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.