall be responsible for compliance with:

All provisions of this standard of general applicability; and

All requirements pertaining to specific diving modes to the extent diving operations in such modes are conducted.”

In all the cases discussed above the determination to conduct or not conduct a dive falls to the onsite supervisor and their interpretation of the regulations. Something often overlooked by individuals is the fact that the various modes of diving can be conducted by more than one group of divers. A scientist or engineer can also be a commercial diver provided the standards set forth in that portion of the regulation are met. Most who shudder at the thought of OSHA intervention have not invested the time or training necessary to read through and understand the regulations governing commercial diving, in most cases in fact the dive teams standards meet or exceed the majority of the regulation anyway as the regulations were drafted with the safety procedures of the time nearly 30 years ago. Many of those procedures are now common accepted practice outside of the commercial diving community.

As diving technology and techniques continue to evolve so must our practices and ultimately our regulatory bodies. To this end the Association of Diving Contractors has developed the Consensus Standard for Commercial Diving Operations. This document is continually in a state of revision and far easier to update with the latest technologies and safety procedures available than its federal counterparts. This reference meets or exceeds the OSHA and Coast Guard regulations for commercial diving operations and in addition to including the text of the regulations as appendixes the document provides one ready source of information for diving operations and management procedures. 

It again falls to the individual diving supervisor to research and educate themselves on the minimum standards applicable to each type of diving operation. It would be most appropriate at a supervisory level to take a stance that enforcement of the most stringent, safest, and current standards for diving operations and training is the minimum allowable standard for divers in your care…

http://www.osha.gov/SLTC/commercialdiving/  OSHA 29 CFR

http://www.osha.gov/fso/osp/index.html OSHA approved state plans