[Federal Register Volume 75, Number 199 (Friday, October 15, 2010)]
[Proposed Rules]
[Pages 63425-63428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25895]


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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Part 701

RIN 1240-AA02


Regulations Implementing the Longshore and Harbor Workers' 
Compensation Act: Recreational Vessels

AGENCY: Office of Workers' Compensation Programs, Labor.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: The Office of Workers' Compensation Programs (OWCP) is 
republishing the Notice of Proposed Rulemaking entitled Longshore and 
Harbor Workers' Compensation Act: Recreational Vessels, published on 
August 17, 2010 (75 FR 50718), and affording the public an additional 
period for submitting comments. This document contains proposed 
regulations implementing amendments to the Longshore and Harbor 
Workers'

[[Page 63426]]

Compensation Act (LHWCA) by the American Recovery and Reinvestment Act 
of 2009 (ARRA), relating to the exclusion of certain recreational-
vessel workers from the LHWCA's definition of ``employee.'' These 
regulations would clarify both the definition of ``recreational 
vessel'' and those circumstances under which workers are excluded from 
LHWCA coverage when working on those vessels. The proposed rules also 
codify the Department's longstanding view that employees are covered 
under the LHWCA so long as some of their work constitutes ``maritime 
employment'' within the meaning of the statute.

DATES: The Department invites written comments on the proposed rule 
from interested parties. The Department is particularly interested in 
receiving comments regarding the proposed definition of ``recreational 
vessel.'' When first published, the Department set October 18, 2010 as 
the deadline for comments on the NPRM, which afforded the public 60 
days to submit comments. 75 FR 50718 (Aug. 17, 2010). As explained in 
the supplementary information section below, the Department is 
republishing the NPRM to accommodate revising the title of 20 CFR 
chapter VI. The Department is also effectively lengthening the comment 
period by 30 days. The Department believes that the combined comment 
period--a total of 90 days--will allow interested members of the public 
sufficient time to review the NPRM and submit comments. Accordingly, 
written comments must be received by November 17, 2010.

ADDRESSES: You may submit written comments, identified by RIN number 
1240-AA02, by any of the following methods. To facilitate the receipt 
and processing of comment letters, OWCP encourages interested parties 
to submit their comments electronically.
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions on the Web site for submitting comments.
    <bullet> Facsimile: (202) 693-1380 (this is not a toll-free 
number). Only comments of ten or fewer pages (including a FAX cover 
sheet and attachments, if any) will be accepted by FAX.
    <bullet> Regular Mail: Submit comments on paper, disk, or CD-ROM to 
the Division of Longshore and Harbor Workers' Compensation, Office of 
Workers' Compensation Programs, U.S. Department of Labor, Room C-4315, 
200 Constitution Avenue, NW., Washington, DC 20210. The Department's 
receipt of U.S. mail may be significantly delayed due to security 
procedures. You must take this into consideration when preparing to 
meet the deadline for submitting comments.
    <bullet> Hand Delivery/Courier: Submit comments on paper, disk, or 
CD-ROM to the Division of Longshore and Harbor Workers' Compensation, 
Office of Workers' Compensation Programs, U.S. Department of Labor, 
Room C-4315, 200 Constitution Avenue, NW., Washington, DC 20210.
    Instructions: All submissions received must include the agency name 
and the Regulatory Information Number (RIN) for this rulemaking. All 
comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
    Docket: To read background documents or comments received, go to 
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Michael Niss, Director, Division of 
Longshore and Harbor Workers' Compensation, Office of Workers' 
Compensation Programs, U.S. Department of Labor, Room C-4315, 200 
Constitution Avenue, NW., Washington, DC 20210. Telephone: (202) 693-
0038 (this is not a toll-free number). TTY/TDD callers may dial toll 
free 1-800-877-8339 for further information.

SUPPLEMENTARY INFORMATION:

