WSR 14-21-158

PROPOSED RULES

[Filed October 21, 2014, 4:16 p.m.]

Supplemental Notice to WSR 14-09-107.

Preproposal statement of inquiry was filed as WSR 14-05-098.

Title of Rule and Other Identifying Information: Geoduck diver safety program, effective January 1, 2015, all commercial wildstock geoduck divers participating in the state managed fishery are required to annually demonstrate proof of compliance with the geoduck diver safety program to be maintained on a department of natural resources (DNR) harvest plan of operations and/or obtain a commercial diver license under RCW 77.65.410. Proposed safety requirements include a combination of training qualifications and medical requirements. Training qualifications include CPR/first aid certification, emergency oxygen administration certification, Washington state boater education card, and an annual review of the fundamental principles of dive safety. Medical requirements include a physical examination. The proposed rule has been revised from the original proposal (WSR 14-09-107) based on the comments received during public hearings. Important changes include: (1) The hyperbaric component of the physical has been removed; (2) the frequency of the medical requirement has been reduced from annual to every three years; and (3) a year long deferment of medical requirements to account for temporary physical impairments.

Hearing Location(s): Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA 98504, on November 25, 2014, at 6:00 p.m.

Date of Intended Adoption: December 2, 2014.

Submit Written Comments to: Matthew Goehring, DNR, 1111 Washington Street S.E., Mailstop 47027, Olympia, WA 98504-7027, e-mail matt.goehring@dnr.wa.gov, fax (360) 902-1786, by November 26, 2014.

Assistance for Persons with Disabilities: Contact Ms. Megan McKay by November 18, 2014, TTY (360) 902-1125.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: 2SHB 1764 requires DNR to adopt rules establishing a geoduck diver safety program. The proposed program establishes mandatory safety training and medical requirements for all divers participating in the state managed wildstock geoduck fishery. Mandated safety requirements are intended to mitigate the inherent hazards associated with working in hyperbaric conditions and reduce the probability of diver related accidents. Increased safety requirements will reduce risk exposure for geoduck divers, as well for other individuals that provide emergency response in the event of a dive-related accident.

Reasons Supporting Proposal: Commercial geoduck harvesting techniques expose divers to a wide range of occupational health and safety hazards. Despite recognized hazards, there are currently no mandated safety requirements for geoduck divers engaged in the wildstock fishery. The rule aligns geoduck harvest diving with industry standards for commercial diving operations.

Statutory Authority for Adoption: RCW 43.30.560.

Statute Being Implemented: RCW 43.30.560.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: DNR will implement compliance verification for the geoduck diver safety program. Information will be shared with department of fish and wildlife (DFW) for the purposes of issuing commercial geoduck diver licenses under RCW 77.65.410.

Name of Proponent: DNR, governmental.

Name of Agency Personnel Responsible for Drafting: Matthew Goehring, 1111 Washington Street S.E., Olympia, WA 98504, (360) 902-1090; Implementation: Blain Reeves, 1111 Washington Street S.E., Olympia, WA 98504, (360) 902-1731; and Enforcement: Todd Palzer, 1111 Washington Street S.E., Olympia, WA 98504, (360) 902-1864.

I. Executive Summary: The proposed rule to establish a geoduck diver safety program includes a combination of annual training qualifications and medical requirements for divers to participate in the state managed wildstock geoduck fishery. The mandated requirements are comparable with industry standards for commercial diving. All divers must annually demonstrate compliance prior to being listed on a DNR harvest plan of operations or issued a DFW geoduck diver license under RCW 77.65.410.

The annualized cost of compliance with the proposed geoduck diver safety program is estimated to be $368-418 per diver and is unrelated to harvest revenue. Since compliance is connected to a privately held license, all costs are assumed to be borne by the individual diver. For the purposes of this analysis all divers fall within the scope of a small business - either they are employed by a company with fewer than fifty employees or are considered self-employed. The rule will not have a disproportionate impact on small businesses. However, the relative burden of compliance costs as measured as a percent of diver income will be related to the number of days an individual spends on water harvesting geoduck.

Given the high value of the geoduck commodity, the proposed rule will not impact overall industry demand for harvest divers. However, an unknown percentage of divers may not be deemed medically qualified to conduct harvest diving under hyperbaric conditions. Some percentage of divers who fall within the bottom quartile in terms of frequency of dive days may also decide to not pursue licensing due to the cost of compliance as compared to their relatively small income from geoduck harvest. This could result in a small decrease in total number of licensed divers, but is not anticipated to impact total annual geoduck harvest.

