April 23, 1982

Bob Sheats
TMCM USN (Ret)
21992 Highway 3 NW
Poulsbo, WA 98370

Dear Mr. Sheats:

I share your concern over the safety of divers as pointed out in your February 22, 1982, letter to our agency. The reason that OSHA originally developed standards to cover commercial diving operations was our determination that this industry involves significant hazards to employees. The promulgation and enforcement of the commercial diving standards is one way for OSHA to carry out its purpose of providing all workers with safe and healthful working conditions.

In Washington State, fatalities involving diving operations under our jurisdiction have been investigated and citations have been issued for violations of our standards. We have also conducted diving inspections in accordance with our scheduling system and in response to complaints. In addition, the Bellevue Washington Area Office has cooperated with the Washington State Department of Natural Resources in conducting inspections of hazardous conditions that are referred from that agency. A number of geoduck diving employers have been cited for violations of our safety and health standards.

On December 16, 1981, and March 1982, Continuing Resolutions which provided funding for OSHA through September 30, 1982, were passed. Attached to both resolutions was the "Byron Amendment" which exempts firms from programmed safety inspections for firms employing 10 or fewer workers which are included in SIC categories with lost workday injury rates lower than the national average for the private sector. The national average for the private sector for 1980, the most recent year published, is 3.9.

However, regardless of these exemptions, OSHA can still conduct inspections in exempted firms in order to investigate the following:

- potential health hazards

- imminent danger situations

- accidents that result in the death of an employee or the hospitalization of at least five employees

- complaints of job discrimination against workers who have exercised their rights under the Occupational Safety and Health Act of 1970, and

- employee complains of possible hazards (both safety and health), except that in the case of a complaint inspection involving safety hazards:

- penalties can be assessed only for willful violations found in such a complaint investigation;

- for serious and other-than-serious safety violations found in the course of a complaint inspection in an exempted firm, penalties can be assessed only if the violations in question had not been corrected within a reasonable period.

The Area Director for the Bellevue Washington Area Office is correct in stating that the Byron Amendment prohibits programmed safety inspections of commercial diving operations if the employer has 10 or fewer employees and that only employee complaints can be investigated.

During the past two years the Schweiker Amendment to OSHA's appropriations bill provided for similar prohibitions for inspections except that the Secretary could exempt firms from the prohibition if he determined that the firms were in activities involving very substantial occupational hazards. The Secretary determined that 12 industries, including commercial diving, did involve very substantial occupational hazards and therefore were exempt from the Schweiker Amendment. The Byron Amendment does not allow the Secretary the same discretion.

As long as the Byron Amendment is attached to our appropriations bill, the provisions discussed above must be adhered to by our agency. We regret that OSHA cannot be more responsive to your concerns. However, we do assure you that we will investigate any complaints from employees or their representatives concerning specific hazardous situations, imminent danger allegations, and accidents as defined by the rider in the diving industry in the State of Washington.

Sincerely,

Patrick R. Tyson
Director,
Federal Compliance and State Programs