Case: 19-60245   Document: 00515490818     Page: 1   Date Filed: 07/15/2020




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                 No. 19-60245                         July 15, 2020
                                                                     Lyle W. Cayce
HOUSTON AQUARIUM, INCORPORATED, and its Successors,                       Clerk


             Petitioner

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
EUGENE SCALIA, SECRETARY, U.S. DEPARTMENT OF LABOR,

             Respondents




                    Petition for review of an Order of the
             Occupational Safety and Health Review Commission


Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      The Houston Aquarium seeks review of the Occupational Safety and
Health Review Commission’s (OSHRC’s) decision affirming the application of
the Occupational Health and Safety Administration’s (OSHA’s) commercial
diving safety regulations to the dives its staff members perform to feed animals
housed at the Aquarium and to clean the facility’s tanks. A majority of the
OSHRC panel affirmed the Administrative Law Judge’s (ALJ’s) determination
that feeding and cleaning dives did not fall within the “scientific diving”
exemption to the commercial standard because they were not performed “by
employees whose sole purpose for diving is to perform scientific research tasks”
    Case: 19-60245    Document: 00515490818     Page: 2   Date Filed: 07/15/2020



                                 No. 19-60245
as required by the regulatory definition. 29 C.F.R. § 1910.402. Under a plain
reading of the entire definition, as well as the regulation guidelines and
regulatory history, these dives do qualify as scientific diving. Accordingly, we
REVERSE.


                                       I.
      The Houston Aquarium operates a four-story complex in downtown
Houston with at least eight fresh and saltwater tanks large enough to perform
dives. The Aquarium employs many divers, all of whom are trained scientists
with diving certifications, to perform work in the tanks such as feeding the
animals, cleaning the tank windows, siphoning gravel from the bottom of the
tanks, removing animals that have died, and conducting “event dives” during
which aquarium divers are observed by patrons and visitors.
      In December 2011, OSHA received a complaint from an Aquarium
employee alleging that some of the dives taking place at the Aquarium were
not scientific, meaning that the Aquarium was violating the Commercial
Diving Operations (CDO) standard by failing to comply with its requirements
for non-exempt dives. OSHA assigned Mark Chapman, a Compliance Safety
and Health Officer (CSHO), to investigate the complaint. Chapman
recommended that no citation be issued because the Aquarium’s activities
were subject to the scientific diving exemption, and the Aquarium was
therefore not required to comply with the CDO standard. The employee then
elevated his complaint to OSHA’s national office, and Chapman was directed
to re-open the investigation. In February 2012, Chapman returned to the
Aquarium and ultimately issued a Citation and Notification of Penalty on July
10, 2012. Before this citation, the Aquarium conducted operations based on an
understanding that it was exempt from compliance with the CDO standard, an
assumption that was reinforced by OSHA rarely, if ever, conducting
                                       2
     Case: 19-60245      Document: 00515490818        Page: 3     Date Filed: 07/15/2020



                                     No. 19-60245
inspections of this or any other Aquarium to check compliance with the CDO
standard.
       The ALJ conducted a three-day hearing and ultimately concluded in a
written order following the hearing that some of the Aquarium’s diving
activities did not fall within the scientific exemption. Specifically, the ALJ
found that the Aquarium’s divers engage in three types of dives: (1) feeding
and cleaning dives; (2) event dives, during which divers perform for visitors;
and (3) mortality dives, during which dead animals are removed and taken to
the Aquarium’s lab for examination. The ALJ held that the mortality dives fell
within the scientific exemption but feeding/cleaning and event dives did not.
Finally, the ALJ also made various evidentiary rulings on issues raised by the
parties in post-hearing briefs.
       The Aquarium did not appeal the ALJ’s ruling that its “event dives” were
not covered by the scientific exemption. OSHA did not appeal the ALJ’s ruling
as to mortality dives. Thus, the only issue before the Commission was whether
the feeding and cleaning dives fell within the scientific exemption. 1 The
majority of the Commission panel, in a decision issued on February 15, 2019,
affirmed the ALJ’s determination that these dives were not scientific because
the activities performed “fail[ed] to meet the plain terms of the definition of
‘scientific diving.’” The Chairman of the Commission dissented.
      The Aquarium timely petitioned this court for review on April 16, 2019.