II. Background: DNR, DFW, and Puget Sound treaty Indian tribes jointly manage the commercial wildstock geoduck fishery. Annual harvest of wildstock geoduck has increased from 82,000 pounds in 1970 to 4,327,000 pounds in 2010 valued at over $36 million (DFW, 2011). As manager of state-owned aquatic lands, DNR maintains proprietary rights to fifty percent of the annual harvestable commercial quota. Since 2003, the state-managed portion of annual harvest has averaged 1,965,295 pounds, generating between $3.6 and $29.6 million of revenue (DNR, unpublished data).

Commercial harvest occurs within tracts known to support commercial quantities of geoducks. DNR auctions the right to harvest quotas within defined tracts. A harvest agreement between DNR and a purchaser outlines legally binding terms of harvest. Successful bidders must submit a harvest plan of operations outlining (1) individuals, vessels, and vehicles involved in harvest and transport operations; (2) legal relationship between purchasers and individuals engaging in harvest operations; and (3) assurances that all employees and subcontractors will comply with the terms of the harvest agreement.

Geoduck harvest is completed using surface-supplied air diving techniques. Divers are deployed from harvest vessels and use handheld water jets to extract geoduck from depths between eighteen and seventy feet below mean lower low water. All divers participating in the state-managed wildstock fishery must be identified within a DNR harvest contract plan of operations and possess a DFW commercial geoduck diver license under RCW 77.65.410.

Rationale for Rule Making: The commercial geoduck diving occupation exposes divers to a wide range of health and safety hazards. Despite recognized hazards associated with commercial diving, there are currently no mandated safety requirements for geoduck divers engaged in the wildstock fishery. The proposed rule establishes training and medical requirements that are similar to industry-wide commercial diving standards.

2SHB 1764 directs DNR to establish: (a) An advisory geoduck harvester safety committee; and (b) a geoduck diver safety program outlining mandatory safety requirements for all divers. The safety committee, composed of agency and industry representatives, was required to provide DNR recommendations for safety program requirements by December 1, 2013. Beginning January 1, 2015, all divers will be required to demonstrate compliance with the diver safety program annually in order to be maintained on a DNR plan of operations and to obtain a commercial geoduck diver license under RCW 77.65.410.

The Federal Occupational Safety and Health Administration (OSHA) and Washington state department of labor and industries (L&I) have developed commercial diving standards to address the unique safety concerns associated with operating in a hyperbaric environment. However, OSHA and L&I jurisdiction is limited by an ambiguous employee-employer relationship and the fact that geoduck divers are deployed from a vessel as opposed to a fixed platform.

Summary of Proposed Rule: The proposed geoduck diver safety program consists of a combination of training qualifications and medical requirements. Divers will be required to demonstrate compliance annually.

1. Training Qualifications:

2. Medical Requirements:

All divers must annually demonstrate proof of compliance with the geoduck diver safety program beginning January 1, 2015.

Affected Industry: All divers licensed under RCW 77.65.410 and engaged in the state-managed wildstock geoduck fishery would be required to comply with the proposed geoduck diver safety program. Compliance is tied to the individual license holder - not the employer. 2SHB 1764 established an annual maximum of seventy-seven licenses beginning in 2015. From 2008 to 2012, DFW issued an average of sixty-nine commercial geoduck diver licenses. Annual licenses ranged from sixty-three licenses in 2012 to eighty-one licenses in 2009 (DFW, unpublished data). Considerable ambiguity surrounds the employee-employer relationship between geoduck divers and harvest vessel operators. For the purposes of this analysis all divers fall within the scope of a small business - either they are employed by a company with fewer than fifty employees or are considered self-employed. There are several geoduck purchasers that exceed the fifty employee threshold for small businesses; however, these firms do not directly employ divers at this time.

Tribal and aquaculture harvest divers are not subject to the proposed requirements.

Cost of Compliance: The cost of the rule requirements can be broken down into the cost of:

Costs for the training certificates and medical examinations were estimated based on consultation with providers and publically [publicly] available health care cost data. The cost of the divers' time was estimated based on an average hourly wage of $15 and the time required for training requirements. The cost of maintaining and presenting the training records to DNR was deemed negligible compared to the other costs and was not included. Per diver cost estimates are summarized in Table 1.

Impact on Small Businesses: Geoduck divers within the commercial wildstock fishery are self-employed or employed by harvest businesses that fall below the fifty employee small business threshold as defined in RCW 19.85.020. Since compliance is connected to a privately-held commercial diver license, the costs are expected to be borne by individual divers in the short-term. Given that this rule only affects small businesses, there is no disproportionate impact on small versus large businesses.

The burden of compliance for individual divers will be proportionate to diver compensation. Divers are compensated based on the total pounds of geoduck harvested. While diver specific data is unavailable, compensation is assumed to be highly variable and dependent on the number of days an individual participates in harvest diving. Table 2 estimates the average cost of compliance as a percentage of average diver incomes. Estimates were derived from 2013 DNR records of "days on water" for each diver.

