WSR 15-04-138

PROPOSED RULES

[Filed February 4, 2015, 11:56 a.m.]

Supplemental Notice to WSR 14-21-158.

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 in order 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 minimum qualifications include CPR/first-aid certification, emergency oxygen administration certification, Washington state boater education card, and an annual self-attestation confirming applicant experience/training in the fundamental principles of dive safety. The proposed rule has been revised from previous proposals (WSR 14-09-107 and 14-21-158) in response to feedback submitted during applicable public comment periods. All medical requirements (e.g., physical examination) have been removed from the proposed safety program.

Hearing Location(s): Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA 98504, on March 12, 2015, at 6:00 p.m.

Date of Intended Adoption: April 7, 2015.

Submit Written Comments to: Matthew Goehring, Department of Natural Resources, 1111 Washington Street S.E., Mailstop 47027, Olympia, WA 98504-7027, e-mail matt.goehring@dnr.wa.gov, fax (360) 902-1786, by March 13, 2015.

Assistance for Persons with Disabilities: Contact Ms. Megan McKay by March 5, 2015, 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 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: 2SHB 1764 directs DNR to establish a geoduck diver safety program for all harvest divers participating in the state-managed wildstock fishery. The proposed rule establishes minimum training qualifications comparable with recognized industry standards for commercial diving. All harvest divers must annually demonstrate compliance with the proposed diver safety program 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 $218 per diver and is unrelated to harvest revenue. Compliance is tied to a privately held license and all costs are assumed to be borne by the individual diver. DNR estimates compliance costs vary between 0.02 and 2.4 percent of an individual diver's annual harvest revenue. For the purposes of this analysis, all divers fall within the scope of a small business as defined in statute (RCW 19.85.020) – either they are employed by a company with fewer than fifty employees or are considered self-employed. As a result, the proposed rule will not have a disproportionate impact on small businesses.

No net change in geoduck harvest diving jobs is anticipated as a result of rule implementation. The high value of the geoduck commodity as compared to the relative low cost of compliance with the proposed rule will not impact overall industry demand for harvest divers.

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 valid 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 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 statute required the safety committee, composed of agency and industry representatives, to provide DNR recommendations for safety program requirements by December 1, 2013. Beginning January 1, 2015, all divers must demonstrate compliance with the adopted diver safety program annually in order to be maintained on a DNR plan of operations and 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 outlines minimum training qualifications for all geoduck harvest divers participating in the state-managed fishery.

Training Qualifications:

Annual proof of compliance with the geoduck diver safety program is required 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 January 2015. From 2008 to 2012, DFW issued an average of sixty-nine commercial geoduck diver licenses. Annual licenses ranged from a minimum of sixty-three licenses in 2012 to a maximum of 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 qualify as 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: Compliance costs can be broken down into the cost of:

Training certification costs were estimated based on consultation with regional providers. Estimated costs associated with the time required to maintain minimum qualifications were derived by multiplying an average hourly wage of $15 by the time required for training. The cost of reporting training records to DNR was deemed negligible compared to the other costs and was excluded from the analysis. 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 geoducks harvested. While diver-specific data is unavailable, compensation is assumed to be highly variable and dependent on the number of days an individual engages 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 identified on a harvest plan of operations.

Estimated compliance costs range between 0.2 to 2.4 percent of annual harvest derived income. The highest relative costs as a percentage of income would be borne by divers in the bottom quartile of "diver-days on water" who are assumed to only dive between one and twenty-seven days per year.

Estimated Loss of Jobs: RCW 19.85.040 (2)(d) requires that an 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."

DNR anticipates no net change in geoduck harvest jobs as a result of implementation of the geoduck diver safety program. Geoduck is a high value commodity. Although diver compliance costs could eventually affect profits for harvesters and purchasers, the relatively small cost of compliance as compared to the overall value of the geoduck commodity is not expected to impact industry demand for harvest divers. Further, projected annual compliance costs represent a small fraction of individual harvest diver compensation.

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 rule alternatives to minimize the cost of compliance for small businesses. The merits of a medical dive physical requirement were carefully evaluated, but excluded from the proposed rule due to a combination of cost and the potential to exclude a proportion of the existing divers from [the] fishery. This reduced individual compliance costs by more than fifty percent. Requiring a self-attestation confirming applicant completion of minimum experience and training requirements – as opposed to an in-person course requirement – provides divers the option of completing a self-directed review of applicable safety materials to help further reduce the cost and time associated with compliance. An in-person course requirement could have positioned larger employers (still fewer than the fifty employee threshold) to be able to negotiate reduced per-person course rates unavailable to smaller businesses and contributed to a disproportionate burden on smaller businesses.

CPR/first-aid and emergency oxygen training are two-year certifications. Any reduction in frequency of training would result in 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 rule proposal also attempts to address industry concerns identified through previous comment periods and applicable public hearings.

DNR 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 revised proposed rule will be distributed to all licensed divers and prospective purchasers. One additional 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, Department of Natural Resources, 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, Department of Natural Resources, 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.

February 3, 2015

Megan Duffy

Deputy Supervisor

Aquatics and

Environmental Protection