Regulations Implementing the Longshore and Harbor Workers' Compensation Act: Recreational Vessels, 63425-63428 [2010-25895]
Download as PDF
<![CDATA[
Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules
Transportation, 1200 New Jersey
Avenue, SE., West Building Ground
Floor, Room W12–140, Washington, DC
20590.
• Fax: Fax comments to Docket
Operations at 202–493–2251.
• Hand Delivery: Bring comments to
Docket Operations in Room W12–140 of
the West Building Ground Floor at 1200
New Jersey Avenue, SE., Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
For more information on the rulemaking
process, see the SUPPLEMENTARY
INFORMATION section of this document.
Privacy: We will post all comments
we receive, without change, to https://
www.regulations.gov, including any
personal information you provide.
Using the search function of our docket
Web site, anyone can find and read the
comments received into any of our
dockets, including the name of the
individual sending the comment (or
signing the comment for an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (65 FR
19477–78) or you may visit https://
DocketsInfo.dot.gov.
Docket: To read background
documents or comments received, go to
https://www.regulations.gov at any time
or to Docket Operations in Room W12–
140 of the West Building Ground Floor
at 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Shirley Stroman, ARM–104, Office of
Rulemaking, Federal Aviation
Administration, 800 Independence
Avenue, SW., Washington, DC 20591; email shirley.stroman@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
You may refer to the NPRM published
in the Federal Register (75 FR 55852) on
September 14, 2010 for detailed
instructions on filing your comments to
the proposed rule and how we will
handle them.
mstockstill on DSKH9S0YB1PROD with PROPOSALS
Availability of Rulemaking Documents
You can get an electronic copy using
the Internet by:
(1) Searching the Federal
eRulemaking Portal at https://
www.regulations.gov;
(2) Visiting the Office of Rulemaking’s
Web page at https://www.faa.gov/avr/
arm/index.cfm; or
(3) Accessing the Government
Printing Office’s Web page at https://
www.gpoaccess.gov/fr/.
VerDate Mar<15>2010
16:00 Oct 14, 2010
Jkt 223001
You can also get a copy by sending a
request to the Federal Aviation
Administration, Office of Rulemaking,
ARM–1, 800 Independence Avenue,
SW., Washington, DC 20591, or by
calling (202) 267–9680. Make sure to
identify the docket number, notice
number, or amendment number of this
rulemaking.
Background
On September 14, 2010, the FAA
published an NPRM (75 FR 55852)
entitled ‘‘Flightcrew Member Duty and
Rest Requirements.’’ The proposed
regulation recognizes the growing
similarities between the types of
operations and the universality of
factors that lead to fatigue in most
individuals. Fatigue threatens aviation
safety because it increases the risk of
pilot error that could lead to an
accident. The new requirements, if
adopted, would eliminate the current
distinctions between domestic, flag and
supplemental operations. The proposal
provides different requirements based
on the time of day, whether an
individual is acclimated to a new time
zone, and the likelihood of being able to
sleep under different circumstances.
The NPRM comment period is
scheduled to close on November 15,
2010.
Since publication of the NPRM, the
FAA has received several petitions to
extend the comment period. Requests
for extension include those from
National Air Carrier Association, Cargo
Airline Association (CAA), United
Parcel Service (UPS), Atlas Air
Worldwide Holdings, Inc., Air
Transport Association of America, Inc.,
(ATA), Air Carrier Association of
America, Regional Airline Association,
and others. The requests include ones
for a 30-day extension, 45-day
extension, 60-day extension, and 180day extension.
In general, the petitioners said the
additional time is necessary due to the
length and complexity of the NPRM and
Regulatory Impact Analysis. Several
petitioners, including CAA, UPS, and
ATA, also said the recent statutory
mandate that requires carriers to submit
a Fatigue Risk Management Plan to the
FAA by October 30, 2010, will take time
and resources away from developing
comments to the NPRM.
