Posted by Greg Mossman on January 12, 2001 at 13:02:01:
In Reply to: Re: Nitrox and OSHA posted by MHK on January 12, 2001 at 06:08:21:
For more information, read the OSHA decision re: Dixie Divers at http://www.osha-slc.gov/FedReg_osha_data/FED19991220.html.
I think Dixie Divers may have been too hasty in their quest for an exemption which benefits only them. The resources spent on obtaining the exemption should have been pooled with resources from other dive shops and spent trying to clear up whether recreational diving instructors fall within the category of "commercial divers".
Please note that 29 CFR 1910.410 only applies to "diving operations" and further exempts certain specified types of "diving operations" from the regulations. I question whether recreational dives were meant to be included as "diving operations" which I understand to have a purpose beyond recreational training for entertainment. OSHA does not define "operation", but it seems pretty clear that OSHA means to regulate diving used as a means of accomplishing a commercial goal, not just diving for diving sake.
In another article, OSHA defines commercial dive operations as "off-shore oil rig and pipeline maintenance and repair; salvage operations; bridge and pier construction, inspection and repair; power plant intake and discharge construction, inspection and repair; ship and barge inspection and repair; dam construction, inspection and repair; scientific study; emergency response, investigation and recovery operations; and seafood harvesting and underwater agriculture." http://www.osha.gov/oshinfo/priorities/diving.html. Clearly recreation dive instruction is not even close to the occupations listed.
If OSHA would not consider recreation dive instruction to be a "diving operation" then the regulations do not affect employees engaged purely in recreation dive instruction. This is the tack I would take if I were arguing the case of a dive shop cited by OSHA for proving nitrox to its instructors, and I believe this is the tack that Dixie's attorneys should have taken.
Instead, by impliedly acknowledging in their exemption request that they fell within the scope of the commercial diving regulations, Dixie did a greater disservice to recreational dive instructors than if they had stayed out of the game.
OHSA is currently conducting an inquiry to determine whether the Dixie Divers variance should apply to other dive shops as well. If they decide to amend the regulations to include recreational dive instruction as a category of commercial diving operations, dive shops will be regulated as I believe they never were before. Note that the Dixie exemption does impose certain conditions on dive instructors such as the requirement that instructors carry a pony and use less than a 40% mix (forget about trimix).
"OSHA's Commercial Diving Operations standard (29 CFR 1910.401 to 1910.441) was published in 1977. In the intervening years, major changes in the technology of diving systems and equipment have occurred. In December 1999, OSHA granted a permanent variance to Dixie Divers, Inc. permitting recreational diving instructors employed by that company to comply with the provisions of the variance rather than with paragraphs (b)(2) and (c)(3)(iii) of 1910.423 and paragraph (b)(1) of 1910.426. Since granting of the variance, other employers of recreational diving instructors have asked OSHA to clarify the applicability of the variance to their operations. OSHA intends to issue a Request for Information to obtain data on the appropriateness of amending the commercial diving operations standard to reflect the alternative specified in the permanent variance granted to Dixie Divers, Inc."
http://www.osha-slc.gov/Reg_Agenda_data/2288.html