April 12, 1994

The Honorable William S. Cohen
United States Senate
Washington, D.C. 20515

Dear Senator Cohen:

This is in further response to your January 3^rd letter regarding the applicability of the Occupational Safety and Health Administration's commercial diving standard to the sea harvest industry. This response also provides amplification to the letter sent to you on February 7^th by Mr. John B. Miles, Jr., OSHA Regional Administrator, Region I.

You advised us in your letter that several individuals are concerned that a boat's captain is held responsible for the behavior of sea urchin divers and that OSHA has determined that a boat's captain is an employer of divers using the boat. By way of clarification, OSHA's position is that all boat captains are not necessarily employers in such situations since an "employer/employee" relationship must exist between the captain and divers involved. In making a determination of employer/employee relationships, the Occupational Safety and Health Review Commission has held that the test to be used must consider the following factors: who is responsible for controlling the employee's activities; who has the power, as opposed to the responsibility, to control the employee; who has the power to fire the employee or to modify the employee's employment conditions; whom the employee considers to be his/her employer; and who pays the employee's wages. The first three of these factors are related to the issue of who controls the work environment and are given particular emphasis in determining who is an employer under the OSH Act. Although an employee's belief as to who is his/her employer and the determination of who pays the employee's wages have some bearing on the employment relationship, these two factors are not directly related to the other issue of control and are given less emphasis in making an employment relationship determination. In summary, a boat captain would only be considered the employer if the captain has the power to exercise control over the divers.

Your letter also advised us that some individuals have stated that OSHA's safety standards for diving are not appropriate for Maine's sea urchin industry. In order for us to consider granting an exception from the diving standards for Maine's sea harvesting divers, we would require an application for a permanent variance are listed in 29 CFR Section 1905.11, a copy of which is enclosed. Any valid request for a permanent variance requires an alternate method, system, procedures, etc., which is as safe and healthful as the requirements of the standard from which the variance is sought.

The current Federal OSHA commercial diving standard (29 CFR Part 1910 - Subpart T) states that its provisions apply to diving and related support operations conducted in connection with all types of work and employment including general industry, construction, shipyard, and longshoring employments. The only exceptions are establishments primarily engaged in agricultural production, agricultural services, and forestry.

In response to your request for the status of OSHA's regulations for commercial diving, this standard became effective on October 20, 1977, was last modified on September 18, 1986, and is not currently scheduled on the regulatory agenda for any proposed revisions. The current OSHA commercial diving standard includes provisions for qualifications of divers, medical requirements, general operational procedures, scuba diving, surface-supplied diving, liveboating, equipment, and recordkeeping. Despite certain differences in operational applications and work techniques among various industry divers (e.g.; shipyards, oil fields, sea harvesters, power plants, bridge inspections), the commonality of the underwater environment and attendant similarity of work-related hazards necessitates a uniform set of requirements to which all commercial divers must adhere in order to ensure safe and healthful employment. Although the scope of this standard is broad, covering every diving operation, the specific provisions of the standard that apply to any particular employer depend upon the nature of the diving operation. Additional guidance on the application of the commercial diving standard can be found in OSHA Instruction [CPL 02-00-151], a copy of which is enclosed for your information.

We hope this information proves useful to you and your constituents. Your sincere interest in worker safety and health is appreciated.

Sincerely,



Joseph A. Dear
Assistant Secretary

Enclosures

[Corrected 11/23/2011]

January 3, 1994

Mr. Joseph Dear
Assistant Secretary
Occupational Safety and Health Administration
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Dear Mr. Dear:

Several people have recently contacted me to complain about OSHA's involvement in the regulation of sea urchin diving in Maine. Specifically, they are concerned that a boat's captain is held responsible for the behavior of sea urchin divers, who are considered self-employed for tax purposes. In essence, OSHA has determined that a boat's captain is an employer of divers using the boat.

Some Mainers are also complaining that OSHA's safety standards for diving are not appropriate for Maine's sea urchin industry, which is a completely different fishery than the fisheries for which the standards were originally developed. In fact, I understand that certain OSHA officials recognize that Maine's sea urchin industry is distinct from other fisheries, and as a result, OSHA may revise its standards for diving.

I would appreciate your comments on these matters and an update of the status of the regulations.

Please return your findings and views, in duplicate form, along with the enclosed correspondence to:

Senator William S. Cohen
Attention: Kelly Metcalf/Eben Adams
322 Hart Senate Office Building
Washington, D.C. 20510

Thank you in advance for your assistance.

Sincerely,

William S. Cohen