ESA Final Rule

Performance of Functions; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act [06/08/2005]

Volume 70, Number 109, Page 33589-33639

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Part II





Department of Labor





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Office of Workers' Compensation Programs



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20 CFR Parts 1 and 30



Performance of Functions; Claims for Compensation Under the Energy 
Employees Occupational Illness Compensation Program Act; Interim Rule


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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Parts 1 and 30

RIN 1215-AB51

 
Performance of Functions; Claims for Compensation Under the 
Energy Employees Occupational Illness Compensation Program Act

AGENCY: Office of Workers' Compensation Programs, Employment Standards 
Administration, Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document contains the interim final regulations governing 
the administration of the Energy Employees Occupational Illness 
Compensation Program Act of 2000, as amended (EEOICPA or Act) by the 
Department of Labor (Department or DOL). Part B of the Act provides 
uniform lump-sum payments and medical benefits to covered employees 
and, where applicable, to survivors of such employees, of the 
Department of Energy (DOE), its predecessor agencies and certain of its 
vendors, contractors and subcontractors. Part B of the Act also 
provides smaller uniform lump-sum payments and medical benefits to 
individuals found eligible by the Department of Justice (DOJ) for 
benefits under section 5 of the Radiation Exposure Compensation Act 
(RECA) and, where applicable, to their survivors. Part E of the Act 
provides variable lump-sum payments (based on a worker's permanent 
impairment and/or years of established wage-loss) and medical benefits 
for covered DOE contractor employees and, where applicable, provides 
variable lump-sum payments to survivors of such employees (based on a 
worker's death due to a covered illness and any years of established 
wage-loss). Part E of the Act also provides these same payments and 
benefits to uranium miners, millers and ore transporters covered by 
section 5 of the RECA and, where applicable, to survivors of such 
employees. The Office of Workers' Compensation Programs (OWCP) 
administers the adjudication of claims and the payment of benefits 
under EEOICPA, with the Department of Health and Human Services (HHS) 
estimating the amounts of radiation received by employees alleged to 
have sustained cancer as a result of such exposure and establishing 
guidelines to be followed by OWCP in determining whether such cancers 
are at least as likely as not related to employment. Both DOE and DOJ 
are responsible for notifying potential claimants and for submitting 
evidence necessary for OWCP's adjudication of claims under EEOICPA.

DATES: Effective Date: This interim final rule is effective on June 8, 
2005.
    Applicability date: This interim final rule applies to all claims 
filed on or after June 8, 2005. This rule also applies to any claims 
that are pending before OWCP on June 8, 2005.
    Compliance Date: Affected parties do not have to comply with the 
new information collection requirements in Sec. Sec.  30.102, 30.231, 
30.232, 30.806, 30.905 and 30.907 until DOL publishes in the Federal 
Register the control number assigned by the Office of Management and 
Budget (OMB) to these information collection requirements. Publication 
of the control number will notify the public that OMB has approved the 
new information collection requirements under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.). It should be noted that OMB 
approval of the new information collection requirements will be a 
revision to the currently approved collection in OMB Control No. 1215-
0197.
    Comments: The Department invites comments on the interim final rule 
from interested parties. Comments on the interim final rule must be 
received by August 8, 2005. Written comments on the new information 
collection requirements in this rule must be received by July 8, 2005.

ADDRESSES: You may submit comments on the interim final rule, 
identified by Regulatory Information Number (RIN) 1215-AB51, by any ONE 
of the following methods:
    Federal e-Rulemaking Portal: The Internet address to submit 
comments on the rule is http://www.regulations.gov. Follow the Web site 

instructions for submitting comments.
    E-mail: Comments on the rule may be submitted by e-mail to 
OWCP-DEEOIC-REG-1215-AB51@dol.gov. You must include ``RIN 1215-AB51'' in the 

subject line of the e-mail containing your comments.
    Mail: Submit written comments to Shelby Hallmark, Director, Office 
of Workers' Compensation Programs, Employment Standards Administration, 
U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW., 
Washington, DC 20210. Because of security measures, mail directed to 
Washington, DC is sometimes delayed. We will only consider comments 
postmarked by the U.S. Postal Service or other delivery service on or 
before the deadline for comments.
    Instructions: All comments must include the RIN 1215-AB51 for this 
rulemaking. Receipt of any comments, whether by mail, Internet, or e-
mail, will not be acknowledged. Because DOL continues to experience 
delays in receiving postal mail in the Washington, DC area, commenters 
are encouraged to submit any comments by mail early.
    Comments on the interim final rule will be available for public 
inspection during normal business hours at the address listed above for 
mailed comments. Persons who need assistance to review the comments 
will be provided with appropriate aids such as readers or print 
magnifiers. Copies of this interim final rule may be obtained in 
alternative formats (e.g., large print, audiotape or disk) upon 
request. To schedule an appointment to review the comments and/or to 
obtain the interim final rule in an alternative format, contact OWCP at 
202-693-0031 (this is not a toll-free number).
    Written comments on the new information collection requirements 
described in this interim final rule should be sent to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Attention: Desk Officer for Employment Standards Administration, 
Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of 
Workers' Compensation Programs, Employment Standards Administration, 
U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW., 
Washington, DC 20210, Telephone: 202-693-0031 (this is not a toll-free 
number).
    Individuals with hearing or speech impairments may access this 
telephone number via TTY by calling the toll-free Federal Information 
Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Energy Employees Occupational Illness Compensation Program Act 
of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 et seq., was 
originally enacted on October 30, 2000. The initial version of EEOICPA 
established a compensation program (known as Part B of the Act) to 
provide a uniform lump-sum payment of $150,000 and medical benefits as 
compensation to covered employees who had sustained designated 
illnesses due to their exposure to radiation, beryllium, or silica 
while in the performance of duty for DOE and certain of its vendors,

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contractors and subcontractors. Part B of the Act also provided for 
payment of compensation to certain survivors of these covered 
employees, and for payment of a smaller uniform lump-sum ($50,000) to 
individuals (who would also receive medical benefits), or their 
survivors, who were determined to be eligible for compensation under 
section 5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. 
2210 note, by DOJ. Primary responsibility for the administration of 
Part B of the Act was assigned to DOL by Executive Order 13179 
(``Providing Compensation to America's Nuclear Weapons Workers'') of 
December 7, 2000 (65 FR 77487). On May 25, 2001, the Department issued 
interim final regulations (66 FR 28948) governing its administration of 
Part B of the Act, commenced administration of Part B of the Act on 
July 31, 2001, and issued final regulations on December 26, 2002 (67 FR 
78874) that went into effect on February 24, 2003.
    The initial version of EEOICPA also created a second program (known 
as Part D of the Act) that required DOE to establish a system by which 
DOE contractor employees (and their eligible survivors) could seek 
assistance from DOE in obtaining state workers' compensation benefits 
if a Physicians Panel determined that the employee in question had 
sustained a covered illness as a result of work-related exposure to a 
toxic substance at a DOE facility. A positive panel finding that was 
accepted by DOE required DOE, to the extent permitted by law, to order 
its contractor not to contest the claim for state workers' compensation 
benefits. However, Congress amended EEOICPA in Subtitle E of Title XXXI 
of the Ronald W. Reagan National Defense Authorization Act for Fiscal 
Year 2005, Public Law 108-375, 118 Stat. 1811, 2178 (October 28, 2004), 
by abolishing Part D of the Act and creating a new Part E (codified at 
42 U.S.C. 7385s through 7385s-15) that it assigned to DOL for 
administration. Part E establishes a new system of variable federal 
payments for DOE contractor employees, uranium workers covered by 
section 5 of RECA, and eligible survivors of such employees. Congress 
also amended several of the other provisions contained in EEOICPA that 
applied to Part B and specified that DOL was to prescribe regulations 
implementing the amendments to EEOICPA and commence administration of 
Part E within 210 days of its enactment.

II. Administrative Procedure Act Issues

    Section 7385s-10(e) of EEOICPA clearly directs the Secretary of 
Labor to ``prescribe regulations necessary for the administration of 
[Part E] * * * not later than 210 days after the date'' the Ronald W. 
Reagan National Defense Authorization Act for Fiscal Year 2005 was 
enacted, and further authorizes the Secretary to ``prescribe interim 
final regulations necessary to meet'' this 210-day deadline. The 
Department believes that this grant of authority to the Secretary to 
prescribe interim final regulations by May 26, 2005 contemplates 
displacement of Administrative Procedure Act (APA) notice and comment 
procedures and allows the publication of interim final regulations as 
an initial matter.
    Therefore, the Department believes that the ``good cause'' 
exception to APA notice and comment rulemaking applies to this rule. 
Under that exception, pre-adoption procedures are not required ``when 
the agency for good cause finds (and incorporates the finding and a 
brief statement of reasons therefor in the rules issued) that notice 
and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.'' 5 U.S.C. 553(b)(B). DOL cannot fully 
adjudicate claims under Part E of EEOICPA until these regulations are 
promulgated. The steps necessary for the usual notice and comment under 
the APA could not be completed in time for the Department of Labor to 
commence administration of Part E by the deadline of May 26, 2005: 
approval of the notice of proposed rulemaking by the Secretary and OMB; 
publication in the Federal Register; receipt of, consideration of, and 
response to comments submitted by interested parties; modification of 
the proposed rules, if appropriate; final approval by the Secretary; 
clearance by OMB; and publication in the Federal Register. Accordingly, 
the Department believes that under 5 U.S.C. 553(b)(B), good cause 
exists for waiver of notice and comment rulemaking procedures because 
issuance of proposed rules would be impracticable and contrary to the 
public interest.
    While notice and comment rulemaking is being waived, the Department 
is interested in comments and advice regarding changes that should be 
made to these interim regulations. The Department will carefully 
consider all comments on the regulations contained in this interim 
final rule received on or before August 8, 2005, and will publish the 
final regulations with any necessary changes.
    Under the APA, substantive rules generally cannot take effect until 
30 days after the rule is published in the Federal Register. However, 
section 553(d)(3) of the APA states that agencies may waive this 30-day 
requirement for ``good cause'' and establish an earlier effective date. 
As explained above, the Department believes that there is ``good 
cause'' for waiver of the APA requirement for notice and comment 
rulemaking because it would be both impractical and contrary to the 
public interest for the Department to fulfill that requirement. 
Similarly, the Department believes that the ``good cause'' exception to 
the 30-day effective date requirement for substantive rules in the APA 
applies to this rule, because observing this requirement would be both 
impractical and contrary to the public interest. As noted above, DOL 
will not be able to fully adjudicate claims under Part E of EEOICPA 
until the regulations in this rule are in effect. Since Congress has 
directed DOL to commence administration of Part E no later than May 26, 
2005 in section 7385s-10(f)(1) of EEOICPA, the Department believes that 
``good cause'' exists for waiver of the usual 30-day effective date 
requirement for substantive rules and for this rule to become effective 
immediately upon the date of its publication in the Federal Register.

III. Overview of Regulatory Changes

    Congress, in enacting Part B of EEOICPA, created a program to 
ensure an efficient, uniform, and adequate compensation system for 
certain employees of DOE, its vendors, contractors, and subcontractors, 
who contracted beryllium-, silica-, and radiation-related health 
conditions as a result of their employment in the development of 
nuclear weapons. When it amended EEOICPA to create Part E, Congress 
established a second program in an effort to also ensure an equally 
efficient, uniform, and adequate compensation system for DOE contractor 
employees and RECA section 5 workers who contracted illnesses due to 
their exposures to toxic substances as a result of employment at a DOE 
facility or a RECA section 5 facility, as appropriate. These 
regulations describe the processes that OWCP will use so that 
employees, and, when applicable, their survivors, will receive the 
benefits provided by Part B and Part E of EEOICPA in the efficient and 
uniform manner intended by Congress. The following discussion describes 
the many significant changes to the regulations that currently appear 
as 20 CFR parts 1 and 30, but does not include any discussion of 
corrections of typographical errors, or minor wording changes and 
clarifications that do not affect the substance of the existing 
regulations.

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20 CFR Part 1

    This part is the same as current part 1 (Sec. Sec.  1.1 through 
1.6), with the exception of the authority citation, and is reprinted in 
full for the ease of the reader. The authority citation has been 
updated to reflect that Congress assigned responsibility for 
administration of the new Part E of EEOICPA established by Public Law 
108-375 to DOL.