The FAA has reviewed the requests
for an extension of the comment period
on the ‘‘Flightcrew Member Duty and
Rest Requirements’’ NPRM. While we
understand the reasons for these
requests, we do not believe an extension
is necessary for the reasons stated
below.
PO 00000
Frm 00022
Fmt 4702
Sfmt 4702
63425
FAA Response to Comment Period
Extension Requests
In 2009, the FAA established the
Flight and Duty Time Limitations and
Rest Requirements Aviation Rulemaking
Committee (ARC). The ARC provided a
forum for the aviation industry to give
extensive input on revising current
flight and duty time limitations
regulations. Therefore, the FAA does
not believe it is necessary to extend the
comment period for the proposed rule.
Consequently, the requests for an
extension of the comment period are
denied. Also, in the recently passed
Airline Safety and Federal Aviation
Administration Extension Act of 2010,
Congress mandated that the FAA issue
a final rule on pilot fatigue by August
1, 2011. To help ensure that we meet
this deadline, the FAA must receive
comments to its proposed rule by
November 15, 2010. However, as stated
in Title 14 Code of Federal Regulations
§ 11.45, we will consider comments
filed late if it is possible to do so
without incurring expense or delay.
The requests for extension and this
Notice will be included in the
rulemaking docket.
Issued in Washington, DC, on October 12,
2010.
Dennis Pratte,
Acting Deputy Director, Office of Rulemaking.
[FR Doc. 2010–26142 Filed 10–14–10; 8:45 am]
BILLING CODE 4910–13–P
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
Office of Workers’
Compensation Programs, Labor.
ACTION: Notice of proposed rulemaking;
request for comments.
AGENCY:
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’
SUMMARY:
E:\FR\FM\15OCP1.SGM
15OCP1
mstockstill on DSKH9S0YB1PROD with PROPOSALS
63426
Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules
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: https://
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
VerDate Mar<15>2010
16:00 Oct 14, 2010
Jkt 223001
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 https://www.regulations.gov, including
any personal information provided.
Docket: To read background
documents or comments received, go to
https://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
PO 00000
Frm 00023
Fmt 4702
Sfmt 4702
vessel, or to dismantle any part of a
recreational vessel in connection with
the repair of such vessel,’’ and retains
the State-workers’-compensationcoverage 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’
E:\FR\FM\15OCP1.SGM
15OCP1
Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules
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
mstockstill on DSKH9S0YB1PROD with PROPOSALS
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 § 803, 123 Stat. 115, 187 (2009).
2. Revise the undesignated center
heading following § 701.203 to read as
follows:
Definitions and Use of Terms
*
*
*
VerDate Mar<15>2010
*
*
16:00 Oct 14, 2010
Jkt 223001
2a. Amend § 701.301 as follows:
a. Revise the section heading;
b. Redesignate paragraph (a)(12) as
§ 701.302, with its sub-paragraphs
redesignated according to the following
table:
Former designation in
§ 701.301
New designation in
§ 701.302
(a)(12)(i) introductory
text.
(a)(12)(i)(A) ...............
(a)(12)(i)(B) ...............
(a)(12)(i)(C) ...............
(a)(12)(ii) introductory
text.
(a)(12)(ii)(A) ...............
(a)(12)(ii)(B) ...............
(a)(12)(iii) introductory
text.
(a)(12)(iii)(A) ..............
(a)(12)(iii)(B) ..............
(a)(12)(iii)(C) ..............
(a)(12)(iii)(D) ..............
(a)(12)(iii)(E) ..............
(a)(12)(iii)(F) ..............
(a) introductory text.
(a)(1).
(a)(2).
(a)(3).
(b) introductory text.
(b)(1).
(b)(2).
(c) introductory text.
(c)(1).
(c)(2).
(c)(3).
(c)(4).
(c)(5).
(c)(6).
c. Redesignate paragraphs (a)(13)
through (a)(16) as (a)(12) through (a)(15).
