Division of Longshore and Harbor Workers' Compensation (DLHWC)
RECREATIONAL VESSEL FAQS |
The American Recovery and Reinvestment Act of 2009 (ARRA) amended section 2(3)(F) of the Longshore and Harbor Workers' Compensation Act (Longshore Act or Act). Section 2(3)(F) excludes certain recreational vessel workers from the Act's coverage. On December 30, 2011, the Department of Labor, Office of Workers' Compensation Programs, Division of Longshore and Harbor Workers' Compensation, issued new regulations implementing the amendment. See 20 CFR 701.301 et seq . Federal Register publication. These FAQs are intended to help you understand what these new regulations mean.
1. How did ARRA change the Longshore Act?
The ARRA reduced the number of workers in the recreational-vessel-repair industry covered under the Longshore Act.
Prior to the ARRA amendment, workers employed to build, repair, or dismantle any recreational vessel under 65 feet in length were excluded from Longshore Act coverage, provided that they were covered by a State's workers' compensation law. This law had been in place since the 1984 Amendments to the Act.
The ARRA amendment changed this exclusion by eliminating the length limitation as follows. Now, individuals employed to repairany recreational vessel (or to dismantle any part of a recreational vessel to make repairs), regardless of vessel length, are excluded from coverage. As before, this exclusion only applies if these individuals are covered by a State's workers' compensation law.
2. When did the ARRA amendment become effective?
This change in the law became effective on February 17, 2009. Whether it applies in any given case is determined by the date of the worker's injury. The 1984 Amendment to the Longshore Act covers injuries that occurred prior to February 17, 2009; the ARRA Amendment applies to injuries occurring on or after February 17, 2009. Also, see "Date of Injury" section below.
3. Does the ARRA amendment change the Longshore Act's "situs" requirement?
No. Longshore Act coverage for workers building, repairing, or dismantling recreational vessels both before and after the ARRA amendment is limited to injuries occurring on the "navigable waters" of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining areas customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel. This is commonly known as the "situs" requirement.
If an individual works at a completely landlocked recreational-vessel-manufacturing facility, repair shop, boat dealer, or other facility that does not satisfy the "situs" test, then the individual is not covered by the Act.
4. What is a recreational vessel?
In general, the Department adopts the definition in Chapter 21 of Title 46 of the U.S. Code, Vessels and Seamen, administered by the Coast Guard (see 46 U.S.C. 2101(25)): a recreational vessel is a vessel that is manufactured or operated primarily for pleasure or leased, rented, or chartered to another for pleasure. This is the same definition that has appeared in the regulations since 1986. See 20 C.F.R. 701.301(a)(12)(iii)(F) (2010).
5. What other rules apply in determining whether a vessel is manufactured or operated primarily for pleasure or leased, rented, or chartered to another for pleasure?
The new regulations further refine the general recreational-vessel definition. The regulations provide that a vessel being repaired or dismantled for repair is generally not a recreational vessel if it: carries any passengers-for-hire; is chartered with crew provided; is chartered and carries more than 12 passengers; or is engaged in commercial service. If, however, the vessel had been operating in these capacities on only an infrequent basis, the vessel may still be considered recreational.
6. How does a recreational-vessel manufacturer or builder determine whether the vessel it is building meets the regulation's recreational-vessel definition?
A vessel being manufactured or built, or being repaired under warranty by its manufacturer or builder, is a recreational vessel if the vessel appears intended, based on its design and construction, for ultimate recreational uses. Under this rule, the manufacturer or builder bears the burden of establishing that the vessel is recreational.
7. Are "public vessels" included within the definition of a recreational vessel?
Generally, a "public vessel" within the meaning of the new regulations is a vessel that is owned or bareboat-chartered and operated by the federal, state, or municipal government for the interest of the public. Some examples are vessels used for fish and wildlife conservation enforcement, public safety (firefighting and some Coast Guard vessels), and for law enforcement in undercover operations. If a publicly owned or operated vessel is recreational by its design and construction, it will be considered to be a recreational vessel for purposes of applying the Longshore Act. A vessel is not a "public vessel" under the rules, however, if it is normally engaged in military, commercial, or traditionally commercial activity, such as ferrying passengers.