20 CFR Part 30

Subpart A--General Provisions

    This subpart is substantially the same as the current subpart A 
(Sec. Sec.  30.0 through 30.17). The amended subpart adds material 
describing the expanded responsibilities of DOL under EEOICPA, as well 
as definitions necessary for administration of Part E of the Act.
Introduction
    Section 30.0 now describes, in general terms, the types of 
compensation available under both Parts B and E of EEOICPA, the persons 
to whom this compensation may be paid, and the differing eligibility 
requirements that apply to claimants under Part B and Part E. Section 
30.2 has been updated to briefly describe how the tasks involved in 
administering Part B and Part E of EEOICPA have been assigned, both 
within DOL and among the Secretaries of Labor, Health and Human 
Services, and Energy, and the Attorney General, following the 
amendments enacted on October 28, 2004, while Sec.  30.3 summarizes how 
the existing and new regulations in this part are organized by subject 
area.
Definitions
    Amended Sec.  30.5 compiles the definitions for the principal terms 
used in this part and is substantially unchanged from the existing 
section. It includes terms specifically defined in EEOICPA that, for 
the convenience of the user of this part, are repeated in this section. 
The Department seeks comments on all of the definitions provided in 
Sec.  30.5, including, in particular, those addressed in the following 
paragraphs.
    Section 3168 of Public Law 108-375 amended the prior statutory 
definition of atomic weapons employee at 42 U.S.C. 7384l(3) to add 
employees who did not work during the period their employer had a 
contract with DOE and were instead only employed during a period of 
residual radioactive contamination as determined by the National 
Institute for Occupational Safety and Health (NIOSH). Thus, the 
regulatory definition of this term in Sec.  30.5(c) has been modified 
to reflect this amendment.
    The Sec.  30.5(p) definition of covered Part E employee is intended 
to serve as a shorthand term and refers to both DOE contractor 
employees (defined in section 7385s(1) of the Act) and RECA section 5 
uranium workers (defined in section 7385s-5(b)(3) of the Act) who have 
been determined by OWCP to have contracted covered illnesses through an 
exposure to toxic substances at a DOE facility or a RECA section 5 
facility, as appropriate. In order to make it consistent with (and also 
distinguish it from) Sec.  30.5(p), the definition of covered employee 
in existing Sec.  30.5(p) has been amended to read as covered Part B 
employee and has been moved to amended Sec.  30.5(q).
    In order to allow readers of this rule to readily distinguish 
between the illnesses that are compensable under Parts B and E, this 
section also includes regulatory definitions of covered illness in 
amended Sec.  30.5(r) and occupational illness in amended Sec.  
30.5(bb). While neither of these terms is altered in any fashion in 
this rule, they are both defined in this section to highlight the need 
to differentiate between an occupational illness that is compensable 
under Part B of the Act, and a covered illness that is compensable 
under Part E.
    The Department defines Department of Energy facility in Sec.  
30.5(v) by repeating the definition found in section 7384l(12) of the 
Act. As noted in amended Sec.  30.5(x)(2), DOL adopts the list of 
facilities established by the Department of Energy that is in effect on 
the date of publication of this Interim Final Rule (69 FR 51825). DOL 
will periodically update this list as it deems appropriate in its sole 
discretion by publishing a revised list of covered facilities in the 
Federal Register. Determinations of the Director that a facility is a 
Department of Energy facility is solely for the purpose of 
administering the EEOICPA.
    As noted above, Public Law 108-375 abolished Part D of the Act and, 
at the same time, established a new Part E that maintained the former 
Part D's focus on covered illnesses of employees who were exposed to a 
``toxic substance'' at a DOE facility. Because section 7385s-4(c) of 
EEOICPA requires DOL to use the causation standard from DOE's former 
Part D regulations when it determines if an employee has sustained a 
covered illness due to exposure to a toxic substance at a DOE facility, 
Sec.  30.5(ii) sets out the same definition for toxic substance that 
originally appeared in DOE's regulations for former Part D at 10 CFR 
852.2 for use under Part E. As DOE explicitly indicated when it 
published its final regulations on August 14, 2002 (67 FR 52843), noise 
is not considered to be a ``toxic substance'' for purposes of the 
compensation program.
Information in Program Records
    Existing Sec.  30.11 describes how all records relating to claims 
for benefits filed under the Act are covered by the Privacy Act and are 
described in a system of records entitled DOL/ESA-49. This system of 
records is maintained by and under the control of OWCP. All records 
relating to a claim obtained by OWCP from the claimant or any other 
source are maintained by OWCP in a case record. A claimant may obtain, 
without charge, one complete copy of the records in the case record. 
This will allow a claimant to obtain a copy of any medical, employment, 
exposure or other evidence that might be of use to a physician of the 
claimant's choosing in providing medical evidence to OWCP necessary to 
establish a claimant's entitlement to benefits available under the Act. 
Should OWCP obtain further records after furnishing a free copy of a 
case record to a claimant, the claimant can obtain one copy of those 
further records, without charge, by requesting them from OWCP.

Subpart B--Filing Claims; Evidence and Burden of Proof; Special 
Procedures for Certain Cancer Claims

    This subpart is substantially similar to the current subpart B, 
which describes the early steps in OWCP's claims adjudication process 
and includes a general description of the evidence an employee or 
survivor must submit to meet his or her burden of proof under Parts B 
and E of the Act. As explained in Sec.  30.111, the claimant bears the 
burden of proving by a preponderance of the evidence the existence of 
each and every criterion necessary to establish eligibility under any 
claim category in Part B or Part E. It also explains the special 
procedures used in the adjudication of claims for radiogenic cancer 
under Parts B and E that do not involve members of the Special Exposure 
Cohort.
Filing Claims for Benefits Under Part B and Part E of EEOICPA
    Current Sec. Sec.  30.100, 30.101 and 30.102 (renumbered as Sec.  
30.103 in this rule) have been revised to accommodate the addition of 
Part E claims to the existing claims adjudication process. Sections 
30.100 and 30.101 now include new language that a claim for benefits 
under Part E, including a claim originally filed with DOE as a claim 
for assistance under former Part D (which was

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repealed on October 28, 2004), will not be considered to be ``filed'' 
earlier than October 30, 2000. Also, the language in these same two 
sections that employees or survivors can choose to file a claim for 
benefits for only certain potentially compensable conditions and forgo 
filing for a condition for which a payment has been received that would 
necessitate an offset of EEOICPA benefits is new, although it describes 
the current policy of OWCP. New Sec.  30.102 describes how covered Part 
E employees who have previously been awarded impairment or wage-loss 
benefits under Part E of the Act can file claims for additional periods 
of wage-loss and/or an increased percentage of permanent impairment.
Verification of Alleged Employment
    Current Sec.  30.106, which describes DOE's employment verification 
responsibilities in the context of claims of survivors, is consolidated 
into Sec.  30.105 in this rule, which now describes these 
responsibilities in the context of both survivors' and employees' 
claims. New Sec.  30.106 sets out the current practice of OWCP and DOE 
of arranging for other entities to provide OWCP with information needed 
to verify alleged employment, when necessary.
Evidence and Burden of Proof
    Existing Sec.  30.111 describes how a claimant bears the burden of 
proving by a preponderance of the evidence the existence of each and 
every criterion necessary to establish eligibility under any 
compensable claim category. OWCP collects a variety of evidence that 
will assist a claimant in meeting his or her burden of proof. In 
addition to employment verification information obtained by OWCP, 
discussed above, in the course of developing a case OWCP obtains from 
DOE and its contractors and subcontractors and other sources a variety 
of medical, environmental, exposure and other information relevant to 
individual employees or the facilities in general.
    When a claims examiner reviews a submission by a claimant and 
determines that the medical evidence is insufficient to meet the 
claimant's burden of proof, the claimant can be referred to one or more 
physicians with appropriate expertise for an opinion on any issue or 
issues relevant to adjudication of the claim. When OWCP makes these 
referrals, the physician will be asked relevant questions and provided 
with a Statement of Accepted Facts prepared by OWCP and all relevant 
records from the case file. Alternatively, and in the case of a claim 
by a survivor, a Statement of Accepted Facts prepared by OWCP and all 
relevant records can be forwarded to one or more physicians for their 
review without the necessity of an examination. Thus, in a case where 
the claimant is unable to provide sufficient medical evidence from a 
physician with the necessary expertise, OWCP can, at its expense, 
obtain the opinion of a physician with the appropriate expertise.
Special Procedures for Certain Radiogenic Cancer Claims
    Section 30.115, which explains the special procedures used in the 
early adjudication of claims for radiogenic cancers that do not seek 
Part B benefits under the Special Exposure Cohort provisions, has been 
modified slightly to include new language stating that except for Part 
B claims previously accepted under section 7384u of the Act, all claims 
seeking benefits under Part E for radiogenic cancers will be forwarded 
to HHS for dose reconstruction.

Subpart C--Eligibility Criteria

    This subpart is substantially the same as current subpart C 
(Sec. Sec.  30.200 through 30.226), with a number of small changes in 
language to reflect the new responsibilities of DOL under EEOICPA that 
have resulted from the enactment of Part E. In addition to these small 
changes (and other changes to reflect existing administrative 
practices), subpart C has been amended to include the substantive 
changes discussed below.
Eligibility Criteria for Claims Relating to Radiogenic Cancer Under 
Parts B and E
    Current Sec.  30.210 sets forth the criteria for eligibility for 
claims relating to radiogenic cancer under Part B of EEOICPA; these 
criteria are quite specific and reflect Part B's focus on a narrowly 
defined list of occupational illnesses. The criteria for claims 
relating to radiogenic cancer under Part E of EEOICPA differ (due to 
differences between Parts B and E) from the more specific eligibility 
criteria for radiogenic cancer claims under Part B and describe a 
particular subset of the broad range of covered illnesses that may be 
compensated under Part E. However, both Part B and Part E provide 
coverage for radiogenic cancer. Therefore, current Sec.  30.210 has 
been designated as subsection (a) of amended Sec.  30.210, and new 
subsection (b) sets forth the statutory eligibility criteria for claims 
relating to radiogenic cancer under new Part E. Under Part E, a claim 
for radiogenic cancer will be compensable if it is ``at least as likely 
as not'' that the cancer is due to an employee's work-related exposure 
to radiation; thus, using the ``probability of causation'' (PoC) 
guidelines established by HHS, this type of claim will be compensable 
if the probability of causation is 50% or higher.
    Current Sec.  30.213, which describes how OWCP makes a finding 
whether a radiogenic cancer claimed under Part B was sustained in the 
performance of duty under section 7384n of the Act, has been modified 
slightly to more fully describe OWCP's required use of HHS's regulatory 
PoC guidelines in its adjudication of those questions. OWCP has also 
decided to utilize the same HHS PoC guidelines to determine whether 
exposure to radiation at a DOE facility or a RECA section 5 facility 
was at least as likely as not a significant factor in causing or 
contributing to a cancer for the purposes of Part E.
    The radioepidemiological tables upon which the PoC guidelines are 
based were originally developed in response to a 1983 congressional 
directive in the Orphan Drug Act (Pub. L. 97-414, 42 U.S.C. 241 note), 
which required HHS to ``devise and publish radioepidemiological tables 
that estimate the likelihood that persons who have or have had any of 
the radiation-developed cancers and who have received specific doses 
prior to the onset of such disease developed cancer as a result of such 
doses.'' Congress required determinations whether radiogenic cancers 
were to be considered sustained in the performance of duty for the 
purposes of Part B to be based upon those tables in section 7384n(c) of 
EEOICPA.
    OWCP has decided to use those same HHS regulatory PoC guidelines in 
its adjudication of claims for radiogenic cancer under Part E for 
several reasons. First, it recognizes that while it is not practical to 
legislate specific mechanisms to determine causation for the numerous 
medical conditions that exposure to tens of thousands of toxic 
substances at covered facilities could potentially cause, Congress has 
acknowledged that use of HHS's PoC guidelines is an appropriate 
mechanism to determine whether a cancer was at least as likely as not 
caused by work-related radiation exposure. In view of the lack of a 
scientific basis for attributing any particular case of cancer to any 
cause, the epidemiological approach taken by Congress in Part B, and 
now to be utilized by OWCP for Part E, is more likely to result in a 
scientifically valid and consistent determination process than merely 
attempting to reach a determination

