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.
- 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.
- “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.
- 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.
- 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.
- 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.