8. When is the time for determining whether a vessel's use is recreational?
This determination is generally made when the vessel is being built, repaired, or dismantled.
9. Will occasional non-recreational use change a vessel's status as a recreational vessel?
No. Infrequent non-recreational use does not alter a vessel's status as a recreational vessel.
10. How is the length of a recreational vessel measured?
A recreational vessel's length is measured from foremost to aftmost point, parallel to the center line and end to end over the deck, excluding sheer. Bow sprits, bumpkins, rudders, and similar attachments or fittings are not included in the length measurement.
11. I operate a boat repair yard. Do I need Longshore insurance?
You need Longshore insurance if you employ workers to:
- build commercial vessels of any size or recreational vessels over 65 feet, or
- dismantle commercial or recreational vessels of any size for scrap, or
- repair commercial vessels of any size, or
- convert an existing commercial vessel to recreational use or vice versa.
12. I am in the recreational vessel manufacturing business. Do I need Longshore insurance?
Maybe. It will depend on the size of the vessels you build. You need Longshore insurance if you employ workers to build recreational vessels 65 feet or longer in length. But if your business is not located on the navigable waters of the United States or in other maritime sites enumerated in Section 3(a) of the Longshore Act, it does not meet the situs requirement for coverage and therefore Longshore insurance is not required.
13. My company manufactures a variety of vessels. I know that under the Act a determination needs to be made at the time of manufacture as to whether a particular vessel we manufacture will be recreational or non-recreational. I am concerned because I do not know to whom these vessels will be sold or for what purpose.
Your company does not need to know the purchaser's identity or the nature of the vessel's ultimate use. At the time of manufacture, a vessel is recreational if it is intended, based on design and construction, to be for recreational use.
14. My business includes both commercial and recreational boat repair. Do I need Longshore insurance?
Yes. You will need Longshore insurance for workers who perform any work on commercial vessels, even if most of their work is on recreational vessels. Only those workers who work exclusively on recreational vessels are not covered by the Act.
15. I operate a boat repair yard. I have offered to repair the boats that the police department uses. If I do this, will I need to have Longshore insurance for my employees solely due to this work?
Probably not. It will depend on several factors including who owns the boat or bareboat-charters and operates it. It will also depend on the boat's design and its normal use.
Under the regulations, a "public vessel" is deemed to be recreational (and work repairing it is excluded from Longshore Act coverage) if it meets the following criteria: the vessel is owned or bareboat-chartered and operated by the United States, or by a State or a "political subdivision thereof," at the time of repair or dismantling for repair' the vessel shares elements of design and construction with traditional recreational vessels; and the vessel is not normally engaged in a military or traditionally commercial undertaking (such as ferrying passengers).
16. I operate a boat repair yard. Some recreational vessels brought in for repair are used by their owners for their own recreation most of the time, but are hired out for commercial purposes to others occasionally. Do I need Longshore insurance?
It depends on how frequently the boat-owners use their boats for commercial (non-recreational) purposes. Infrequent non-recreational use does not alter a vessel's status as a recreational vessel. Your employees who work exclusively on the repair of such vessels are not covered under the Act.
17. I employ workers to dismantle recreational vessels for scrap at the end of the vessel's life. Do I need Longshore insurance?
Yes. Prior to the ARRA amendment, individuals who dismantled end-of-life recreational vessels under 65 feet in length were excluded from Longshore Act coverage. But the amended provision now only excludes from coverage those individuals who dismantle recreational vessels for repair (as opposed to scrapping the vessel).
18. I am employed to repair commercial vessels and spend most of my time on the docks or on board ships. But I was injured while completing some paperwork in the dockside office for my employer. Am I covered?
Probably. The U.S. Supreme Court has ruled that as long as you perform at least some duties that are covered under the Longshore Act as a part of your overall employment, it is not relevant that you were injured while performing non-covered duties.