[[Page 33594]]

based on opinions likely to contain a substantial speculative 
component. Thus, the requirement in amended Sec.  30.213 that OWCP use 
HHS's PoC guidelines to adjudicate claims for radiogenic cancer under 
Part E is both appropriate and rational.
    This conclusion finds further support in the Report of the NCI-CDC 
Working Group to Revise the 1985 NIH Radioepidemiological Tables 
(September 2003), which found that the PoC model was a viable method to 
adjudicate claims for radiation-related instances of cancer that 
appropriately summarized ``the likelihood that prior radiation exposure 
might be causally related to cancer occurrence.'' Use of the PoC 
guidelines for claims under both Part B and Part E will allow OWCP to 
adjudicate the entitlement of radiogenic cancers that are potentially 
compensable under Part B and Part E in a uniform manner. Any process 
for determining coverage of claims for radiogenic cancers that would 
yield inconsistent results as to whether that cancer is covered under 
Parts B and E is unlikely to be understood or accepted by claimants and 
other stakeholders.
    The determination by OWCP to utilize the HHS PoC guidelines will 
only apply to a determination whether a cancer was contracted solely 
through exposure to radiation at a DOE facility or a RECA section 5 
facility, as appropriate. The HHS PoC guidelines will not be used to 
determine if a cancer claimed under Part E was contracted through 
exposure to radiation combined with exposure to one or more other toxic 
substances because the risk models that were used by HHS to develop the 
PoC guidelines for cancer at 42 CFR part 81 only address radiation 
exposure. When it issued those regulations on May 2, 2002 (67 FR 22297-
22298), HHS expressly noted that ``[n]one of the risk models explicitly 
accounts for exposure to other occupational, environmental, or dietary 
carcinogens. Models accounting for these factors have not been 
developed and may not be possible to develop based on existing 
research.''
    Thus, when a claim for cancer under Part E cannot be accepted based 
on exposure to radiation alone, because the PoC was found to be less 
than 50%, the claimant will be given an opportunity to establish that 
the cancer was caused by a combination of exposure to radiation and 
exposure to one or more other toxic substances. OWCP will adjudicate 
those claims for cancer allegedly due to exposures to radiation 
combined with exposure to one or more other toxic substances using the 
eligibility criteria for other covered illnesses in new Sec. Sec.  
30.230 through 30.232 discussed below.
Eligibility Criteria for Other Claims Under Part E
    New Sec.  30.230 sets forth the criteria established by section 
7385s-4 of EEOICPA that OWCP uses to determine if an employee 
contracted a covered illness. In addition, this new section also states 
that these criteria are satisfied by showing that the covered illness 
at issue was accepted in a prior claim under Part B of EEOICPA or 
section 5 of RECA, or that the Secretary of Energy under the former 
Part D accepted a Physicians Panel positive determination regarding the 
existence of the covered illness prior to the effective date of this 
rule. Section 30.230(d)(2) is included for the purpose of informing 
claimants of the kinds of information that OWCP will consider in 
determining whether it is ``at least as likely as not'' that exposure 
to a toxic substance at a Department of Energy facility or at a RECA 
section 5 facility, as appropriate, was a significant factor in 
aggravating, contributing to, or causing the illness. OWCP will make 
that determination after carefully weighing all of the evidence 
supplied by the claimant or obtained by OWCP from other sources.
    Two of the elements that a claimant must establish before OWCP can 
determine that an employee contracted a covered illness are that the 
employee was employed at either a DOE facility or a RECA section 5 
facility, and that he or she was exposed to a toxic substance at work. 
New Sec.  30.231 describes how to prove employment at either a DOE 
facility or a RECA section 5 facility, as well as how to prove that the 
employee was exposed to a toxic substance while so employed.
    New Sec.  30.232 sets forth how a claimant can prove that the 
employee was diagnosed with a covered illness, or has sustained an 
injury, illness, impairment or disease as a consequence of a covered 
illness. This section describes the type of medical information, 
releases, and work histories that must be submitted to enable OWCP to 
make this finding. The section also makes it clear that the claimant 
may present other evidence deemed necessary by OWCP to establish the 
diagnosis or prove the existence of an injury, illness, impairment or 
disease.

Subpart D--Adjudicatory Process

    This subpart is substantially the same as current subpart D 
(Sec. Sec.  30.300 through 30.320), with a number of small changes in 
language to emphasize that this subpart only applies when OWCP 
adjudicates claims for entitlement under the Act; certain other 
decisions are made using other administrative processes (such as those 
used to resolve medical billing disputes). In addition to these small 
changes, subpart D has been amended to include new Sec.  30.301, which 
implements new section 7384w in Part B of the Act, providing that an 
OWCP district office claims examiner and/or a Final Adjudication Branch 
(FAB) reviewer may, in the exercise of their discretion, issue 
subpoenas for persons and documents when adjudicating a Part B claim. A 
subpoena will be issued at the request of a claimant only by a FAB 
reviewer in connection with FAB's adjudication process for Part B 
claims. Section 30.301 also sets forth the methods for requesting 
issuance of the subpoenas.
    Section 30.302 is also new and contains information about the fees 
and costs payable to lay and expert witnesses who are subpoenaed by 
OWCP. The section explains who is responsible for making the payment to 
the witness, and the factors that will govern this determination. New 
Sec.  30.303 is intended to clarify the duties of both DOE and/or DOE 
contractors to provide information or documents in response to a 
request from OWCP under Part E of EEOICPA.
Hearings and Final Decisions on Claims
    Section 30.317 has been rewritten to better describe the FAB's 
discretion to return a claim to the district office for the issuance of 
a new recommended decision before issuing a final decision. This new 
language is being added so the regulations reflect OWCP's current 
administrative practice and is not intended to change the substance of 
the current regulation. Similar minor edits of a non-substantive nature 
were made to Sec.  30.318(a) and (b). Section 30.318(c) is new and is 
being added to more fully explain OWCP's existing policy regarding 
objections to the PoC methodology established by HHS regulations, and 
to OWCP's application of that methodology. Section 30.319(c), regarding 
requests for reconsideration of FAB decisions, has been revised to 
describe current procedures for reviewing these requests, granting or 
denying them, and determining the effective date of a resulting new 
final decision. This revision reflects current OWCP practice with no 
substantive changes intended.

Subpart E--Medical and Related Benefits

    This subpart is substantially the same as current subpart E 
(Sec. Sec.  30.400 through 30.422), since only minor modifications

[[Page 33595]]

were necessary in order to accommodate the addition of approved claims 
under Part E of EEOICPA to OWCP's existing processes for providing 
authorized medical benefits and treatment. No changes were made to the 
sections that describe the processes OWCP uses to refer employees for 
directed medical examinations, which will also occur in the 
adjudication of claims under Part E.

Subpart F--Survivors; Payments and Offsets; Overpayments

    The overall organization of this subpart is substantially the same 
as the current subpart F (Sec. Sec.  30.500 through 30.513), other than 
the slight modifications that were necessary throughout the subpart to 
accommodate the addition of approved claims under Part E of EEOICPA to 
OWCP's existing claims payment processes. The amended subpart also 
contains regulatory language implementing OWCP's newly granted 
statutory authority to waive the required recovery of such benefits.
Survivors
    The amended versions of Sec. Sec.  30.500 through 30.502 now 
identify those persons who may be potentially eligible to receive 
monetary compensation under Part B and/or Part E, based on their 
relationship to a deceased covered Part B employee or a deceased 
covered Part E employee. These sections also highlight the differences 
in the order of precedence that OWCP must use to determine which 
eligible surviving beneficiary or beneficiaries to pay under Parts B 
and E of EEOICPA.
    Section 30.500(a)(2) contains the statutory definition of a 
``child'' and also includes the more restrictive statutory criteria 
that an individual must satisfy to be a ``covered'' child under Part E. 
These criteria for Part E of the Act include the same statutory 
definition of a ``child'' used in Part B of the Act, as well as 
specific age, educational or self-sufficiency criteria that must be met 
as of the date of the deceased Part E employee's death. As amended by 
this rule, Sec.  30.501 still describes the order of precedence among 
survivors under EEOICPA; the order of precedence that OWCP must use 
under Part B now appears without substantive change as Sec.  30.501(a), 
while new Sec.  30.501(b) describes the order of precedence for Part E 
survivor claims. It should be noted that survivors who are either 
grandparents, grandchildren or parents of a deceased Part E employee 
are not considered eligible surviving beneficiaries of that individual 
under Part E. Also, the comparable alternative order of precedence 
provisions in Sec.  30.501(a)(6) for Part B and Sec.  30.501(b)(3) for 
Part E, which describe those statutorily mandated instances when a 
surviving spouse must share a lump-sum payment with minor children of 
the deceased employee, are not triggered under the exact same 
circumstances--Sec.  30.501(a)(6) requires that the child of the 
deceased Part B employee be a minor at the time benefits are paid by 
OWCP, while Sec.  30.501(b)(3) only requires that the child of the 
deceased Part E employee satisfy the additional criteria for a 
``covered'' child (as described above) as of the time of the death of 
the employee, not also at the time of payment of benefits by OWCP.
Payments and Offsets
    Amended Sec. Sec.  30.505 through 30.507 and newly added Sec.  
30.509 set out the rules for the payment of monetary compensation to 
claimants under EEOICPA for both Part B and Part E. Although the 
process for paying claims under both parts of the Act is similar, there 
are some differences that are reflected in these amended sections. New 
Sec.  30.505(d) describes the maximum aggregate compensation that is 
payable under Part E (exclusive of medical benefits), as set forth in 
42 U.S.C. 7385s-12. The statute limits the aggregate compensation 
(other than medical benefits) that OWCP may pay under Part E to all 
claimants for each individual whose illness or death serves as a basis 
for compensation or benefits under Part E to a total of $250,000. This 
is the only reading of the statutory language that is consistent with 
the statutory requirement that the computation of both impairment 
benefits and wage-loss benefits under Sec.  7385s-2 be based upon 
impairment or wage-loss that is ``the result of any covered illness.'' 
This reading is also consistent with congressional intent, as reflected 
in the Conference Report for Public Law 108-375, which states that the 
``maximum aggregate benefit available under [Part] E of EEOICPA is 
$250,000.'' See H.R. Conf. Rep. No. 108-767, at 894 (2004).
    Newly added Sec.  30.509 describes the option that certain 
claimants under Part E have to choose between receiving the benefits 
payable to them as a survivor, and the benefits that would have been 
payable to the deceased covered Part E employee if he or she were still 
living at the time of payment. This option is contained in 42 U.S.C. 
7385s-1(2)(B), and new Sec.  30.509 notes that claimants will only have 
the opportunity to make this choice in certain limited circumstances. 
First, a survivor of a covered Part E employee may choose to exercise 
this option only if the employee died after filing his or her Part E 
claim (or a claim under former Part D), but prior to receiving any 
compensation under the Act. In addition, the covered Part E employee's 
death must have been solely caused by a non-covered illness or 
illnesses for this option to be available to the survivor. If both of 
these requirements are met, it is likely that a survivor would choose 
to receive the benefits that the deceased covered Part E employee would 
have received since, in that situation, no survivor benefits would be 
payable for the death. Section 30.509(c) points out, however, that 
since impairment determinations can only be made in conformance with 
subpart J of these regulations, and therefore can only be made if the 
case record contains rationalized medical evidence that is sufficiently 
detailed to meet the pertinent requirements of the American Medical 
Association's Guides to the Evaluation of Permanent Impairment (AMA's 
Guides), OWCP will not make an impairment determination for a deceased 
covered Part E employee if the medical evidence in the case record does 
not satisfy those requirements.
Overpayments
    Amended Sec. Sec.  30.510 through 30.512 are substantially the same 
as the current versions of these sections and continue to describe how 
OWCP identifies overpayments, notifies individuals that they were 
overpaid, and together with new Sec. Sec.  30.513 through 30.520, 
considers requests by individuals to waive recovery of such 
overpayments under the new statutory authority granted DOL by Congress 
in section 7385j-2 of EEOICPA.
    New Sec.  30.513 sets out the initial requirement in 42 U.S.C. 
7385j-2(b) that only those individuals who were ``without fault'' in 
the creation of an overpayment of EEOICPA benefits may request waiver 
of recovery of the overpayment. If the individual satisfies this 
threshold requirement, new Sec.  30.514 describes the two statutory 
criteria, also found in section 7385j-2(b), that OWCP will use to 
evaluate the individual's request for waiver. Waiver of recovery may be 
granted by OWCP if either: (1) Recovery of the overpayment would defeat 
the purpose of the EEOICPA; or (2) recovery of the overpayment would be 
against equity and good conscience. These two criteria are discussed in 
greater detail in new Sec. Sec.  30.516 and 30.517, respectively, which 
set out the general parameters that OWCP will observe when it decides 
if a request for waiver satisfies either of the two statutory criteria. 
New Sec.  30.515 also notes that OWCP will not automatically find the 
individual to be

