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Aquarium divers who feed, clean fall under OSHA exemption

Posted On: Jul. 16, 2020 12:14 PM CST

Houston Acquarium

Dives conducted by employees of the Houston Aquarium are “scientific diving” and fall under an exemption to the U.S. Occupational Safety and Health Administration’s commercial diving standard, the 5th U.S. Circuit Court of Appeals held in a decision filed Wednesday.

In Houston Aquarium Inc. v. Occupational Safety and Health Review Commission, the circuit court in New Orleans reversed an OSHRC ruling, holding that the aquarium’s divers should be considered exempt from the standard since “feeding and cleaning are a necessary component” of the aquarium’s scientific research.

In 2012, an OSHA inspector issued five citations with proposed penalties of nearly $20,000 to the Houston Aquarium, owned by Houston, Texas-based Landry’s Inc., after determining that divers who clean the tanks and feed the animals were not conducting scientific dives, and, as a result, those dives were subject to the more stringent commercial diving operations standard.  

An administrative law judge held that the dives conducted at the aquarium fell short of meeting the requirements of scientific diving because they were not “solely for the purpose of performing scientific research tasks,” but reduced the penalties to $4,500.

The OSHRC affirmed the administrative judge’s ruling in a 2-1 decision, and the aquarium appealed.

The circuit court reversed the OSHRC’s decision, ruling that the activities of feeding and cleaning fall “within the plain text of the exemption.” The court noted that the aquarium required divers completing these activities be trained scientists who are also required to observe animal health and behaviors, eating patterns and the types of algae growing in the tank, and to log this information upon completion of their dives.

The court also cited evidence that adding additional safety equipment required under the commercial diving operations standard would make the divers and animals “less safe” in an aquarium environment.

Because the purpose of the feeding and cleaning dives is to preserve the aquatic life in the aquarium, the court held that those divers did fall under OSHA’s commercial diving exemption and reversed the OSHRC decision.