19. What is the "date of injury" with regard to occupational disease and hearing loss?
The date of injury is the date the individual was exposed to the harmful substance, condition, stimulus, or workplace noise.
20. With regard to cumulative trauma, what is the "date of injury?"
The date of injury is any date on which a workplace trauma worsens the condition at issue.
21. What is the "date of injury" for a death-benefit claim?
The date of injury is the date of the workplace incident that caused or contributed to the worker's death, even if time passes between the incident and the time of death.
22. What happens if an individual is covered under a State's workers' compensation law and is employed to build, repair, or dismantle any recreational vessel under 65 feet in length, and has a date of injury that is before February 17, 2009?
This individual is excluded from the Longshore Act definition of "employee" and therefore, not covered under the Act. The effective date of the ARRA amendment is February 17, 2009. Therefore, its provisions only apply if the date of injury is on or after February 17, 2009. For claims arising prior to February 17, 2009, the "pre-ARRA amendment" statute governs. The ARRA amendment is not retroactive.
23. I worked in a boat yard for many years and I was exposed to harmful asbestos while repairing recreational vessels. I was covered under the Act before ARRA but am excluded from coverage now. Can I still claim Longshore benefits?
Yes. If you have sustained an occupational disease, you are still entitled to benefits if a portion of the cumulative harmful exposure occurred during a period of covered employment prior to February 17, 2009. Diseases resulting from exposure solely during employment on or after February 17, 2009 are not covered.
24. What are some typical examples of when the Act covers workers in the recreational-vessel-repair business based on various dates of injury?
The following table illustrates how different dates of injury affect coverage under the Act as amended by ARRA. The last column also indicates which insurance carrier (for non-self-insured employers) would be liable for compensation. For all examples, assume the worker was employed to repair recreational vessels over 65 feet in length. Assume all exposure and injuries resulted in disability. Is the worker covered by the LHWCA in the following scenarios?
Type of Injury or Harmful Exposure | Injury or Last Exposure Date | Disability Onset Date | Covered | Carrier on the Risk on |
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1.a. Traumatic Injury to knee | 2/16/09 | 2/17/09 | Yes | 2/16/09 |
1.b. Traumatic Injury to knee | 2/17/09 | 2/18/09 | No | 2/17/09 |
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2.a. Hearing loss due to cumulative noise exposure | 2/16/09 | 2/17/09 | Yes | 2/16/09 |
2.b. Hearing loss due to cumulative noise exposure | 2/17/09 | 2/18/09 | Yes* | 2/16/09 |
2.c. Hearing loss due to noise exposure after 2/17/09 only | 2/17/09 | 2/18/09 | No | 2/17/09 |
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3.a. Cumulative exposure to asbestos | 2/16/09 | 1/1/10 | Yes | 2/16/09 |
3.b. Cumulative exposure to asbestos | 2/17/09 | 1/1/10 | Yes* | 2/16/09 |
3.c. Cumulative exposure to asbestos, no exposure prior to 2/17/09 | 2/17/09 | 1/1/10 | No | 2/17/09 |
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4.a. Cumulative Trauma to knee | 2/16/09 | 2/17/09 | Yes | 2/16/09 |
4.b. Cumulative Trauma to knee | 2/17/09 | 2/18/09 | Yes* | 2/16/09 |
4.c. Cumulative Trauma to knee, no employment prior to 2/17/09 | 2/17/09 | 2/18/09 | No | 2/17/09 |
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5.a. Heart attack resulting in disability | 2/16/09 | 2/17/09 | Yes | 2/16/09 |
5.b. Heart attack resulting in disability | 2/17/09 | 2/18/09 | No | 2/17/09 |
5.c. Heart attack resulting in initial disability and subsequent death | 2/16/09 | 1/1/10 (Date of Death) | Yes | 2/16/09 |
5.d. Heart attack resulting in initial disability and subsequent death | 2/17/09 | 1/1/10 (Date of Death) | No | 2/17/09 |
* Coverage derived from covered employment on or prior to 2/17/09.