PART 701—GENERAL; ADMINISTERING AGENCY; DEFINITIONS AND USE OF TERMS Authority: 5 U.S.C. 301, 8171 et seq.; et seq.; et seq.; Source: 38 FR 26860, Sept. 26, 1973, unless otherwise noted. Rules in This Subchapter § 701.101 Scope of this subchapter and subchapter B. (a) This subchapter contains the regulations governing the administration of the Longshore and Harbor Workers' Compensation Act, as amended (LHWCA), 33 U.S.C. 901 et seq., et seq.; et seq. (b) The regulations in this subchapter also apply to claims filed under the District of Columbia Workmen's Compensation Act (DCCA), 36 D.C. Code 501 et seq. et seq. (c) The regulations governing the administration of the Black Lung Benefits Program are in subchapter B of this chapter. [70 FR 43232, July 26, 2005] § 701.102 Organization of this subchapter. Part 701 provides a general description of the regulations in this subchapter; sets forth information regarding the persons and agencies within the Department of Labor authorized by the Secretary of Labor to administer the Longshore and Harbor Workers' Compensation Act, its extensions and the regulations in this subchapter; and defines and clarifies use of specific terms in the several parts of this subchapter. Part 702 of this subchapter contains the general administrative regulations governing claims filed under the LHWCA. Part 703 of this subchapter contains the regulations governing insurance carrier authorizations, insurance carrier security deposits, self-insurer authorizations, and certificates of compliance with the insurance regulations, as required by sections 32 and 37 of the LHWCA (33 U.S.C. 932, 937). Because the extensions of the LHWCA ( see [70 FR 43232, July 26, 2005] Office of Workers' Compensation Programs § 701.201 Office of Workers' Compensation Programs. The Office of Workers' Compensation Programs is responsible for administering the LHWCA and its extensions. [75 FR 63380, Oct. 15, 2010] §§ 701.202-701.203 [Reserved] Definitions and Use of Terms § 701.301 What do certain terms in this subchapter mean? (a) As used in this subchapter, except where the context clearly indicates otherwise: (1) Act LHWCA et seq. see (2) Secretary (3)-(4) [Reserved] (5) Office of Workers' Compensation Programs OWCP the Office Office of Workmen's Compensation Programs Office of Workers' Compensation Programs see (6) Director (7) District Director Deputy Commissioner (8) Administrative Law Judge (9) Chief Administrative Law Judge (10) Board or Benefits Review Board (11) Department (12) Employer (13) Carrier (14) The terms wages, national average weekly wage, injury, disability, death, compensation (15) Claimant (b) The definitions contained in paragraph (a) of this section shall not be considered to derogate from any definitions or delimitations of terms in the LHWCA as amended or any of its statutory extensions in any case where such statutory definitions or delimitations would be applicable. (c) As used in this subchapter, the singular includes plural and the masculine includes the feminine. [38 FR 26860, Sept. 26, 1973, as amended at 42 FR 3848, Jan. 21, 1977; 50 FR 391, Jan. 3, 1985; 51 FR 4281, Feb. 3, 1986; 55 FR 28606, July 12, 1990; 70 FR 43233, July 26, 2005; 76 FR 82127, Dec. 30, 2011; 77 FR 37286, June 21, 2012] § 701.302 Who is an employee? (a) Employee (1) Any longshore worker or other person engaged in longshoring operations; (2) Any harbor worker, including a ship repairer, shipbuilder and shipbreaker; and (3) Any other individual to whom an injury may be the basis for a compensation claim under the LHWCA as amended, or any of its extensions; (b) The term does not include: (1) A master or member of a crew of any vessel; or (2) Any person engaged by a master to load or unload or repair any small vessel under eighteen tons net. (c) Nor does this term include the following individuals (whether or not the injury occurs over the navigable waters of the United States) where it is first determined that they are covered by a state workers' compensation act: (1) Individuals employed exclusively to perform office clerical, secretarial, security, or data processing work (but not longshore cargo checkers and cargo clerks); (2) Individuals employed by a club (meaning a social or fraternal organization whether profit or nonprofit), camp, recreational operation (meaning any recreational activity, including but not limited to scuba diving, commercial rafting, canoeing or boating activities operated for pleasure of owners, members of a club or organization, or renting, leasing or