As shown in the table, compliance costs as a percentage of income from diving for the average diver in the bottom quartile of dive days are estimated to be larger than for the average diver in the upper quartile. This is because the bottom quartile appears to be composed of spot - or infrequent - divers, whose dive days range from only one day per year to twenty-seven days per year.

Estimated Loss of Jobs: RCW 19.85.040 (2)(d) requires that the economic analysis include "(a)n estimate of the number of jobs that will be created or lost as the result of compliance with the proposed rule."

Geoduck is a high value commodity. Although diver compliance costs may eventually affect profits for harvesters and purchasers, the relative cost of compliance with respect to the overall value of the geoduck commodity is not expected to impact industry demand for divers to harvest geoduck quotas. Although no net loss in diver demand is anticipated, some percentage of divers may be determined to not be medically fit to dive following physician examination. It is difficult to estimate at this time what percentage of divers may not pass a physical examination.

The higher relative costs of compliance as a percentage of total harvest income may also result in a percentage of infrequent divers deciding to no longer pursue a diver license. This could result in an overall decrease in the number of licensed divers with more work being concentrated among fewer divers. Alternatively, some divers may find more work available and increase their dive days to compensate for the costs of compliance with the safety program.

IV. Actions Taken to Reduce Impact on Small Businesses: RCW 19.85.030 requires an agency to reduce the cost of compliance for small businesses where legal and feasible within the stated objectives of the underlying statutes. DNR considered a series of alternatives to minimize the costs for small businesses.

A large proportion of the cost of compliance is associated with the medical examination requirement. DNR considered an alternative without a medical requirement, but determined a diver safety program without a physical examination would not meet the intended objective of 2SHB 1764 to enhance diver safety. Although a dive physical represents a substantial cost, it is considered an industry standard to ensure divers are physically able to withstand the challenges of working under hyperbaric conditions. Annual dive physicals are required under L&I rules for commercial diving operations (WAC 296-37-525) and recommended by the International Consensus Standards for Commercial Diving and Underwater Operations (2011). In response to industry concerns about the costs, DNR revised the proposed rule to reduce the frequency of physical examinations. Requiring a physical examination every three years, as opposed to annually, will reduce estimated costs by approximately fifty percent.

DNR proposes an annual signed acknowledgement that a diver has reviewed and understands the principles of dive safety as outlined by the geoduck harvest safety committee. A self-directed review of materials, as opposed to an in-person course, will reduce the cost and time associated with compliance. Larger employers (still fewer than the fifty employee threshold) may have been able to negotiate reduced per-person course rates that would have been unavailable to smaller businesses and resulted in a disproportionate burden on smaller businesses.

CPR/first aid and emergency oxygen training are two-year certifications. Any reduction in frequency of training might cause a lapse in certification and compromise diver safety.

V. Small Business Involvement in Development of Proposed Rules: 2SHB 1764 directs DNR to establish a geoduck harvest safety committee and hold ongoing quarterly meetings. Committee membership includes representatives from the Washington Harvesters Association (vessel owners) and the Harvest Divers Association (divers). Both associations represent the interests of small businesses within the industry. The proposed rules are substantively based on the committee report submitted in November 2013 outlining recommendations for a geoduck diver safety program. The revised proposal also attempts to address the concerns identified during public meetings held in May and June 2014.

DNR has posted information pertaining to the rule making on its agency web site and reached out to individual divers as part of its geoduck harvest compliance program. Notice of the proposed rule making will be distributed to all licensed divers and prospective purchasers. One public hearing will be conducted to summarize the proposed rule, answer industry questions, and accept public comments.

VI. References: Association of Diving Contractors International. (2011). International Consensus Standards for Commercial Diving and Underwater Operations. 6th Edition.

Washington Department of Fish & Wildlife. (2011). Commercial wild stock geoduck fishery landings and ex-vessel value in Washington. Accessed April 14, 2014. http://wdfw.wa.gov/fishing/commercial/geoduck/geoduck_historic_landings_value_table.pdf.

A copy of the statement may be obtained by contacting Matthew Goehring, DNR, 1111 Washington Street S.E., Mailstop 47027, Olympia, WA 98504, phone (360) 902-1090, fax (360) 902-1786, e-mail matt.goehring@dnr.wa.gov.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Matthew Goehring, DNR, 1111 Washington Street S.E., Mailstop 47027, Olympia, WA 98504, phone (360) 902-1090, fax (360) 902-1786, e-mail matt.goehring@dnr.wa.gov.

October 21, 2014

Megan Duffy

Deputy Supervisor

Aquatics and

Environmental Protection

Test	Initial Examination	Reexamination
Chest X ray	X
Visual acuity	X	X
Color blindness	X
EKG: Standard 12L1
Hearing test	X	X
Hematocrit or hemoglobin	X	X
Sickle cell index	X
White blood count	X	X
Urinalysis	X	X