                                            II.
      This court has jurisdiction over this appeal under 29 U.S.C. § 660(a),
which provides for judicial review of OSHRC orders. On appeal, findings of fact



      1       The Commission did not directly address the ALJ’s evidentiary rulings, but it
implicitly adopted these findings when it “affirm[ed] the judge’s decision in full.”
                                            3
    Case: 19-60245    Document: 00515490818     Page: 4   Date Filed: 07/15/2020



                                 No. 19-60245
by the Commission are “conclusive” if they are “supported by substantial
evidence on the record considered as a whole.” 29 U.S.C. § 660(a); Sanderson
Farms, Inc. v. Perez, 

, 734 (5th Cir. 2016). “Substantial evidence
is ‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Chao v. OSHRC, 

, 362 (5th Cir. 2005)
(quoting Consolo v. Fed. Mar. Comm’n, 

, 619–20 (1966)). Thus, the
court must “uphold factual findings if a reasonable person could have found
what the Commission found, even if the appellate court might have reached a
different conclusion.” Sanderson 

(alteration, internal
quotation marks, and citations omitted). The court reviews legal conclusions to
determine whether they are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Sanderson 

(citations omitted); Trinity Marine Nashville, Inc. v. OSHRC,

, 427 (5th Cir. 2001) (citations omitted).


                                      III.
      The Aquarium makes three arguments: (1) that the ALJ erred in
crediting the OSHA compliance officer’s lay testimony opining that the
Aquarium violated the commercial diving regulations; (2) that the ALJ erred
in excluding Aquarium expert testimony; and (3) that the Commission erred in
holding that feeding and cleaning dives are not scientific dives and are
therefore subject to the CDO standard.
      A.    Evidentiary Issues

      We address the first two issues raised by the Aquarium together and
affirm the ALJ’s evidentiary findings.
      First, the ALJ did not err in crediting the compliance officer’s testimony
about the CDO standard as lay opinion testimony because his testimony was
based on his firsthand perceptions during his investigation. See United States
                                      4
    Case: 19-60245       Document: 00515490818   Page: 5   Date Filed: 07/15/2020



                                  No. 19-60245
v. Yanez Sosa, 

, 200 (5th Cir. 2008) (holding that “lay testimony
‘results from a process of reasoning familiar in everyday life,’ while expert
testimony ‘results from a process of reasoning which can be mastered only by
specialists in the field.’” (quoting FED. R. EVID. 701, Advisory Committee Notes
to 2000 Amendments)). Lay witnesses may give opinions that require
specialized knowledge when the witness draws “straightforward conclusions
from observations informed by his own experience.” United States v. El-
Mezain, 

, 512 (5th Cir. 2011) (quoting United States v. Riddle, 

, 429 (5th Cir. 1997)). The officer’s testimony related to conditions he
observed while at the Aquarium, which is proper lay testimony.
      Further, even if the compliance officer testified to some matters that fell
outside the realm of lay opinion testimony, the admission of this testimony was
harmless because the officer did not offer an opinion on whether the scientific
exemption applies to Aquarium feeding and cleaning dives. He merely testified
that the Aquarium was not in compliance with the CDO standard. But the
Aquarium’s argument is that it was not required to meet the CDO standard
because it is exempt. The Aquarium does not contend that it was actually in
compliance with the CDO standard. The officer’s opinions therefore were not
sufficiently important or injurious to the ALJ’s finding. See United States v.
Wright, 

, 775 (5th Cir. 2011) (“A nonconstitutional trial error is
harmless unless it had substantial and injurious effect or influence in
determining the jury’s verdict.” (quoting United States v. Lowery, 

,
959 (5th Cir. 1998))).
      Second, the Aquarium’s witnesses were properly treated as lay witnesses
because although the Aquarium identified these witnesses as “potential”
experts in its interrogatory answers, its prehearing statement merely referred
to them as “witnesses,” and it never tendered them as experts at the hearing.
Similarly, in its prehearing statement, the Aquarium listed its witnesses in a
                                        5
    Case: 19-60245    Document: 00515490818     Page: 6   Date Filed: 07/15/2020