The revision reads as follows:
§ 701.301 What do certain terms in this
subchapter mean?
*
*
*
*
*
3. Amend newly designated § 701.302
by adding a section heading, and by
revising paragraph (c)(6) to read as
follows:
§ 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
§§ 701.501 through 701.505 apply.
4. Add § 701.303 to read as follows:
§ 701.303 Is a worker who engages in both
qualifying ‘‘maritime employment’’ and nonqualifying 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 § 701.302.
(b) The individual’s status as a
covered ‘‘employee’’ does not depend on
whether he or she was engaged in
PO 00000
Frm 00024
Fmt 4702
Sfmt 4702
63427
qualifying maritime employment or
non-qualifying work when injured.
5. Add a new undesignated center
heading following § 701.401 and add
§ 701.501 to read as follows:
Special Rules for the Recreational
Vessel Exclusion From the Definition of
‘‘Employee’’
§ 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 § 701.502 to read as follows:
§ 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:
E:\FR\FM\15OCP1.SGM
15OCP1
63428
Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules
(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 § 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 § 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 § 701.501,
or render the vessel recreational under
§ 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 § 701.303).
7. Add § 701.503 to read as follows:
§ 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 § 701.504 to read as follows:
mstockstill on DSKH9S0YB1PROD with PROPOSALS
§ 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
VerDate Mar<15>2010
16:00 Oct 14, 2010
Jkt 223001
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 § 701.505 to read as follows:
§ 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]
BILLING CODE 4510–CF–P
PO 00000
Frm 00025
Fmt 4702
Sfmt 4702
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 67
RIN 1024–AD65
Historic Preservation Certifications for
Federal Income Tax Incentives
National Park Service, Interior.
Proposed rule.
AGENCY:
ACTION:
The National Park Service
(NPS) proposes to amend its procedures
for obtaining historic preservation
certifications for rehabilitation of
historic structures. Individuals and
corporations must obtain these
certifications to be eligible for tax
credits from the Internal Revenue
Service (IRS). This rule: Incorporates
references to the revised sections of the
Internal Revenue Code containing the
requirements for obtaining a tax credit;
replaces references to NPS’s regional
offices with references to its Washington
Area Service Office (WASO); requires
NPS to accept appeals for denial of
certain certifications; and removes the
certification fee schedule from the
regulation. These latter two revisions
provide an additional avenue for
appeals and allow NPS to update fees by
publishing a notice in the Federal
Register as administrative costs change.
DATES: Comments must be received by
December 14, 2010.
ADDRESSES: You may submit comments,
identified by the number 1024–AD65,
by any of the following methods:
—Federal rulemaking portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
—Mail: National Park Service, Attn.
Michael J. Auer, 1849 C Street, NW.
(org. code 2255), Washington, DC
20240.
All submissions must include the
agency name and the number 1024–
AD65. We will post all comments
without change to https://
www.regulations.gov, including any
personal information provided. For
additional information, see ‘‘Public
Participation’’ under SUPPLEMENTARY
INFORMATION.
FOR FURTHER INFORMATION CONTACT:
Michael J. Auer, National Park Service,
1849 C Street, NW. (org. code 2255),
Washington, DC 20240;
Michael_Auer@nps.gov; fax: 202–371–
1616.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Background
Section 47 of Title 26 of the United
States Code (the Internal Revenue
E:\FR\FM\15OCP1.SGM
15OCP1
]]>Agencies
[Federal Register Volume 75, Number 199 (Friday, October 15, 2010)]
[Proposed Rules]
[Pages 63425-63428]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-25895]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: https://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 https://www.regulations.gov, including any personal information provided.
Docket: To read background documents or comments received, go to
https://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:
------------------------------------------------------------------------
New designation in Sec.
Former designation in Sec. 701.301 701.302
------------------------------------------------------------------------
(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).
------------------------------------------------------------------------
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]
BILLING CODE 4510-CF-P