I. Background of This Rulemaking

A. Statutory Background

    Section 2(3) of the LHWCA defines ``employee'' to mean ``any person 
engaged in maritime employment, including any longshoreman or other 
person engaged in longshoring operations, and any harbor-worker 
including a ship repairman, shipbuilder, and ship-breaker * * *.'' 33 
U.S.C. 902(3). The remainder of this provision, initially enacted as 
part of the 1984 amendments to the LHWCA, lists eight categories of 
workers who are excluded from the definition of ``employee'' and 
therefore excluded from LHWCA coverage. 33 U.S.C. 902(3)(A)-(H). 
Section 2(3)(F) in particular excluded from coverage ``individuals 
employed to build, repair, or dismantle any recreational vessel under 
sixty-five feet in length,'' provided that such individuals were 
``subject to coverage under a State workers' compensation law.'' 33 
U.S.C. 902(3)(F).
    Section 803 of Title IX of the American Recovery and Reinvestment 
Act of 2009, Public Law 111-5, 123 Stat. 115, 127 (2009), amended the 
section 2(3)(F) exclusion. That provision now excludes ``individuals 
employed to build any recreational vessel under sixty-five feet in 
length, or individuals employed to repair any recreational vessel, or 
to dismantle any part of a recreational vessel in connection with the 
repair of such vessel,'' and retains the State-workers'-compensation-
coverage proviso. 33 U.S.C. 902(3)(F), as amended by Public Law 111-5 
section 803, 123 Stat 115, 187 (2009) (emphasis supplied).
    Thus, under the original version of section 2(3)(F), all 
individuals working on recreational vessels shorter than sixty-five 
feet were excluded from the definition of ``employee.'' The amended 
exclusion retains this same rule for employees building recreational 
vessels. For individuals who repair or dismantle recreational vessels, 
however, the amended exclusion provides for different treatment. Now, 
workers who repair recreational vessels or dismantle them for repair 
are excluded from the definition of ``employee'' regardless of the 
vessel's length. With the removal of the sixty-five feet length limit, 
the number of vessels that will be considered recreational for LHWCA 
purposes will increase; and as vessel numbers increase, the number of 
workers who repair or dismantle them for repair will naturally increase 
as well. On the other hand, amended section 2(3)(F) no longer excludes 
workers who dismantle recreational vessels, except when the dismantling 
is in connection with a repair. Thus, some workers previously excluded 
may now be considered ``employees'' under section 2(3).
    The proposed regulations clarify how amended section 2(3)(F) should 
be interpreted and applied in several respects.

B. Reasons for Republication

    The NPRM proposes revisions to regulations contained in 20 CFR 
chapter VI governing the administration of the LHWCA and its 
extensions, and the Black Lung Benefits Act (BLBA). When the NPRM was 
initially published on August 17, 2010, Chapter VI was titled 
``Employment Standards Administration, Department of Labor.'' Because 
the Secretary dissolved the Employment Standards Administration on 
November 8, 2009 (see Secretary's Order 10-2009, 74 FR 58834 (Nov. 13, 
2009)), that title was no longer accurate. The Department has now 
issued a final rule revising the title to reflect the Secretary's 
delegation of her authority to administer the LHWCA and its extensions, 
and the BLBA to the Director, OWCP. Accordingly, OWCP is republishing 
the NPRM under the current Chapter VI title, ``Office of Workers' 
Compensation Programs, Department of Labor (Divisions of Longshore and 
Harbor Workers'

[[Page 63427]]

Compensation and Coal Mine Workers' Compensation).''

II. Summary of the Proposed Rule

    The Department summarized each proposed regulation in the August 
17, 2010 NPRM. 75 FR 50719-24. Those summaries apply with equal force 
to this republished NPRM.

III. Statutory Authority

    The Department's statement of its statutory authority for proposing 
these rules is set forth in the August 17, 2010 NPRM. 75 FR 50724.

IV. Other Legal Analyses

    The Department's analysis of the following legal requirements is 
set forth in the August 17, 2010 NPRM:
    A. Information Collection Requirements (subject to the Paperwork 
Reduction Act) Imposed under the Proposed Rule, 75 FR 50724.
    B. Executive Order 12866 (Regulatory Planning and Review), 75 FR 
50724.
    C. Small Business Regulatory Enforcement Fairness Act of 1996, 75 
FR 50725.
    D. Unfunded Mandates Reform Act of 1995, 75 FR 50725.
    E. Regulatory Flexibility Act and Executive Order 13272 (Proper 
Consideration of Small Entities in Agency Rulemaking), 75 FR 50725-28.
    F. Executive Order 13132 (Federalism), 75 FR 50728.
    G. Executive Order 12988 (Civil Justice Reform), 75 FR 50728.
    H. Congressional Review Act, 75 FR 50728.

List of Subjects in 20 CFR Part 701

    Longshore and harbor workers, Organization and functions 
(government agencies), Workers' compensation.

    For the reasons set forth in the preamble, the Department of Labor 
proposes to amend 20 CFR part 701 as follows:

PART 701--GENERAL; ADMINISTERING AGENCY; DEFINITIONS AND USE OF 
TERMS

    1. The authority citation for part 701 is revised to read as 
follows:

    Authority: 5 U.S.C. 301 and 8171 et seq.; 33 U.S.C. 939; 36 DC 
Code 501 et seq.; 42 U.S.C. 1651 et seq.; 43 U.S.C. 1331; 
Reorganization Plan No. 6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 
Comp., p. 1004, 64 Stat. 1263; Secretary's Order 10-2009; Pub. L. 
111-5 Sec.  803, 123 Stat. 115, 187 (2009).