                                 No. 19-60245
chart under the heading “Respondent’s Witnesses” that described their “area
of expertise” and contained a short statement of the purpose of their testimony.
The chart notes that Derek Smith, an expert witness for the Aquarium, “has
been retained by Defendants to testify regarding the applicable safety
requirements.” The chart contains no similar statement for the other
witnesses, implying that they were being offered as lay witnesses.
      It was the Aquarium’s burden to lay the foundation for the ALJ to
evaluate the witnesses’ qualifications. See 29 WRIGHT & MILLER, FEDERAL
PRACTICE & PROCEDURE § 6264.3 (2d ed. 2019) (“[T]he party proffering a
witness as an expert has the burden of laying a foundation that establishes the
witness is qualified.”). While there is no specific process by which a court must
assess an expert’s qualifications, see Kumho Tire Co. v. Carmichael, 

, 152 (1999), some evaluation is needed before a witness can testify as an
expert. Hopkins v. Dow Corning Corp., 

, 1124 (9th Cir. 1994) (“The
district court is not required to hold a Rule 104(a) hearing, but rather must
merely make a determination as to the proposed expert’s qualifications.”).
      Here, the ALJ stated in her decision and order that she did not have
notice of the Aquarium’s intention to tender these witnesses as experts.
Therefore, she was unable to perform the necessary evaluation of their
qualifications and the reliability of their testimony, because the Aquarium
never explicitly designated them as experts either before or at the hearing.
Given that the Aquarium was not clear about its desire to have these witnesses
testify as experts, the ALJ did not abuse her discretion in treating them as lay
witnesses. United States v. Cooks, 

, 179 (5th Cir. 2009) (giving the
standard of review for rulings on expert testimony).




                                       6
    Case: 19-60245     Document: 00515490818     Page: 7   Date Filed: 07/15/2020



                                  No. 19-60245
     B.   The Applicability of the CDO Standard to Aquarium
Feeding and Cleaning Dives

      The Aquarium challenges the Commission’s holding that feeding and
cleaning dives are not within the scientific exemption to the CDO standard. It
argues that these dives meet the regulatory definition of scientific diving: they
are a necessary part of scientific, research, and educational activities carried
out by employees performing solely scientific research tasks. We agree and
hold that the Commission’s holding, based on its narrow interpretation of the
term “research,” was too restrictive in that it failed to account for the language
of the exemption read as a whole.
      The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.,
is meant “to assure so far as possible every working man and woman in the
Nation safe and healthful working conditions.”

The Act imposes a
general duty on employers to furnish employees a workplace “free from
recognized hazards that are causing or are likely to cause death or serious
physical harm.”

It delegates authority to promulgate specific
safety standards to the Secretary of Labor.

To establish that an
employer has violated a particular safety standard, the Secretary has the
burden to prove (1) “that the cited standard applies”; (2) that the employer has
not complied with the cited standard; (3) that employees have “access or
exposure to the violative conditions”; and (4) “that the employer had actual or
constructive knowledge of the conditions,” i.e., that it actually knew of the
conditions or, with the exercise of reasonable diligence, should have known.
Sanderson 

.
      The CDO standard contains OSHA’s safety requirements for diving
employers. It “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
                                        7
     Case: 19-60245      Document: 00515490818         Page: 8    Date Filed: 07/15/2020



                                      No. 19-60245
longshoring.” 29 C.F.R. § 1910.401(a)(2). But the regulations do not apply to
“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. 2

(B). 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.

As the party seeking to invoke an exemption from a legal
requirement, the Aquarium has the burden of proving that the exemption
applies. StarTran, Inc. v. OSHRC, 290 F. App’x 656, 665 (5th Cir. 2008).
       We are not aware of any case law that speaks to whether the dive tasks
performed at an aquarium qualify as scientific diving. Therefore, we must
interpret the regulatory language as an issue of first impression. During the
administrative proceedings, the Commission majority found that feeding and
cleaning dives did not fall within the scientific diving exemption because the
activities are not performed by divers “whose sole purpose for diving is to
perform scientific research tasks.” See 29 C.F.R. § 1910.402. It held that
feeding was not a research task because the divers did not collect written data
about the feeds. It also found that cleaning could not be for the sole purpose of
scientific research because three employees testified that part of the purpose
of cleaning the tanks was so that visitors could see the animals more clearly.


