[Federal Register: October 15, 2010 (Volume 75, Number 199)]
[Proposed Rules]
[Page 63425-63428]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15oc10-17]
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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.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions on the Web site for submitting comments.
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.
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.
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:
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New designation in Sec.
Former designation in Sec. 701.301 701.302
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(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]
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