    2. Revise the undesignated center heading following Sec.  701.203 
to read as follows:

Definitions and Use of Terms

* * * * *
    2a. Amend Sec.  701.301 as follows:
    a. Revise the section heading;
    b. Redesignate paragraph (a)(12) as Sec.  701.302, with its sub-
paragraphs redesignated according to the following table:

------------------------------------------------------------------------
                                               New designation in Sec.
   Former designation in Sec.   701.301                701.302
------------------------------------------------------------------------
(a)(12)(i) introductory text..............  (a) introductory text.
(a)(12)(i)(A).............................  (a)(1).
(a)(12)(i)(B).............................  (a)(2).
(a)(12)(i)(C).............................  (a)(3).
(a)(12)(ii) introductory text.............  (b) introductory text.
(a)(12)(ii)(A)............................  (b)(1).
(a)(12)(ii)(B)............................  (b)(2).
(a)(12)(iii) introductory text............  (c) introductory text.
(a)(12)(iii)(A)...........................  (c)(1).
(a)(12)(iii)(B)...........................  (c)(2).
(a)(12)(iii)(C)...........................  (c)(3).
(a)(12)(iii)(D)...........................  (c)(4).
(a)(12)(iii)(E)...........................  (c)(5).
(a)(12)(iii)(F)...........................  (c)(6).
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    c. Redesignate paragraphs (a)(13) through (a)(16) as (a)(12) 
through (a)(15).
    The revision reads as follows:


Sec.  701.301  What do certain terms in this subchapter mean?

* * * * *
    3. Amend newly designated Sec.  701.302 by adding a section 
heading, and by revising paragraph (c)(6) to read as follows:


Sec.  701.302  Who is an employee?

* * * * *
    (c) * * *
    (6) Individuals employed to build any recreational vessel under 
sixty-five feet in length, or individuals employed to repair any 
recreational vessel, or to dismantle any part of a recreational vessel 
in connection with the repair of such vessel. For purposes of this 
paragraph, the special rules set forth at Sec. Sec.  701.501 through 
701.505 apply.
    4. Add Sec.  701.303 to read as follows:


Sec.  701.303  Is a worker who engages in both qualifying ``maritime 
employment'' and non-qualifying duties in the course of employment an 
``employee'' covered by the LHWCA?

    (a) An individual is a covered ``employee'' if he or she performs 
at least some work in the course of employment that qualifies as 
``maritime employment'' and that work is not-
    (1) Infrequent, episodic, or too minimal to be a regular part of 
his or her overall employment; or
    (2) Otherwise excluded from coverage under Sec.  701.302.
    (b) The individual's status as a covered ``employee'' does not 
depend on whether he or she was engaged in qualifying maritime 
employment or non-qualifying work when injured.
    5. Add a new undesignated center heading following Sec.  701.401 
and add Sec.  701.501 to read as follows:

Special Rules for the Recreational Vessel Exclusion From the Definition 
of ``Employee''


Sec.  701.501  What is a Recreational Vessel?

    (a) Recreational vessel means a vessel--
    (1) Being manufactured or operated primarily for pleasure; or
    (2) Leased, rented, or chartered to another for the latter's 
pleasure.
    (b) Recreational vessel does not include a--
    (1) ``Passenger vessel'' as defined by 46 U.S.C. 2101(22);
    (2) ``Small passenger vessel'' as defined by 46 U.S.C. 2101(35);
    (3) ``Uninspected passenger vessel'' as defined by 46 U.S.C. 
2101(42);
    (4) Vessel routinely engaged in ``commercial service'' as defined 
by 46 U.S.C. 2101(5); or
    (5) Vessel that routinely carries ``passengers for hire'' as 
defined by 46 U.S.C. 2101(21a).
    (c) All subsequent amendments to the statutes referenced in 
paragraph (b) of this section are incorporated. The statutes referenced 
in paragraph (b) and all subsequent amendments thereto apply as 
interpreted by regulations in Title 46 of the Code of Federal 
Regulations.
    6. Add Sec.  701.502 to read as follows:


Sec.  701.502  What types of work may exclude a recreational-vessel 
worker from the definition of ``employee''?