[[Page 33596]]

``without fault'' in the creation of an overpayment simply because OWCP 
erred in making the payment. Any such error on OWCP's part cannot 
vitiate the statutory criteria for eligibility to any benefits payable 
out of the fund established by Congress in section 7384e(d) of the Act.
    To enable OWCP to consider requests for waiver of recovery of 
overpayments, and to set a reasonable schedule for repayment of the 
overpayment if waiver is denied, new Sec.  30.518 notes that OWCP may 
require the recipient of an overpayment of compensation to submit 
pertinent information relating to his or her income, expenses and 
assets. This same section also notes that a failure to submit this 
requested information within 30 days of the request from OWCP will 
result in the denial of any request for waiver of recovery, and that no 
further requests for waiver will be considered until the requested 
information is provided to OWCP. New Sec.  30.519 notes that after 
considering any such evidence or argument submitted in support of a 
waiver request, OWCP will issue a final decision on the matter of the 
overpayment, and that the adjudicatory processes described in subpart D 
will not be used to issue these particular decisions. Since a decision 
whether to waive recovery of an overpayment is not a decision on an 
individual's underlying entitlement under the Act and is similar to 
certain other decisions that OWCP issues (like decisions on medical 
billing disputes) without using the adjudicatory processes described in 
subpart D, any such decision will be issued by the OWCP district office 
with jurisdiction over the claim.
    Existing Sec.  30.513 has been modified and now appears as new 
Sec.  30.520 in this rule. As the former Sec.  30.513 did, this new 
section notes the statutory authority, independent from EEOICPA, that 
OWCP has to recover overpayments of EEOICPA benefits. It also notes 
OWCP's new authority, derived from 42 U.S.C. 7385j-2(a), to recover an 
overpayment of EEOICPA benefits by decreasing any later benefit 
payments to which the overpaid individual is entitled.

Subpart G--Special Provisions

    This subpart is substantially the same as current subpart G 
(Sec. Sec.  30.600 through 30.620), other than the slight modifications 
that were necessary in order to accommodate the addition of claims 
under Part E of the Act to the existing regulations governing third 
party liability, and some minor clarifications of the regulations 
describing the effect of tort suits against beryllium vendors and 
atomic weapons employers on claims under Part B of the Act. This 
subpart also contains a fuller regulatory description of the 
restrictions on representative fees in sections 7385g and 7385s-9 of 
EEOICPA, as well as several new sections that describe how OWCP will 
``coordinate'' its payment of Part E benefits with benefits received 
under a state workers' compensation system for the same covered illness 
or illnesses.
Representation
    While Sec. Sec.  30.600, 30.601 and 30.602 remain substantially the 
same as in the current rule, Sec.  30.603 has been amended to better 
describe the fees that may be collected by a representative who assists 
with an EEOICPA claim. This section also identifies DOJ as the 
executive branch department with the authority for prosecuting 
violations of the fee-for-service limitations in the Act. Lastly, 
amended Sec.  30.603 clarifies the statement in existing Sec.  30.603 
that the fee limitations do not apply to representative services 
rendered in connection with a petition filed with a U.S. District Court 
or any subsequent appeal.
Coordination of Part E Benefits With State Workers' Compensation 
Benefits
    Section 7385s-11 of EEOICPA requires that Part E benefits be 
coordinated with state workers' compensation benefits. This reduces the 
possibility of claimants receiving duplicate payments for the same 
covered illness. While this provision appears to create tension between 
it and section 7385 of EEOICPA (now applicable to both Parts B and E), 
which excludes workers' compensation benefits from the general offset 
required by that section, OWCP is implementing the provisions of 
section 7385s-11 in order to effectuate all of the provisions of the 
recent amendments. Section 7385s-11 provides specific authority to 
coordinate Part E benefits and amounts received under state workers' 
compensation laws. OWCP views the more specific authority in that 
section as taking precedence over the general exclusion in section 
7385, because failing to do so would, in effect, negate the enactment 
of section 7385s-11. New Sec. Sec.  30.625, 30.626 and 30.627 thus 
briefly describe how OWCP may coordinate benefits payable under Part E 
with certain payments the claimant receives under a state workers' 
compensation program for the same covered illness. Section 30.625 
generally discusses what ``coordination of benefits'' means for 
purposes of administering Part E. Section 30.626 discusses how OWCP 
will perform this required coordination of benefits, including how it 
will calculate the amount of any coordination. Section 30.627 indicates 
that OWCP has sole authority to waive the coordination of benefits, in 
accordance with the explicit terms of section 7385s-11(b) of the Act, 
and discusses circumstances that might warrant such a waiver.

Subpart H--Information for Medical Providers

    This subpart is substantially the same as current subpart H 
(Sec. Sec.  30.700 through 30.726), modified slightly throughout to 
reflect current forms and billing terminology, and also to accommodate 
minor changes to OWCP's medical bill processing system. It also 
contains one change of a substantive nature in Sec.  30.722, which is 
one of the sections that describes the process OWCP uses to exclude 
medical providers from participation in the EEOICPA program. The 
substance of current Sec.  30.722 now appears as subsection (b) of 
amended Sec.  30.722, and a new subsection (a) has been added to permit 
medical providers to request subpoenas upon a showing of good cause in 
exclusion proceedings that involve medical services provided under Part 
B of EEOICPA. Subpoenas are now available under those particular 
circumstances, pursuant to the authority granted by new section 7384w 
in Part B of EEOICPA.

Subpart I--Wage-Loss Determinations Under Part E

    Subpart I is new and sets forth the procedures that OWCP uses to 
determine whether a covered Part E employee sustained wage-loss as a 
result of contracting a covered illness, and the amount of any such 
wage-loss that is compensable under Part E of EEOICPA to covered Part E 
employees, and survivors of deceased covered Part E employees.
General Provisions
    Section 30.800 indicates that pursuant to section 7385s-2(a)(2) of 
EEOICPA, years of wage-loss occurring up to and including the calendar 
year that a covered Part E employee reaches ``normal retirement age'' 
may be compensable under Part E. This section further notes that in 
making these determinations, OWCP is required to make findings 
regarding the ``average annual wage'' of the covered Part E employee 
prior to contracting a covered illness, the percentage of such average 
annual wage the covered Part E employee earned during the alleged 
subsequent calendar years of wage-loss, and whether the wage-loss 
during the

[[Page 33597]]

years in question was due to the covered illness.
    Certain terms used in determining compensation based on wage-loss 
are defined in the statute or these regulations, and are compiled in 
Sec.  30.801. Average annual wage refers to the baseline wage against 
which OWCP will measure a subsequent calendar-year wage earned by a 
covered Part E employee, and is defined in Sec.  30.801(a) the same way 
that the term is defined in section 7385s-2(a)(2)(A)(ii) of EEOICPA. 
Given the specific language used in that section of the Act, OWCP will 
determine that the average annual wage of a covered Part E employee is 
$0 if he or she was retired during the 12 quarters immediately 
preceding the quarter during which he or she first experienced wage-
loss due to exposure to a toxic substance at a DOE facility or RECA 
section 5 facility, as appropriate. Section 30.801(b) defines normal 
retirement age as the age at which an employee may receive an unreduced 
Social Security retirement benefit, which is the same way this 
statutory term is described in section 7385s-2(a)(2)(A)(iii). That age 
varies (by date of birth) and is set by section 216(l) of the Social 
Security Act, 42 U.S.C. 416(l). Because OWCP will make its 
determinations under this subpart using quarterly periods, many of the 
regulatory terms used in subpart I refer to quarters of years rather 
than months. Section 30.801(c) thus defines quarter as the three-month 
period January through March, April through June, July through 
September, or October through December. Section 30.801(d) indicates 
that a quarter during which the employee was unemployed means any 
quarter during which the covered Part E employee had $700 (in constant 
2005 dollars) or less in wages, unless the quarter is one during which 
the employee was retired. However, claimants have the opportunity to 
submit probative factual evidence that the employee was actually 
unemployed during a time period other than a quarter as defined in 
Sec.  30.801(c). If probative evidence of unemployment using a time 
period other than a quarter is submitted, OWCP will decide if, in the 
sole exercise of its discretion, it should modify its finding regarding 
the average annual wage of the covered Part E employee.
    Finally, Sec.  30.801(e) defines a year of wage-loss as a calendar 
year in which the employee's earnings were less than what OWCP found to 
be his or her average annual wage, after such earnings have been 
adjusted by the Consumer Price Index for All Urban Consumers (CPI-U), 
as established by the Bureau of Labor Statistics, to reflect their 
value in the year in which the employee first experienced wage-loss due 
to exposure to a toxic substance at a facility covered by the program. 
As an example of how this wage adjustment will be made, assume that a 
covered Part E employee's average annual wage is found to be $50,000 
(averaging his wages for the twelve quarters from the last quarter of 
1984 through the third quarter of 1987), and that for the calendar year 
1987 (the year in which he first experienced wage-loss due to a covered 
illness during the fourth quarter) the CPI-U is 100. If the employee's 
subsequent wages in calendar year 1988 did not rise because medical 
restrictions due to his covered illness forced him to transfer to a 
lower paying position that paid $45,000 in 1987 and $50,000 in 1988, 
and the CPI-U for 1988 was 105, OWCP will adjust the employee's 1988 
earnings to reflect their value in 1987 by performing the following 
calculation: $50,000 (in 1988 dollars) /1.05 = $47,619 (in 1987 
dollars). In that instance, OWCP would conclude that the covered Part E 
employee had sustained a year of wage-loss in 1988 as defined by Sec.  
30.801(e) because he earned less in adjusted dollars in 1988 than his 
average annual wage determined by Sec.  30.801(a), despite the fact 
that his earnings in 1988 equaled his average annual wage.
Evidence of Wage-Loss
    Section 30.805 describes the factual evidence of earnings that OWCP 
will rely upon to determine the average annual wage of a covered Part E 
employee, and the duration and extent of such employee's compensable 
wage-loss. In some situations, OWCP may rely upon earnings information 
that has been reported to the Social Security Administration, but may 
also rely upon additional earnings information submitted by or 
requested from a claimant as described below in connection with Sec.  
30.806. Subsection (b) of Sec.  30.805 also indicates that in addition 
to factual evidence of a covered Part E employee's earnings, the 
claimant must submit rationalized medical evidence that is of 
sufficient probative value to establish, to the satisfaction of OWCP, 
that the period of wage-loss at issue is causally related to the 
covered Part E employee's covered illness. These two types of evidence 
are necessary to establish compensable wage-loss under the explicit 
language of section 7385s-2(a)(2)(A)(iii) of EEOICPA.
    As noted in the preceding paragraph, Sec.  30.806 provides 
claimants with the opportunity to submit factual evidence of earnings 
from another source that, if it is found by OWCP to be both authentic 
and acceptable as evidence that was produced in the ordinary course of 
business due to the covered Part E employee's employment, may be used 
to support an assertion of a different average annual wage for the 
covered Part E employee, or a greater duration or extent of wage-loss, 
than the evidence described in Sec.  30.805(a) would support. If OWCP 
receives this evidence from a claimant, Sec.  30.806 indicates that 
OWCP will consider it when it determines, in the exercise of its 
discretion, the average annual wage and/or wage-loss of the covered 
Part E employee in accordance with Sec. Sec.  30.811 and 30.812.

