ISSUE: Recreational Vessels

On December 30, 2011, the U.S. Department of Labor (DOL) published final regulations (at 20 CFR Part 701) implementing the amendment to section 902(3)(F) that was contained in the American Recovery and Reinvestment Act (ARRA).  This was the amendment that removed the sixty five foot limitation for the exclusion from Longshore Act coverage for workers employed to repair or dismantle in connection with repair any recreational vessel.

The current, amended law, which was effective on February 17, 2009, states:

Section 902(3) – The term “employee” means 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, but such term does not include …

            (F) 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; 

If such individuals … are subject to coverage under a State workers’ compensation law.

So, the under sixty five foot exclusion now only applies to workers who build recreational vessels.  There is no longer any size limit for workers who repair or dismantle in connection with repair any recreational vessel.  These workers are excluded from coverage under the Longshore Act.  This change is effective for injuries occurring on or after February 17, 2009.

The new regulations, effective January 30, 2012, provide the interpretation of the U.S. Department of Labor, which administers the Longshore Act.  To the extent that the regulations are consistent with the statute, they have the force of law.

Noteworthy points:

1)      The DOL has attempted to define “recreational vessels”.  They have done this by providing two different definitions; one is for manufacturers or builders of recreational vessels, and the other is for repairers.  For employers who are manufacturers or builders, a vessel is a recreational vessel if it is intended, based on design and construction, to be for ultimate recreational use.  For repairers, the actual usage of the vessel at the time of repair or dismantling in connection with repair is the test.

2)      “public vessels” as defined, i.e., vessels owned or bareboat chartered and operated by the U.S. or by a state or political subdivision thereof and not used for military or traditionally commercial activity at the time of repair, are considered to be recreational vessels. 

3)      For occupational disease and hearing loss cases the date of exposure is the date of injury for coverage questions under amended section 902(3)(F), and not the date of manifestation or triggering audiogram.

4)      For death cases, the date of the event or exposure that led to the death is the date of injury, not the date of death.

5)      For cumulative trauma cases, the date of injury is the same as in all other aggravation type cases.

It is clear that DOL has gone to great lengths to seriously address all of the comments they received following the publication of the initial Notice of Proposed Rulemaking on August 17, 2010.  

Even so, I’m not sure that we yet know what a recreational vessel is at the fringes.  For example, the test for manufacturers is whether the vessel “appears intended, based on its design and construction, to be for ultimate recreational uses.”  For repairers, the test is how the vessel has been operating “around the time” of the repair.  The point is made that “occasional” non-recreational use does not alter the vessel’s “core recreational purpose” and should not take a vessel outside of the recreational vessel definition.  The final rule provides that a vessel remains recreational unless it falls within the designated Coast Guard vessel categories on a “more than infrequent basis”.

This is not exactly bright line language.  But I think that it’s the best that DOL could do given the general language used in the ARRA amendment.  At any rate, none of the many comments on the initial Notice of Proposed Rulemaking contained better suggestions.

The burden as to whether the amended section 902(3)(F) exclusion applies to a particular employee will be on the employer, whether a manufacturer/builder or a repairer.  Remember that those employees who you might consider to “walk in and out of coverage” in that they work on both recreational and commercial vessels, are most likely covered by the Longshore Act full time.

If you have any questions with regard to any aspect of this amendment to the Longshore Act or to the DOL’s final regulations please let me know.

ISSUE: U.S. Department of Labor, Notice of Proposed Rule Making

Remember when we found out that the Stimulus Bill (American Reinvestment and Recovery Act of 2009) had amended Section 902(3)(F) of the Longshore Act, changing the exclusion for recreational vessel workers?

Well, on August 17, 2010, the U.S. Department of Labor (DOL), Office of Workers’ Compensation Programs, finally published a Notice of Proposed Rule Making and Request for Comments in the Federal Register regarding this amendment.

The Notice contains proposed new regulations implementing the recreational vessel amendment to section 902(3)(F). 

A quick way to access the Notice is to go to www.regulations.gov, click on Proposed Rules, and enter key word “recreational vessel”.  If you have any interest or concerns with regard to this amendment I urge you to review the DOL’s comprehensive Notice. 

Review of Amendment

OLD LAW – The following employees are excluded from Longshore Act coverage:  “individuals employed to build, repair or dismantle any recreational vessel under sixty-five feet in length.”

NEW LAW  – The following employees are excluded from coverage:  “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.”

The Amendment leaves in place the sixty-five foot limit for employees who build recreational vessels.  It removes the limit only for those employees who are employed to repair recreational vessels or to dismantle recreational vessels in connection with repair.  It also leaves in place the condition that the excluded employees have coverage under a state workers’ compensation law.

The Notice of Proposed Rulemaking contains several noteworthy points:

1)      The effective date of the amendment is February 17, 2009, so it affects injuries occurring on or after that date.

2)      The Notice creates a “general reference” to Coast Guard statutes for the purpose of defining recreational vessels.

3)      The Notice draws a distinction between workers employed to “dismantle” a recreational vessel and workers employed to “dismantle in connection with repair” a recreational vessel.  In DOL’s view, “dismantle” outside of the repair context is the equivalent of ship breaking, an enumerated occupation in section 902(3).  In DOL’s view section 902(3)(F) no longer excludes workers who dismantle recreational vessels except when the dismantling is in connection with repair.

4)      Workers employed to transform a recreational vessel into a commercial vessel, or a commercial vessel into a recreational vessel, are engaged in ship conversion, and in DOL’s view these workers are covered by the Longshore Act.

5)      The Notice clarifies how to measure the length of a recreational vessel (again, by reference to Coast Guard regulations).

6)      The Notice also addresses the issue of workers who walk in and out of coverage by doing both excluded and non-excluded work during their employment.  The Notice codifies DOL’s long standing position that employees whose employment requires them to spend at least some of their time in indisputably longshoring operations are covered by the Longshore Act even if injured while performing non-maritime work.  For example, a worker who is injured while repairing a recreational vessel but who also as part of his regular duties works on commercial vessels or builds recreational vessels over 65 feet in length is covered by the Longshore Act for his entire employment. 

Comments are due by October 18, 2010.  The Notice explains the various ways that comments can be filed with DOL.