    (a) An individual who works on recreational vessels may be excluded 
from the definition of ``employee'' when:
    (1) The individual's date of injury is before February 17, 2009, 
the injury is covered under a State workers' compensation law, and the 
individual is employed to:
    (i) Build any recreational vessel under sixty-five feet in length; 
or
    (ii) Repair any recreational vessel under sixty-five feet in 
length; or
    (iii) Dismantle any recreational vessel under sixty-five feet in 
length.
    (2) The individual's date of injury is on or after February 17, 
2009, the injury is covered under a State workers' compensation law, 
and the individual is employed to:
    (i) Build any recreational vessel under sixty-five feet in length; 
or
    (ii) Repair any recreational vessel; or
    (iii) Dismantle any recreational vessel to repair it.
    (b) In applying paragraph (a) of this section, the following rules 
apply:

[[Page 63428]]

    (1) ``Length'' means a straight line measurement of the overall 
length from the foremost part of the vessel to the aftmost part of the 
vessel, measured parallel to the center line. The measurement must be 
from end to end over the deck, excluding sheer. Bow sprits, bumpkins, 
rudders, outboard motor brackets, handles, and other similar fittings, 
attachments, and extensions are not included in the measurement.
    (2) ``Repair'' means any repair of a vessel including 
installations, painting and maintenance work. Repair does not include 
alterations or conversions that render the vessel a non-recreational 
vessel under Sec.  701.501. For example, a worker who installs 
equipment on a private yacht to convert it to a passenger-carrying 
whale-watching vessel is not employed to ``repair'' a recreational 
vessel. Repair also does not include alterations or conversions that 
render a non-recreational vessel recreational under Sec.  701.501.
    (3) ``Dismantle'' means dismantling any part of a vessel to 
complete a repair but does not include dismantling any part of a vessel 
to complete alterations or conversions that render the vessel a non-
recreational vessel under Sec.  701.501, or render the vessel 
recreational under Sec.  701.501, or to scrap or dispose of the vessel 
at the end of the vessel's life.
    (c) An individual who performs recreational-vessel work not 
excluded under paragraph (a) of this section or who engages in other 
qualifying maritime employment in addition to recreational-vessel work 
excluded under paragraph (a) of this section will not be excluded from 
the definition of ``employee.'' (See Sec.  701.303).
    7. Add Sec.  701.503 to read as follows:


Sec.  701.503  Did the American Recovery and Reinvestment Act of 2009 
Amend the Recreational Vessel Exclusion?

    Yes. The amended exclusion was effective February 17, 2009, the 
effective date of the American Recovery and Reinvestment Act of 2009.
    8. Add Sec.  701.504 to read as follows:


Sec.  701.504  When does the 2009 amended version of the recreational 
vessel exclusion apply?

    (a) Date of injury. Whether the amended version applies depends on 
the date of the injury for which compensation is claimed. The following 
rules apply to determining the date of injury:
    (1) Traumatic injury. If the individual claims compensation for a 
traumatic injury, the date of injury is the date the employee suffered 
harm. For example, if the individual injures an arm or leg in the 
course of his or her employment, the date of injury is the date on 
which the individual was hurt.
    (2) Occupational disease or infection. Occupational illnesses and 
infections are generally caused by exposure to a harmful substance or 
condition. If the individual claims compensation for an occupational 
illness or infection, the date of injury is the date the illness 
becomes ``manifest'' to the individual. The injury is ``manifest'' when 
the individual learns, or reasonably should have learned, that he or 
she is suffering from the illness, that the illness is related to his 
or her work with the responsible employer, and that he or she is 
disabled as a result of the illness.
    (3) Hearing loss. If the individual claims compensation for hearing 
loss, the date of injury is the date the individual receives an 
audiogram with an accompanying report which indicates the individual 
has suffered a loss of hearing that is related to employment.
    (4) Death-benefit claims. If the individual claims compensation for 
an employee's death, the date of injury is the date of the employee's 
death, even if his or her death was the result of an event or incident 
that happened on an earlier date.
    (b) If the date of injury is before February 17, 2009, the 
individual's entitlement is governed by section 2(3)(F) as it existed 
prior to the 2009 amendment.
    (c) If the date of injury is on or after February 17, 2009, the 
employee's eligibility is governed by the 2009 amendment to section 
2(3)(F).
    9. Add Sec.  701.505 to read as follows:


Sec.  701.505  May an employer stop paying benefits awarded prior to 
the effective date of the recreational vessel exclusion amendment if 
the employee would now fall within the exclusion?

    No. If an individual was awarded compensation for an injury 
occurring before February 17, 2009, the employer must still pay all 
benefits awarded, including disability compensation and medical 
benefits, even if the employee would be excluded from coverage under 
the amended exclusion.

Shelby Hallmark,
Director, Office of Workers' Compensation Programs.
[FR Doc. 2010-25895 Filed 10-14-10; 8:45 am]
BILLING CODE 4510-CF-P