chartering equipment to another for the latter's pleasure), restaurant, museum or retail outlet; (3) Individuals employed by a marina, provided they are not engaged in its construction, replacement or expansion, except for routine maintenance such as cleaning, painting, trash removal, housekeeping and small repairs; (4) Employees of suppliers, vendors and transporters temporarily doing business on the premises of a covered employer, provided they are not performing work normally performed by employees of the covered employer; (5) Aquaculture workers, meaning those employed by commercial enterprises involved in the controlled cultivation and harvest of aquatic plants and animals, including the cleaning, processing or canning of fish and fish products, the cultivation and harvesting of shellfish, and the controlled growing and harvesting of other aquatic species; or (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. [76 FR 82127, Dec. 30, 2011] Coverage Under State Compensation Programs § 701.401 Coverage under state compensation programs. (a) Exclusions from the definition of “employee” under § 701.301(a)(12), and the employees of small vessel facilities otherwise covered which are exempted from coverage under § 702.171, are dependent upon coverage under a state workers' compensation program. For these purposes, a worker or dependent must first claim compensation under the appropriate state program and receive a final decision on the merits of the claim, denying coverage, before any claim may be filed under this Act. (b) The intent of the Act is that state law will apply to those categories of employees if it otherwise would. Accordingly, not withstanding any contrary state law, claims by any of the categories of workers excluded under § 701.301 or 702.171 must be made to and processed by the state and a merit decision denying coverage on jurisdictional grounds must be made before coverage or benefits under the Act may be sought. (c) The time for filing notice and claim under the Act (see subpart B of part 702) does not begin to run for purposes of claims by those workers or dependents described in § 701.301(a)(12) and § 702.171, until a final adverse decision denying coverage under a state compensation act is received. [50 FR 392, Jan. 3, 1985] Special Rules for the Recreational Vessel Exclusion From the Definition of “Employee” § 701.501 What is a recreational vessel? (a) Recreational vessel (1) Being manufactured or operated primarily for pleasure; or (2) Leased, rented, or chartered to another for the latter's pleasure. (b) In applying the definition in paragraph (a) of this section, the following rules apply: (1) A vessel being manufactured built, recreational vessel (2) A vessel being repaired, dismantled for repair, dismantled at the end of its life recreational vessel (A) “Passenger vessel” as defined by 46 U.S.C. 2101(22); (B) “Small passenger vessel” as defined by 46 U.S.C. 2101(35); (C) “Uninspected passenger vessel” as defined by 46 U.S.C. 2101(42); (D) Vessel routinely engaged in “commercial service” as defined by 46 U.S.C. 2101(5); or (E) Vessel that routinely carries “passengers for hire” as defined by 46 U.S.C. 2101(21a). (3) Notwithstanding paragraph (b)(2) of this section, a vessel will be deemed recreational if it is a public vessel, i.e., (c) All subsequent amendments to the statutes referenced in paragraph (b)(2) of this section and the regulations implementing those provisions in Title 46 of the Code of Federal Regulations will apply when determining whether a vessel is recreational. [76 FR 82128, Dec. 30, 2011] § 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 principles apply: (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, if the date of injury is on or after February 17, 2009, to scrap or dispose of the vessel at the end of the vessel's life. [76 FR 82128, Dec. 30, 2011] § 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. [76 FR 82128, Dec. 30, 2011] § 701.504 When does the recreational vessel exclusion in the American Recovery and Reinvestment Act of 2009 apply? (a) Date of injury. (1) Traumatic injury. (2) Occupational disease or infection. (3) Hearing loss. (4) Death-benefit claims. (5) Cumulative trauma. (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 individual's entitlement is governed by the 2009 amendment to section 2(3)(F). [76 FR 82128, Dec. 30, 2011] § 701.505 May an employer stop paying benefits awarded before February 17, 2009 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. [76 FR 82129, Dec. 30, 2011]