Determinations of Average Annual Wage and Percentages of Loss

    After it receives the factual and medical evidence described in 
Sec. Sec.  30.805 and 30.806, OWCP will calculate the average annual 
wage of a covered Part E employee pursuant to the method described in 
Sec.  30.810. In general, that section notes that OWCP will add up the 
covered Part E employee's earnings during the 12 quarters prior to the 
quarter in which the employee first experienced wage-loss due to a 
covered illness, excluding any quarters during which the employee was 
unemployed (unless the claimant has submitted sufficient earnings 
information from a different source), divide that figure by the number 
of quarters during which the employee was not unemployed, and multiply 
the result by four to derive his or her average annual wage.
    Subsections (a) and (b) of Sec.  30.811 indicate that OWCP will 
then compare the average annual wage of a covered Part E employee with 
his or her earnings in later calendar years (after adjusting those 
earnings in accordance with Sec.  30.801(e)) to ascertain the calendar 
years during which the employee experienced wage-loss. Subsections (c) 
and (d) of Sec.  30.811 then provide that OWCP will aggregate the 
number of calendar years of wage-loss in which the employee's adjusted 
earnings did not exceed 50 percent of his or her average annual wage, 
and the number of calendar years of wage-loss in which those earnings 
exceeded 50 percent but not more than 75 percent of such average annual 
wage, and will pay the employee $15,000 or $10,000 per calendar year, 
respectively.
    Section 30.812 explains that a covered Part E employee who has been 
previously awarded compensation for wage-loss may file claims for 
additional calendar years of wage-loss subsequent to any calendar years 
for which he or she has already been paid

[[Page 33598]]

compensation. Consistent with the statute, this section provides that 
no compensation for wage-loss will be payable for any calendar year of 
wage-loss beyond the calendar year in which the employee reached his or 
her normal retirement age set forth in section 216(l) of the Social 
Security Act, 42 U.S.C. 416(l).

Special Rules for Certain Survivor Claims Under Part E

    Section 30.815 contains the special rules that apply to survivor 
claims involving wage-loss under Part E of EEOICPA. Subsection (a) 
indicates that for each calendar year after the calendar year in which 
a covered Part E employee died, through and including the calendar year 
in which the employee would have reached his or her normal retirement 
age, OWCP will presume that the employee earned wages that did not 
exceed 50 percent of his or her average annual wage. Subsection (b) 
indicates that except as provided in Sec.  30.815(a), OWCP will 
calculate the wage-loss of a deceased covered Part E employee in 
accordance with the provisions of Sec. Sec.  30.800 through 30.811. 
Finally, subsection (c) of Sec.  30.815 describes how OWCP will 
determine if the eligible surviving beneficiary(s) of a deceased 
covered Part E employee is entitled to receive additional compensation 
in the amount of either $25,000 or $50,000 based on either ten or 20 
aggregate calendar years of wage-loss experienced by the employee, as 
provided by section 7385s-3(a)(2) or (3) of the Act.

Subpart J--Impairment Benefits Under Part E

    This new subpart sets forth the procedures that OWCP uses to 
determine if a covered Part E employee is entitled to compensation 
under Part E based on impairment that is the result of a covered 
illness. It includes provisions describing how OWCP determines the 
extent of an employee's impairment that is attributable to a covered 
illness, the submission of medical evidence of impairment, what OWCP 
considers to be a ratable permanent impairment in certain defined 
situations, and the potential eligibility of covered Part E employees 
for additional impairment benefits following an award of impairment 
benefits by OWCP.
General Provisions
    Section 30.900 describes the criteria, set forth in sections 7385s, 
7385s-2, 7385s-4 and 7385s-5 of EEOICPA, that an employee must satisfy 
to qualify for an impairment award under Part E: (1) That he or she is 
a covered Part E employee found to have contracted a covered illness 
through exposure to a toxic substance at a DOE facility or RECA section 
5 facility, as appropriate; and (2) that he or she has been found by 
OWCP to have an impairment that is the result of the accepted covered 
illness.
    Section 30.901 describes the general process that OWCP uses, based 
on section 7385s-2 of the Act, to determine if a covered Part E 
employee's claim for an alleged impairment attributable to a covered 
illness is compensable. Subsection (a) indicates that OWCP will 
consider medical reports from physicians that include opinions 
regarding the extent of whole person impairment of all organs and body 
functions compromised by a covered illness, and the extent of such 
impairment attributable to the employee's covered illness. Subsection 
(b) provides that OWCP will determine the employee's minimum impairment 
rating in accordance with the AMA's Guides, based on medical reports 
from physicians trained to perform these impairment evaluations, and 
subsection (c) of Sec.  30.901 notes that OWCP will specify criteria 
that physicians must meet to perform impairment evaluations. Those 
criteria, which will include certification by a relevant medical board 
and other objective factors necessary to qualify a physician to perform 
an impairment evaluation under Part E, will be available to claimants, 
physicians and members of the public on OWCP's website. Finally, 
subsection (d) of Sec.  30.901 provides that if one or more percentage 
points of the minimum impairment rating are found by OWCP to be the 
result of a covered illness, the employee is entitled to an award based 
on those percentage points. Section 30.902 describes the formula that 
OWCP uses to calculate impairment awards, from section 7385s-2(a)(1) of 
the Act.
Medical Evidence of Impairment
    There are two ways that OWCP can obtain an impairment evaluation of 
a covered Part E employee that is sufficient to permit OWCP to 
adjudicate impairment benefits. Section 30.905(a) indicates that OWCP 
can ask the employee to undergo an impairment evaluation performed by a 
physician who meets the criteria OWCP has identified. Alternatively, 
subsection (b) of Sec.  30.905 provides that an employee can obtain an 
impairment evaluation at his or her own initiative and submit it to 
OWCP for consideration, but notes that OWCP will only deem it 
appropriate to consider if it satisfies three criteria indicative of 
probative value: (1) It was performed by a physician who meets the 
criteria identified by OWCP relating to the covered illness or 
illnesses in question; (2) it was performed no more than one year prior 
to the date it was received by OWCP; and (3) it also conforms to all 
other applicable requirements set out in the regulations in this part.
    OWCP will pay for impairment evaluations, except in certain defined 
circumstances, as indicated in Sec.  30.906. That section also notes 
that while OWCP will only pay for one impairment evaluation obtained by 
an employee, it may direct the employee to undergo additional 
evaluations at its expense if such evaluations are warranted in its 
discretion.
    Section 30.907 describes how the district office evaluates the 
evidence of impairment in the case record. Subsection (a) notes that 
the employee may submit arguments and/or additional medical evidence of 
impairment to challenge an impairment evaluation in the case file at 
any time before the district office issues a recommended decision on 
the claim. However, subsection (a) also states that the district office 
will not consider an additional impairment evaluation, even if it 
differs from the impairment evaluation provided under Sec. Sec.  30.905 
or 30.906, if the report fails to conform to the criteria listed in 
Sec.  30.905(b).
    Section 30.907(b) notes that in those situations where the district 
office obtains an additional impairment evaluation of a covered Part E 
employee that differs from the impairment evaluation that was provided 
under Sec. Sec.  30.905 or 30.906, the district office will base the 
recommended decision on the alleged impairment on the impairment 
evaluation it considers to have the greatest probative value, including 
any obtained through a directed examination deemed necessary under 
Sec. Sec.  30.410 or 30.411. Section 30.908 addresses the FAB's 
evaluation of the evidence of impairment in the case record. Consistent 
with Sec.  30.907(a), which describes how the district office considers 
medical evidence of impairment, Sec.  30.908(a) notes that if a 
claimant submits an additional impairment evaluation to the FAB that 
differs from the impairment evaluation relied upon by the district 
office, the FAB will not consider the additional impairment evaluation 
if it fails to satisfy the criteria listed in Sec.  30.905(b). 
Subsection (b) provides that the claimant has the burden of proving 
that the additional impairment evaluation submitted is more probative 
than the evaluation relied upon by the district

[[Page 33599]]

office. Subsection (c) of Sec.  30.908 indicates that if a claimant 
submits an additional impairment evaluation that differs from the 
impairment evaluation relied upon by the district office, the FAB will 
review all relevant evidence of impairment in the case record and base 
its final decision regarding impairment on the evidence it considers 
most probative.
Ratable Medical Impairments
    The Conference Report for Public Law 108-375 suggests that for 
those impairments for which the AMA's Guides do not provide a method to 
assign a numerical percentage, the Department should devise another 
method to determine the amount of an impairment award to a covered Part 
E employee. See H.R. Conf. Rep. No. 108-767, at 893 (2004). The 
language of section 7385s-2(b), however, requires that a minimum 
impairment rating be determined in accordance with the AMA's Guides. In 
view of the inconsistency between that statutory language and the 
Conference Report, and the absence of any accepted system for 
calculating numerical impairment ratings for impairments that the AMA's 
Guides do not provide a method for calculating, OWCP is not doing so in 
this rulemaking. Thus, Sec.  30.901(a) indicates that an impairment 
that cannot be assessed quantitatively as a percentage using the AMA's 
Guides will not be included in the impairment award. As an example of 
when this will occur, subsection (b) of Sec.  30.910 specifically notes 
that a mental impairment that does not originate from a documented 
physical dysfunction of the nervous system, and thus cannot be assigned 
a numerical percentage using the AMA's Guides, will not be included in 
the minimum impairment rating.
    Section 30.911(a) is derived from the AMA's Guides and indicates 
that only those impairments that are considered permanent are 
``ratable.'' Subsection (a) provides that an impairment resulting from 
a covered illness will be included in the minimum impairment rating of 
the covered Part E employee only if OWCP finds that it has reached 
maximum medical improvement, meaning that the impairment is well-
stabilized and thus unlikely to change substantially, with or without 
additional medical treatment. Subsection (b) of Sec.  30.911, however, 
indicates that notwithstanding Sec.  30.911(a), if OWCP finds that an 
employee's covered illness is in the terminal stages based on medical 
evidence contained in the case record, it will include an impairment 
that results from such covered illness in the minimum impairment rating 
of the employee, even if the impairment has not reached maximum medical 
improvement. OWCP has determined that in such situations, it is not 
likely that an impairment will undergo any significant improvement, and 
that the interest of awarding impairment benefits promptly to such 
employees outweighs the possibility that on occasion, an employee might 
receive compensation for an impairment resulting from a covered illness 
in the terminal stages that unexpectedly improves significantly.
    Section 30.912 notes that a covered Part E employee who has 
previously been awarded impairment benefits by OWCP may file a claim 
for additional impairment benefits based on an increase in the minimum 
impairment rating attributable to the covered illness or illnesses from 
the impairment rating that formed the basis for the previous award of 
such benefits by OWCP. However, this section indicates that OWCP will 
only adjudicate claims for an increased rating that are filed at least 
two years from the date of the last award of impairment benefits, since 
to do otherwise would lead to obvious administrative inefficiencies. 
However, this waiting period will not apply to a claim for additional 
impairment that is based on an allegation that the employee contracted 
a new covered illness.

IV. Paperwork Reduction Act

    This interim final rule contains information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA). The 
information collection requirements set out in Sec. Sec.  30.401, 
30.404, 30.420, 30.421, 30.512, 30.518, 30.700, 30.701 and 30.702 of 
this rule, which relate to information required to be submitted by 
claimants and medical providers in connection with processing of bills, 
and overpaid individuals in connection with overpayments of EEOICPA 
benefits, were both submitted to and approved by OMB under the PRA, and 
the currently approved collections in OMB Control Nos. 1215-0054 
(expires June 30, 2007), 1215-0055 (expires November 30, 2006), 1215-
0137 (expires March 31, 2007), 1215-0144 (expires November 30, 2006), 
1215-0176 (expires January 31, 2007), 1215-0193 (expires March 31, 
2007) and 1215-0194 (expires March 31, 2007) will be revised to include 
new respondents added by this rule. The information collection 
requirements in this first group were not affected by any of the 
substantive changes that have been made in this rule.
    The information collection requirements in Sec. Sec.  30.100, 
30.101, 30.103, 30.111, 30.112, 30.113, 30.114, 30.206, 30.207, 30.212, 
30.213, 30.214, 30.215, 30.221, 30.222, 30.226, 30.415, 30.416, 30.417, 
30.505 and 30.620 of this rule were also previously submitted to and 
approved by OMB under the PRA, and were assigned OMB Control No. 1215-
0197 (expires August 31, 2007). The information collection requirements 
in this second group were also not affected by any of the substantive 
changes that have been made in this rule. However, this rule revises 
the currently approved collection in OMB Control No. 1215-0197 by 
adding six new information collection requirements, and also by 
incorporating the existing requirements in the currently approved 
collection in OMB Control No. 1215-0199 (expires January 31, 2006); 
this revision of a currently approved collection will be submitted to 
OMB for review under the PRA on the date of publication of this rule. 
The new information collection requirements in this rule are in 
Sec. Sec.  30.102, 30.231, 30.232, 30.806, 30.905 and 30.907, and 
relate to information required to be submitted by either claimants or 
physicians as part of the EEOICPA claims adjudication process. While 
the information collection requirements in Sec.  30.106 relating to 
information to be submitted by current and former DOE contractors and 
subcontractors, atomic weapons employers, beryllium vendors and other 
entities in possession of employment data for claimants are not new, 
they appear for the first time in this rule and will be incorporated 
into OMB Control No. 1215-0197 in this revision. The Department is 
proposing to create one new form to implement one of the new 
collections (see section A below). The remaining new and incorporated 
collections will be implemented without any specific form, or with a 
form currently in use in OMB Control No. 1215-0197 (see sections B 
through I below).