       2      Prior to their initial hearing before the ALJ, the parties stipulated that the
Aquarium has a safety manual and a diving control board, in compliance with regulatory
requirements.
                                             8
    Case: 19-60245    Document: 00515490818      Page: 9   Date Filed: 07/15/2020



                                 No. 19-60245
      As the Chairman’s dissenting opinion points out, rather than focusing on
the single term “research,” the Commission should have interpreted the
language of the exemption as a whole. We look to the “fundamental canon of
statutory construction that the words of a statute must be read in their context
and with a view to their place in the overall statutory scheme.” Food & Drug
Admin. v. Brown & Williamson Tobacco Corp., 

, 133 (2000)
(quoting Davis v. Mich. Dep’t of Treasury, 

, 809 (1989)); see also
Doe v. KPMG, LLP, 

, 688 (5th Cir. 2005) (citation omitted) (“When
interpreting a statute, we start with the plain text, and read all parts of the
statute together to produce a harmonious whole.”).
      Applying these principles to the definition of the term “scientific diving,”
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. The methods for reporting this
data are: (1) a Facility Dive Log documenting that a diver has completed the
dive and noting its length; and (2) communication of any abnormalities, such
as discoloration on a fish indicating injury, scratches in the tank, or an animal


                                        9
    Case: 19-60245     Document: 00515490818       Page: 10    Date Filed: 07/15/2020



                                   No. 19-60245
exhibiting unusual behavior, to a supervisor or biologist in charge of the
exhibit.
      These activities are “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” because their purpose is to preserve the
aquatic life in the complex artificial ecosystem that is the Aquarium, and the
divers are trained scientists who are employed to carry out that mission. 29
C.F.R. § 1910.402. As the Chairman pointed out, in an exhibit, “[e]verything
involved—from the water’s chemical content, temperature and filtration, to the
microorganisms, algae, and the marine animals themselves—exists in a
delicate balance that must be constantly monitored and maintained by trained
biologists.” Feeding and cleaning must be done in accordance with specific
scientific requirements to maintain the health of the animals. The project of
maintaining this aquatic life in a controlled, rather than a wild, environment
in order to display it for the public is a scientific research task. If the divers did
not feed the animals or remove waste and invasive algae from the tanks, the
animals would die, resulting in the failure of the Aquarium’s mission.
      The common meaning of the term “research” does not require writing or
publication beyond the Facility Dive Log and informal reports of abnormalities
about which the divers testified. See Merriam-Webster Dictionary (online ed.)
available at http://www.merriam-webster.com (last visited July 6, 2020)
(defining “research” as, inter alia, “studious inquiry or examination” and “the
collecting of information about a particular subject”); Cambridge Dictionary
(online ed.) available at http://www.dictionary.cambridge.org (last visited July
6, 2020) (defining “research” as “a detailed study of a subject, especially in
order to discover (new) information or reach a (new) understanding”). The
divers are engaged in a “studious . . . examination” and “detailed study” when
they observe the animals for abnormalities, and when they work to keep the
                                         10
    Case: 19-60245      Document: 00515490818      Page: 11   Date Filed: 07/15/2020



                                    No. 19-60245
animals in the Aquarium alive, healthy, and breeding. That an organization
collaborates among employees and engages in verbal communication does not
mean that the examination and study of the animals in the tanks is not
“studious” or “detailed.” Nothing about the feeding and cleaning dives renders
the information that the trained scientists performing the dives gather during
these dives outside of the definition of “research.”
         In addition, the definition of scientific diving as a whole reinforces that
Aquarium feeding and cleaning dives are appropriately characterized as
scientific. The second part of the regulatory definition provides that scientific
dives “do[] 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.” 29 C.F.R. § 1910.402. Feeding and cleaning
animal tanks at an aquarium are activities clearly distinguishable from any of
the listed activities, which are typically associated with construction and
industrial work. Similarly, OSHA’s guidance to be applied in “arguably
ambiguous cases,” specifically distinguishes between “[t]he tasks of a scientific
diver,” which are “those of an observer and data gatherer,” and the
“[c]onstruction and trouble-shooting tasks traditionally associated with
commercial diving.” 49 Fed. Reg. 29105-02, 29106, 29108 (July 18, 1984). Of
these two categories, the trained scientists diving at the Aquarium are in the
first.
         The regulatory history further confirms the Aquarium’s reading of the
exemption. The supplementary information to the rule codifying the CDO
standard focuses on the hazards faced by divers performing “such operations
as . . . the manipulation of heavy objects” and when doing tasks like “burning,
welding, and using explosives.” 42 Fed. Reg. 37650, 37651 (July 22, 1977). In


