On July 15, 2020, the United States Court of Appeals, Fifth Circuit, filed its decision, holding that “dives made by aquarium staff members to feed animals housed at aquarium and to clean the facility’s tanks qualified as “scientific diving” within [the] meaning of [the] exemption,” and reversing OSHA’s order finding the opposite which was affirmed by an Administrative Law Judge.  Houston Aquarium, Inc. v. Occupational Safety and Health Review Commission, 965 F. 3d 433 (5th Cir. 2020).

The Court reviewed the relevant exemption as a matter of first impression.   It agreed with Houston Aquarium, that the dives in question met the regulatory definition of scientific diving.  OSHA’s safety requirements for diving employers includes standards for Commercial Diving Operations (CDO).  The CDO

‘applies to diving and related support operations conducted in connection with all types of work and employments, including general industry, construction, ship repairing, shipbuilding, shipbreaking and longshoring.’  29 C.F.R. § 1910.401(a)(2).

But there is an exemption to the CDO standards for “any diving operation … [d]efined as scientific
diving and which is under the direction and control of a diving program’ that includes a diving safety manual with minimum safety procedures and a controlling diving safety board.”

Scientific diving is 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.

OSHA, affirmed by an Administrative Law Judge focused only on the first part of the definition of “scientific diving” and found that the aquarium’s dives and found that the feeding and cleaning dives performed by aquaria staff did not fall within the exemption.

The Court, reviewing the facts about the dives in question in light of the entire definition of “scientific diving” found,

the activities performed during the feeding and cleaning dives fall within the plain text of the exemption. During feeding and cleaning dives, divers perform tasks such as scrubbing the exhibit windows free of algae, siphoning the gravel at the bottom of exhibits, and feeding the animals. Divers testified that one focus of cleaning dives is removing aiptasia, a genus of sea anemone that reproduces quickly and can ‘overrun’ the exhibits if not handled correctly. They also testified that if an animal needs to be captured or observed more closely, this would be done during a feeding or cleaning dive. The Aquarium’s expert witness Smith testified that during all Aquarium dives, including feeding and cleaning dives, the divers ‘are required to make observations of animal health, animal behaviors, the type of food they’re eating, the type of algae that grows on the windows, [and] the condition of the exhibitory,’ all of which Smith classified as the collection of data.

This is good news for aquaria, while not binding in other circuits, especially since OSHA has prohibited certain activities in other aquaria-related settings.