A. Claim for Additional Wage-Loss/Impairment: Form EE-10 (Sec.  30.102)

    Summary: Covered Part E employees who have previously been awarded 
benefits for wage-loss and/or impairment by OWCP may file claims for 
additional wage-loss and/or impairment benefits, if they experience 
another calendar year of wage-loss or an increase in their minimum 
impairment rating. Claims filed using Form EE-10 must be supported by 
sufficient factual and/or medical evidence to establish that the 
claimant is entitled to the benefits at issue, either factual evidence 
of another calendar year of compensable wage-loss or medical evidence 
of an

[[Page 33600]]

increased minimum impairment rating due to a covered illness or 
illnesses. All claimants filing Form EE-10 are required to swear or 
affirm that the information provided on that form is true, and are 
obligated to inform OWCP of any subsequent changes to that information.
    Need: A Form EE-10 claiming for additional wage-loss and/or 
impairment benefits is necessary to initiate OWCP's adjudication 
process for these additional claims filed by covered Part E employees.
    Respondents and proposed frequency of response: It is estimated 
that 1,877 respondents annually will file one Form EE-10.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE-10 is estimated to take an average of 
five minutes per respondent for a total annual burden of 156 hours.

B. Alternate Employment Verification Response (Sec.  30.106)

    Summary: Employees and/or survivors claiming benefits under the 
EEOICPA must establish, among other things, an employment history that 
includes at least one period of covered employment. To do so, claimants 
submit either a Form EE-3 listing periods of alleged covered 
employment, or a Form EE-4 containing basic employment information in 
situations where specific employment information is not available. If 
DOE is unable to verify the alleged employment history after reviewing 
records in its possession, but the alleged history identifies: (1) a 
beryllium vendor or DOE contractor or subcontractor that has been 
required by DOE to respond pursuant to 42 U.S.C. 7384v(c); or (2) some 
other entity in possession of pertinent employment data that has 
voluntarily agreed to respond, OWCP will ask the beryllium vendor, DOE 
contractor or subcontractor, or other entity to review data in its 
files regarding the employee and indicate if that data substantiates 
any periods of alleged covered employment listed on Form EE-3 or EE-4. 
This requirement is currently approved in OMB Control No. 1215-0199, 
and is being incorporated into this revision to an existing collection 
of information.
    Need: A documented history of covered employment is one of the 
elements that must be met to establish entitlement to benefits under 
the EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 100 respondents annually will submit this collection of 
information a total of 20 times.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each collection of this information is estimated to 
take an average of 30 minutes per response for a total annual burden of 
1,000 hours.

C. Employment History: Form EE-3 (Sec.  30.231)

    Summary: Employees and/or survivors claiming benefits under Part E 
of EEOICPA must establish, among other things, an employment history 
that includes at least one period of covered employment. Form EE-3 has 
been devised to elicit the basic factual information necessary to 
enable OWCP to make this particular finding of fact. In Form EE-3, the 
respondent (the employee or survivor) is asked to provide information 
with respect to his or her identity and contact information, the 
employee's identity, and the employee's complete employment history 
that includes dates of employment, the name and location of employers, 
position titles and descriptions of work performed, and information 
regarding any dosimetry badges worn. All respondents will be required 
to swear or affirm that the information provided on the Form EE-3 is 
true. Further, the employment history provided on Form EE-3 will be 
provided to DOE for verification.
    Need: Documentation of a history of covered employment is one of 
the elements that must be met to establish entitlement to benefits 
under Part E of EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 8,176 Part E respondents annually will file one Form EE-3.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE-3 is estimated to take an average of 1 
hour per response for a total added annual burden of 8,176 hours.

D. Employment History Affidavit: Form EE-4 (Sec.  30.231)

    Summary: As noted in section C above, employees and/or survivors 
claiming benefits under Part E of EEOICPA must establish, among other 
things, an employment history that includes at least one period of 
covered employment. In situations where the use of Form EE-3 may not be 
practicable (e.g., due to a lack of available information), Form EE-4 
may be used as an alternate method to provide OWCP with a basic 
employment history by affidavit. In Form EE-4, the respondent (someone 
other than the employee or survivor) is asked to provide information as 
to his or her identity and relationship to the employee, the employee's 
identity, and the employee's employment history that includes dates of 
employment, name and location of employers, descriptions of work 
performed, and an explanation of the basis for the employment history 
provided. All respondents will be required to swear or affirm that the 
factual information provided on the Form EE-4 is true. Further, the 
employment history provided on Form EE-4 will be provided to DOE or 
other entities for verification.
    Need: Documentation of a history of covered employment is one of 
the elements that must be met to establish entitlement to benefits 
under Part E of EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 2,044 Part E respondents annually will file one Form EE-4.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE-4 is estimated to take an average of 
30 minutes per response for a total added annual burden of 1,022 hours.

E. Medical Requirements: Form EE-7 (Sec.  30.232(a) and (b))

    Summary: Employees and/or survivors claiming benefits under Part E 
of EEOICPA (except for those who have received an award under section 5 
of RECA) must establish, among other things, that the employee 
sustained a covered illness. Form EE-7 has been devised to elicit the 
type of medical and occupational evidence (prepared by medical 
providers) needed to enable OWCP to make this particular finding of 
fact. Claimants may also be required to submit additional medical and 
occupational evidence (prepared by medical providers) as necessary. 
Form EE-7 describes the general requirements for medical evidence 
submitted in support of a claim for a covered illness under Part E of 
EEOICPA.
    Need: Documentation of a covered illness is one of the elements 
that must be met to establish entitlement to benefits under Part E of 
EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 8,176 Part E respondents annually will file one response to Form 
EE-7.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the

[[Page 33601]]

data needed, and complete and review each collection of this 
information is estimated to take an average of 15 minutes per response 
for a total added annual burden of 2,044 hours.

F. Supplemental Medical Evidence (Sec.  30.232(c))

    Summary: Employees and/or survivors claiming that an injury, 
illness, impairment or disability was sustained as a consequence of a 
covered illness under Part E must submit a narrative medical report 
from a physician that shows a causal relationship between the claimed 
consequential injury, illness, impairment or disability and the covered 
illness. A standardized form or format will not be used to request 
submission of this information, which will be collected on an as-needed 
basis.
    Need: Medical evidence of causal relationship is necessary to 
establish entitlement to benefits for a consequential injury, illness, 
impairment or disability under EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 1,500 Part E respondents annually will submit this collection of 
information once.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each collection of this information is estimated to 
take an average of 15 minutes per response for a total added annual 
burden of 375 hours.

G. Alternative Wage-Loss Evidence (Sec.  30.806)

    Summary: OWCP may use wage data from the Social Security 
Administration and/or other third parties to make findings regarding 
the average annual wage and the nature and extent of compensable wage-
loss of a covered Part E employee. If a claimant disagrees with the use 
of that data to make these findings, he or she may voluntarily submit 
records that were produced in the ordinary course of business due to 
the employee's employment and try to persuade OWCP that Social Security 
Administration or other wage data should not be used to make the 
findings in question. A standardized form or format will not be used to 
collect this information, which will vary widely among respondents and 
occur only occasionally.
    Need: OWCP must have alternative wage-loss evidence of sufficient 
probative value before it can calculate benefits payable for wage-loss 
experienced by a covered Part E employee.
    Respondents and proposed frequency of response: It is estimated 
that 800 respondents annually will submit this collection of 
information once.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each collection of this information is estimated to 
take an average of 30 minutes per response for a total annual burden of 
400 hours.

H. Medical Evidence of Impairment (Sec.  30.905)

    Summary: OWCP must obtain contemporaneous medical evidence from a 
physician experienced in evaluating permanent impairment before it can 
determine the impairment rating of a covered Part E employee. If the 
medical evidence that is already in the case record does not meet these 
criteria when this stage in the claims adjudication process is reached, 
OWCP will inform the claimant of this deficiency and request that he 
submit medical evidence sufficient for it to determine his overall 
impairment rating, and the number of percentage points of his rating 
that are attributable to his covered illness or illnesses. Since 
requests for an impairment evaluation will necessarily be illness-
specific, a standardized form or format cannot be used to request this 
information.
    Need: An impairment evaluation that meets OWCP's criteria must be 
in the case record before OWCP can determine the number of percentage 
points that are payable.
    Respondents and proposed frequency of response: It is estimated 
that 1,453 respondents annually will submit this collection of 
information once.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each collection of this information is estimated to 
take an average of 15 minutes per response for a total annual burden of 
363 hours.

I. Additional Medical Evidence of Impairment (Sec.  30.907)

    Summary: After the district office receives an impairment 
evaluation that meets its criteria for compensating covered Part E 
employees, but before it issues a recommended decision on a claimant's 
impairment rating, the claimant may, on his own initiative and at his 
own cost, obtain additional medical impairment evidence supporting a 
higher rating and submit it to the district office for its 
consideration if it too meets the same criteria. A standardized form or 
format cannot be used to request this particular type of information 
because the impairment evaluation that it seeks to rebut will 
necessarily be specific to a particular employee.
    Need: Claimants may wish to submit additional impairment evidence 
that shows a higher rating before OWCP determines the number of 
compensable percentage points that are payable.
    Respondents and proposed frequency of response: It is estimated 
that 218 respondents annually will submit this collection of 
information once.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each collection of this information is estimated to 
take an average of 15 minutes per response for a total annual burden of 
55 hours.

J. Total Annual Burden and Request for Comments

    Total public burden: The information collection requirements being 
either added to or incorporated into OMB Control No. 1215-0197 
(described above in sections A through I) have a total public burden 
hour estimate of 13,591. Using the latest National average hourly 
earnings $15.95 (from the Bureau of Labor Statistics), the total added 
annual public cost for these information collection requirements is 
estimated to be $216,776. There are no recordkeeping or collection 
costs associated with Form EE-10. Because the information requested by 
the collections described in sections B through I is kept as a usual 
and customary business practice, there is no additional recordkeeping 
or collection cost associated with those collections. The only 
operation and maintenance cost will be for postage and mailing. An 
estimated 50% of the EE-10 forms will involve postage and mailing 
costs; the remainder will be received directly by DOL personnel or 
contractors. The EE-3 form always accompanies the initial claim form 
filed, therefore no additional postage or mailing is required. An 
estimated annual total of 17,130 mailed responses to these information 
collection requirements, at $0.37 (for postage) + $0.03 (for an 
envelope) per response, would be $6,852.
    Request for comments: The public is invited to provide comments on 
the above-noted revision to the currently approved collection in OMB 
Control No. 1215-0197 so that the Department may:
    (1) Evaluate whether the proposed collections of information are 
necessary for the proper performance of the functions of the agency, 
including

[[Page 33602]]

whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimates of the burdens 
of the collections of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collections of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    Send comments regarding this burden estimate, or any other aspect 
of this revision to the currently approved collection in OMB Control 
No. 1215-0197, including suggestions for reducing this burden, to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Attention: Desk Officer for Employment Standards 
Administration, Washington, DC 20503 no later than July 8, 2005.