                                          11
   Case: 19-60245     Document: 00515490818     Page: 12   Date Filed: 07/15/2020



                                 No. 19-60245
1982, when OSHA created the scientific diving exemption, it defined the two
types of diving as follows:
      Commercial diving activities necessitate the use of heavy tools and
      include such tasks as placing or removing heavy objects
      underwater, inspection of pipelines and similar objects,
      construction, demolition, cutting or welding, or the use of the
      explosives.

      In contrast, the sole purpose of scientific diving is to perform
      scientific research which includes such tasks as scientific
      observation of natural phenomena or responses of natural
      systems, and gathering data for scientific analysis. The tasks
      performed by scientific divers are usually light, short in duration,
      and if any handtools are used, they are usually no more than
      simple non-powered handtools such as screwdrivers and pliers.

47 Fed. Reg. 53357-01, 53359 (November 26, 1982). These descriptions draw a
stark contrast between commercial diving, whose hazards require additional
safety measures, and scientific diving, which can be conducted safely with an
adequate safety manual and diving safety board.
      The regulatory history as a whole highlights that OSHA’s purpose in
creating the CDO standard was to improve workplace safety for divers working
on dangerous tasks such as construction and drilling, which are not present at
the Aquarium. OSHA discerned that institutions like the Aquarium, which can
achieve a low rate of, or no accidents by self-regulation, did not require
regulation under the CDO standard. Rather than involving demolition, heavy
tools, or construction, the Aquarium feeding and cleaning dives involve
observation of natural phenomena and light, short tasks that require small,
simple instruments such as brushes, scrub pads, and other cleaning tools. The
Aquarium’s work fits within the exemption as OSHA described it when it
created the scientific diving exemption.
      Indeed, the alleged violations with which the Aquarium has been
charged were not shown in the record to have safety benefits. OSHA charged
                                    12
   Case: 19-60245     Document: 00515490818     Page: 13   Date Filed: 07/15/2020



                                 No. 19-60245
the Aquarium with, inter alia, not having a two-way communication system,
not having a reserve air supply, and not having a safety harness. The
Aquarium’s Senior Dive Officer, Todd Hall, testified that Aquarium divers do
not need a two-way communication system, because unlike divers who may be
in open or murky water or separated by long distances, Aquarium divers can
easily see the spotter standing outside of the tank and can communicate using
hand signals. Divers also do not need reserve air supplies in the Aquarium’s
tanks that are a mere 12 or 14 feet deep. If a diver loses his air supply, he can
propel himself to the surface in equal or less time than switching to a second
air supply. Lastly, divers do not need safety harnesses, which are used for
emergency extractions, because the Aquarium uses quick-deploy harnesses
when needed. Because of the short distance, divers can be pulled out using
these harnesses in less than two minutes. In this regard, we note that the
Aquarium has had no diving injuries or safety incidents since it opened.
      Indeed, there is evidence that adding the additional safety equipment
required under the CDO standard could make the divers and animals less safe
in the Aquarium environment. Derek Smith testified that “bringing something
like [extra safety equipment] into the exhibit presents the opportunity for the
animals to either have different behaviors, or even possibly if they get a hold
of that thing ingest it.” He also noted that, “anything brought into the exhibit
presents a hazard to the fish populations.”
      The Aquarium has shown that feeding and cleaning dives are a
necessary component of its scientific research because they are a source of
regular contact with the animals during which divers can assess their needs
and identify potential hazards or abnormalities, and because feeding and
cleaning are necessary to the animals’ survival. The Aquarium’s purpose is to
engage in animal husbandry and to learn about and display the animals it
houses by studying them in the close proximity that a highly controlled
                                       13
   Case: 19-60245    Document: 00515490818      Page: 14   Date Filed: 07/15/2020



                                 No. 19-60245
environment allows. Feeding the animals and cleaning their tanks is an
essential part of this complex mission.


                                      IV.
      For the foregoing reasons, the decision of the OSHRC is REVERSED.




                                      14