V. Statutory Authority

    Section 7384d of EEOICPA provides general statutory authority, 
which E.O. 13179 allocates to the Secretary, to prescribe rules and 
regulations necessary for administration of Part B of the Act. Section 
7385s-10 provides the Secretary with the general statutory authority to 
administer Part E of the Act. Sections 7384t, 7384u and 7385s-8 provide 
the specific authority regarding medical treatment and care, including 
authority to determine the appropriateness of charges. The Federal 
Claims Collection Act of 1966, as amended (31 U.S.C. 3701 et seq.), 
authorizes imposition of interest charges and collection of debts by 
withholding funds due the debtor.

VI. Executive Order 12866

    This rule is being treated as a ``significant regulatory action,'' 
within the meaning of E.O. 12866, because it is ``economically 
significant'' as defined by section 3(f)(1) of that Order. The payment 
of the benefits provided for by EEOICPA through the program 
administered pursuant to this regulatory action has an annual effect on 
the economy of $100 million or more. However, this rule does not 
adversely affect in a material way the economy, a sector of the 
economy, productivity, jobs, the environment, public health or safety, 
or State, local, or tribal governments or communities, as defined by 
section 3(f)(1) of E.O. 12866. This rule is also a ``significant 
regulatory action'' because it meets the criteria of section 3(f)(4) of 
that Order in that it raises novel or legal policy issues arising out 
of the legal mandate established by EEOICPA. The Department of Labor 
has also concluded that this rule constitutes a ``major rule,'' as that 
term is defined in the Small Business Regulatory Enforcement Fairness 
Act of 1996 (5 U.S.C. 804(2)), because of the effect on the economy 
noted above.
    Based on the factors and assumptions set forth below, DOL's 
estimate of the aggregate cost of benefits and administrative expenses 
of this regulatory action implementing Part B and Part E of EEOICPA is, 
in millions of dollars:

----------------------------------------------------------------------------------------------------------------
                                                             FY2005     FY2006     FY2007     FY2008     FY2009
----------------------------------------------------------------------------------------------------------------
Admin....................................................        $90       $156       $102        $77        $63
Benefits.................................................      1,025        760        593        468        424
----------------------------------------------------------------------------------------------------------------

    The Department's estimate of the benefits to be paid pursuant to 
EEOICPA and of the administrative costs of providing those benefits is 
based on program experience to date, data collected from other federal 
agencies, assumptions about the incidence of cancer, covered beryllium 
disease, chronic silicosis and other covered illnesses in the claimant 
population, life expectancy tables, dose reconstruction acceptance 
rates, Physician Panel acceptances under the former Part D of the Act, 
the anticipated distribution of benefit amounts, and its experience in 
estimating administrative and medical costs of workers' compensation 
programs.
    For Part B benefits, estimates for cancer claims are based in part 
on figures provided by DOE concerning the number of DOE and DOE 
contractor employees (estimated by DOE to be approximately 654,000 
since 1942), known cancer incidence rates in the general population 
obtained from the National Cancer Institute (the lifetime risk of being 
diagnosed with cancer is 45.67% for men and 38.09% for women for all 
body locations \1\), and the proportion of these claims likely to be 
accepted by OWCP. These benefit estimates include anticipated medical 
costs of $1,500 per year for 90% of the covered Part B employees, and 
$125,000 per year for the remaining 10% because they are undergoing 
intensive in-hospital medical treatment.
---------------------------------------------------------------------------

    \1\ From Table I-14, Lifetime Risk (Percent) of Being Diagnosed 
with Cancer by Site, Race and Sex, in the SEER Cancer Statistics 
Review 1975-2000, published by the National Cancer Institute.
---------------------------------------------------------------------------

    Part B benefit estimates for beryllium exposure are based on known 
incidence rates, known numbers of claimants with beryllium diseases, 
exposed population estimates (approximately 45,000 beryllium vendor 
employees, and several hundred thousand additional employees at DOE 
facilities), and medical costs of $3,000 per year for beryllium 
sensitivity, $4,000 per year for mild chronic beryllium disease, and 
$9,000 per year for severe chronic beryllium disease. Benefit estimates 
for chronic silicosis are based on figures obtained from DOE relating 
to the number of exposed employees (approximately 15,000 miners were 
employed digging tunnels in either Nevada or Alaska related to nuclear 
testing) and the expected incidence of chronic silicosis, and medical 
costs of $4,000 per year for mild chronic silicosis, and $9,000 per 
year for severe chronic silicosis. Benefit estimates for claims that 
require receipt of an award pursuant to section 5 of RECA are based on 
figures for the number of claims provided by DOJ, and $4,800 per year 
in medical costs.
    Part E benefit estimates for covered Part E employees are based on 
the proportion of overlap between Part B and Part E claims (95% of Part 
E claimants also have filed a Part B claim), the historical dose 
reconstruction approval rate (since the inception of Part B, OWCP has 
accepted 23% of the 5,658 non-SEC cancer cases adjudicated to date), 
the historical Physician Panel approval rate under the former Part D 
(35%) and the number of Special Exposure Cohort claims approved by 
OWCP. The benefit amounts (which are not uniform as is the case in Part 
B awards) are calculated based on an estimated distribution of claims 
with varying degrees of compensable impairment and wage-loss. 
Additional Part E benefits for individuals who are considered to be 
eligible RECA section

[[Page 33603]]

5 uranium workers are computed based upon the number of such claims 
received to date and the expected number of such claims in the future.
    Administrative cost estimates were developed based upon OWCP's 
experience to date in administering Part B and the other workers' 
compensation programs that fall within its area of administrative 
responsibility, using calculations of the number of incoming claims and 
forecasting the necessary full-time equivalents and other resources 
that are necessary to efficiently administer the program.
    No more extensive economic impact analysis of this rule is 
necessary because this regulatory action only addresses the transfer of 
funds from the federal government to individuals who qualify under 
EEOICPA and to providers of medical services in that program. This 
regulatory action has no affect on the functioning of the economy and 
private markets, on the health and safety of the general population, or 
on the natural environment. In addition, because this rule implements a 
statutory mandate, there are no feasible alternatives to this 
regulatory action. Finally, to the extent that policy choices have been 
made in interpreting statutory terms, those choices have no significant 
impact on the cost of this regulatory action. Such policy choices may 
affect who will be entitled to receive benefits (such as covered Part E 
employees with unratable impairments due to a covered illness), but 
will not have a significant impact on the number of eligible Part B or 
E beneficiaries or the level of benefits to which they are entitled.
    OMB has reviewed the rule for consistency with the President's 
priorities and the principles set forth in E.O. 12866.

VII. Small Business Regulatory Enforcement Fairness Act

    As required by Congress under the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), the Department 
will report to Congress promulgation of this Interim Final Rule on the 
date of its publication in the Federal Register. The report will state 
that DOL has concluded that this rule is a ``major rule'' because it 
will likely result in an annual effect on the economy of $100 million 
or more.

VIII. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 
et seq.) directs agencies to assess the effects of federal regulatory 
actions on state, local, and tribal governments, and the private 
sector, ``other than to the extent that such regulations incorporate 
requirements specifically set forth in law.'' For purposes of the 
Unfunded Mandates Reform Act, this rule does not include any federal 
mandate that may result in increased annual expenditures in excess of 
$100 million by state, local or tribal governments in the aggregate, or 
by the private sector.

IX. Regulatory Flexibility Act

    The Department believes that this rule will have ``no significant 
economic impact upon a substantial number of small entities'' within 
the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The provisions of this rule that apply cost-control measures to 
payments for medical expenses are the only ones that could have a 
monetary effect on small businesses, and have been in effect since OWCP 
began administration of Part B of EEOICPA on July 31, 2001. The 
economic effect of these cost-control measures will not be significant 
for a substantial number of those businesses who will now participate 
in the program under Part E of EEOICPA, however, because no one 
business bills a significant amount to OWCP for EEOICPA-related 
services, and the monetary effect on bills that are submitted, while a 
worthwhile savings for the Government in the aggregate, will not be 
significant for any individual business affected.
    The cost-control provisions are: (1) A set schedule of maximum 
allowable fees for professional medical services; (2) A set schedule 
for payment of pharmacy bills; and (3) a prospective payment system for 
hospital inpatient services. The methodologies used for the first two 
of these provisions were explained in the text of the preamble to the 
earlier regulatory actions that implemented EEOICPA in 2001 (66 FR 
28948) and 2002 (67 FR 78874), which essentially adopted payment 
systems that are prevalent in the industry. Their adoption for use in 
connection with OWCP's administration of Part E of the Act will 
therefore result in continued efficiencies for the Government and 
providers. The Government will benefit because OWCP did not develop new 
cost containment measures for Part E claims, but rather adopted 
existing and well-recognized measures that were already in place. The 
providers benefit because submitting a bill and receiving a payment 
will be almost the same as submitting it to Medicare, a program with 
which they are already familiar and have existing systems in place for 
billing--they will not have to incur unnecessary administrative costs 
to learn a new process because the EEOICPA bill process for Part E 
claims will be identical to the bill process that applies to Part B 
claims, and will not be readily distinguishable from the Medicare 
billing process. Similarly, pharmacies are familiar with billing 
through clearing houses and having their charges subject to limits by 
private insurance carriers. By adopting private sector uniform billing 
requirements and a familiar cost control methodology, OWCP has not 
altered the billing environment with which pharmacies are already 
familiar. The methods chosen, therefore, represent systems familiar to 
the providers. The third of these three provisions will not have an 
effect on a substantial number of ``small entities'' under Small 
Business Administration (SBA) standards, since most hospitals providing 
services for medical conditions covered by EEOICPA will have annual 
receipts that exceed the set maximum.
    The implementation of these cost-control methods will have no 
significant effect on any single medical professional or pharmacy since 
they are already used by Medicare, CHAMPUS, and the Departments of 
Labor and Veterans Affairs, among Government entities, and by private 
insurance carriers. In actual terms, the amount by which these provider 
bills might be reduced will not have a significant impact on any one 
small entity since these charges are currently being processed by other 
payers applying similar cost-control provisions. The costs to providers 
whose charges may be reduced also will be relatively small because 
EEOICPA bills simply will not represent a large share of any single 
provider's total business. Since the small universe of potential 
claimants is spread across the United States and this bill processing 
system will cover only those employees who have sustained an 
occupational illness or a covered illness and required medical 
treatment on or after October 30, 2000, the number of bills submitted 
by any one small entity which may be subject to these provisions is 
likely to be very small. Therefore, the ``cost'' of this rule to any 
one pharmacy or medical professional will be negligible. On the other 
hand, OWCP will see substantial aggregate cost savings that will 
benefit both OWCP (by strengthening the integrity of the program) and 
the taxpayers to whom the costs of the program are eventually charged.
    The Assistant Secretary for Employment Standards has certified to 
the Chief Counsel for Advocacy of the SBA that this rule will not have 
a significant impact on a substantial number of small entities. The 
factual basis for this certification has been

[[Page 33604]]

provided above. Accordingly, no regulatory impact analysis is required.

X. Executive Order 12988 (Civil Justice Reform)

    This rule has been drafted and reviewed in accordance with E.O. 
12988 and will not unduly burden the federal court system. While Part B 
of EEOICPA does not provide any specific procedures that claimants 
under that Part must follow in order to seek review of decisions on 
their claims, Part E specifies that claimants under that Part have 60 
days to file petitions for review of decisions on their claims in the 
United States district courts, and mandates the use of an ``arbitrary 
and capricious'' standard of review. It is reasonably likely that some 
EEOICPA claimants will seek review of adverse decisions in United 
States district courts pursuant to the APA (for claims under Part B of 
EEOICPA) or the EEOICPA itself (for claims under Part E). This rule 
should help minimize the burden placed on the courts by litigation 
seeking to challenge decisions under EEOICPA by providing claimants 
with an opportunity to seek administrative review of adverse decisions 
prior to resorting to the court system, and by providing a clear legal 
standard for affected conduct. The rule has been reviewed carefully to 
eliminate drafting errors and ambiguities.

XI. Executive Order 13132 (Federalism)

    The Department has reviewed this rule in accordance with E.O. 13132 
regarding federalism, and has determined that it does not have 
``federalism implications.'' The rule does not ``have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''

XII. Executive Order 13045 (Protection of Children From Environmental, 
Health Risks and Safety Risks)

    In accordance with E.O. 13045, the Department has evaluated the 
environmental health and safety effects of this rule on children, and 
has determined that it will have no effect on children.

XIII. Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use)

    In accordance with E.O. 13211, the Department has evaluated the 
effects of this rule on energy supply, distribution or use, and has 
determined that it is not likely to have a significant adverse effect 
on them.

XIV. Submission to Congress and the General Accountability Office

    In accordance with the Congressional Review Act provisions of the 
Small Business Regulatory Enforcement Fairness Act, the Department will 
submit to each House of the Congress and to the Comptroller General a 
report regarding the issuance of this interim final rule on the date of 
its publication in the Federal Register. The report will note that this 
rule constitutes a ``major rule'' as defined by 5 U.S.C. 804(2).
    Under the Congressional Review Act, major rules generally cannot 
take effect until 60 days after the rule is published in the Federal 
Register. However, section 808(2) of the Congressional Review Act 
states that agencies may waive this 60-day requirement for ``good 
cause'' and establish an earlier effective date. As explained above, 
the Department believes that there is ``good cause'' for waiver of the 
APA requirement for notice and comment rulemaking because it would be 
both impractical and contrary to the public interest for the Department 
to fulfill that requirement. Similarly, the Department believes that 
the ``good cause'' exception to the 60-day effective date requirement 
for major rules in the Congressional Review Act applies to this rule, 
because observing this requirement would be both impractical and 
contrary to the public interest. As noted above, DOL will not be able 
to fully adjudicate claims under Part E of EEOICPA until the 
regulations in this rule are in effect. Since Congress has directed DOL 
to commence administration of Part E no later than May 26, 2005 in 
section 7385-10(f)(1) of EEOICPA, DOL believes that ``good cause'' 
exists for waiver of the usual 60-day effective date requirement for 
all ``major'' rules, and for this rule to become effective immediately 
upon the date of its publication in the Federal Register.

XV. Catalog of Federal Domestic Assistance Number

    This program is not listed in the Catalog of Federal Domestic 
Assistance.

List of Subjects

20 CFR Part 1

    Administrative practice and procedure, Claims, Government 
employees, Labor, Workers' compensation.

20 CFR Part 30

    Administrative practice and procedure, Cancer, Chemicals, Claims, 
Kidney diseases, Leukemia, Lung diseases, Miners, Radioactive 
materials, Tort claims, Underground mining, Uranium, Workers' 
compensation.

Text of the Rule

0
For the reasons set forth in the preamble, 20 CFR Chapter 1 is amended 
as follows:

SUBCHAPTER A--ORGANIZATION AND PROCEDURES

0
1. Part 1 is revised to read as follows:

PART 1--PERFORMANCE OF FUNCTIONS UNDER THIS CHAPTER

Sec.
1.1 Under what authority was the Office of Workers' Compensation 
Programs established?
1.2 What functions are assigned to OWCP?
1.3 What rules are contained in this chapter?
1.4 Where are other rules concerning OWCP functions found?
1.5 When was the former Bureau of Employees' Compensation abolished?
1.6 How were many of OWCP's current functions administered in the 
past?

    Authority: 5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No. 
6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat. 
1263); 42 U.S.C. 7384d and 7385s-10; Executive Order 13179, 65 FR 
77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 13-
71, 36 FR 8155; Employment Standards Order No. 2-74, 39 FR 34722.


Sec.  1.1  Under what authority was the Office of Workers' Compensation 
Programs established?

    The Assistant Secretary of Labor for Employment Standards, by 
authority vested in him by the Secretary of Labor in Secretary's Order 
No. 13-71, 36 FR 8755, established in the Employment Standards 
Administration an Office of Workers' Compensation Programs (OWCP) by 
Employment Standards Order No. 2-74, 39 FR 34722. The Assistant 
Secretary subsequently designated as the head thereof a Director who, 
under the general supervision of the Assistant Secretary, administers 
the programs assigned to OWCP by the Assistant Secretary.


Sec.  1.2  What functions are assigned to OWCP?

    The Assistant Secretary of Labor for Employment Standards has 
delegated authority and assigned responsibility to the Director of OWCP 
for the Department of Labor's programs under the following statutes:
    (a) The Federal Employees' Compensation Act, as amended and 
extended (5 U.S.C. 8101 et seq.), except 5 U.S.C. 8149 as it pertains 
to the Employees' Compensation Appeals Board.

[[Page 33605]]

    (b) The War Hazards Compensation Act (42 U.S.C. 1701 et seq.).
    (c) The War Claims Act (50 U.S.C. App. 2003).
    (d) The Energy Employees Occupational Illness Compensation Program 
Act of 2000, as amended (42 U.S.C. 7384 et seq.), except activities, 
pursuant to Executive Order 13179 (``Providing Compensation to 
America's Nuclear Weapons Workers'') of December 7, 2000, assigned to 
the Secretary of Health and Human Services, the Secretary of Energy and 
the Attorney General.
    (e) The Longshore and Harbor Workers' Compensation Act, as amended 
and extended (33 U.S.C. 901 et seq.), except: 33 U.S.C. 919(d) with 
respect to administrative law judges in the Office of Administrative 
Law Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review 
Board; and activities, pursuant to 33 U.S.C. 941, assigned to the 
Assistant Secretary of Labor for Occupational Safety and Health.
    (f) The Black Lung Benefits Act, as amended (30 U.S.C. 901 et 
seq.).


Sec.  1.3  What rules are contained in this chapter?

    The rules in this chapter are those governing the OWCP functions 
under the Federal Employees' Compensation Act, the War Hazards 
Compensation Act, the War Claims Act and the Energy Employees 
Occupational Illness Compensation Program Act of 2000.


Sec.  1.4  Where are other rules concerning OWCP functions found?

    (a) The rules of the OWCP governing its functions under the 
Longshore and Harbor Workers' Compensation Act and its extensions are 
set forth in subchapter A of chapter VI of this title.
    (b) The rules of the OWCP governing its functions under the Black 
Lung Benefits Act program are set forth in subchapter B of chapter VI 
of this title.
    (c) The rules and regulations of the Employees' Compensation 
Appeals Board are set forth in chapter IV of this title.
    (d) The rules and regulations of the Benefits Review Board are set 
forth in chapter VII of this title.


Sec.  1.5  When was the former Bureau of Employees' Compensation 
abolished?

    By Secretary of Labor's Order issued September 23, 1974, 39 FR 
34723, issued concurrently with Employment Standards Order 2-74, 39 FR 
34722, the Secretary revoked the prior Secretary's Order No. 18-67, 32 
FR 12979, which had delegated authority and assigned responsibility for 
the various workers' compensation programs enumerated in Sec.  1.2, 
except the Black Lung Benefits Program and the Energy Employees 
Occupational Illness Compensation Program not then in existence, to the 
Director of the former Bureau of Employees' Compensation.


Sec.  1.6  How were many of OWCP's current functions administered in 
the past?

    (a) Administration of the Federal Employees' Compensation Act and 
the Longshore and Harbor Workers' Compensation Act was initially vested 
in an independent establishment known as the U.S. Employees' 
Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR, 
1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the 
Commission was abolished and its functions were transferred to the 
Federal Security Agency to be performed by a newly created Bureau of 
Employees' Compensation within such Agency. By Reorganization Plan No. 
19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat. 
1271), said Bureau was transferred to the Department of Labor (DOL), 
and the authority formerly vested in the Administrator, Federal 
Security Agency, was vested in the Secretary of Labor. By 
Reorganization Plan No. 6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp., 
page 1004, 64 Stat. 1263), the Secretary of Labor was authorized to 
make from time to time such provisions as he shall deem appropriate, 
authorizing the performance of any of his functions by any other 
officer, agency, or employee of the DOL.
    (b) In 1972, two separate organizational units were established 
within the Bureau: an Office of Workmen's Compensation Programs (37 FR 
20533) and an Office of Federal Employees' Compensation (37 FR 22979). 
In 1974, these two units were abolished and one organizational unit, 
the Office of Workers' Compensation Programs, was established in lieu 
of the Bureau of Employees' Compensation (39 FR 34722).

0
2. Subchapter C consisting of Part 30 is revised to read as follows:

SUBCHAPTER C--ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION 
PROGRAM ACT OF 2000

PART 30--CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES 
OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED

Subpart A--General Provisions

Introduction

Sec.
30.0 What are the provisions of the EEOICPA, in general?
30.1 What rules govern the administration of the EEOICPA and this 
chapter?
30.2 In general, how have the tasks associated with the 
administration of the EEOICPA claims process been assigned?
30.3 What do these regulations contain?

Definitions

30.5 What are the definitions used in this part?

Information in Program Records

30.10 Are all OWCP records relating to claims filed under the 
EEOICPA considered confidential?
30.11 Who maintains custody and control of claim records?
30.12 What process is used by a person who wants to obtain copies of 
or amend EEOICPA claim records?

Rights and Penalties

30.15 May EEOICPA benefits be assigned, transferred or garnished?
30.16 What penalties may be imposed in connection with a claim under 
the Act?
30.17 Is a beneficiary who defrauds the government in connection 
with a claim for EEOICPA benefits still entitled to those benefits?
Subpart B--Filing Claims; Evidence and Burden of Proof; Special 
Procedures for Certain Cancer Claims

Filing Claims for Benefits Under EEOICPA

30.100 In general, how does an employee file an initial claim for 
benefits?
30.101 In general, how is a survivor's claim filed?
30.102 In general, how does an employee file a claim for additional 
impairment or wage-loss under Part E of EEOICPA?
30.103 How does a claimant make sure that OWCP has the evidence 
necessary to process the claim?

Verification of Alleged Employment

30.105 What must DOE do after an employee or survivor files a claim?
30.106 Can OWCP request employment verification from other sources?

Evidence and Burden of Proof

30.110 Who is entitled to compensation under the Act?
30.111 What is the claimant's responsibility with respect to burden 
of proof, production of documents, presumptions, and affidavits?
30.112 What kind of evidence is needed to establish covered 
employment and how will that evidence be evaluated?
30.113 What are the requirements for written medical documentation, 
contemporaneous records, and other records or documents?
30.114 What kind of evidence is needed to establish a covered 
medical condition and how will that evidence be evaluated?

Special Procedures for Certain Radiogenic Cancer Claims

30.115 For those radiogenic cancer claims that do not seek benefits 
under Part B of the Act pursuant to the Special Exposure

[[Page 33606]]

Cohort provisions, what will OWCP do once it determines that an 
employee contracted cancer?
Subpart C--Eligibility Criteria

General Provisions

30.200 What is the scope of this subpart?

Eligibility Criteria for Claims Relating to Covered Beryllium Illness 
Under Part B of EEOICPA

30.205 What are the criteria for eligibility for benefits relating 
to beryllium illnesses covered under Part B of EEOICPA?
30.206 How does a claimant prove that the employee was a ``covered 
beryllium employee'' exposed to beryllium dust, particles or vapor 
in the performance of duty?
30.207 How does a claimant prove a diagnosis of a beryllium disease 
covered under Part B?

Eligibility Criteria for Claims Relating to Radiogenic Cancer Under 
Parts B and E of EEOICPA

30.210 What are the criteria for eligibility for benefits relating 
to radiogenic cancer?
30.211 How does a claimant establish that the employee has or had 
contracted cancer?
30.212 How does a claimant establish that the employee contracted 
cancer after beginning employment at a DOE facility, an atomic 
weapons employer facility or a RECA section 5 facility?
30.213 How does a claimant establish that the radiogenic cancer was 
at least as likely as not related to employment at the DOE facility, 
the atomic weapons employer facility, or the RECA section 5 
facility?
30.214 How does a claimant establish that the employee is a member 
of the Special Exposure Cohort?
30.215 How does a claimant establish that the employee has sustained 
an injury, illness, impairment or disease as a consequence of a 
diagnosed cancer?

Eligibility Criteria for Claims Relating to Chronic Silicosis Under 
Part B of EEOICPA

30.220 What are the criteria for eligibility for benefits relating 
to chronic silicosis?
30.221 How does a claimant prove exposure to silica in the 
performance of duty?
30.222 How does a claimant establish that the employee has been 
diagnosed with chronic silicosis or has sustained a consequential 
injury, illness, impairment or disease?

Eligibility Criteria for Certain Uranium Employees Under Part B of 
EEOICPA

30.225 What are the criteria for eligibility for benefits under Part 
B of EEOICPA for certain uranium employees?
30.226 How does a claimant establish that a covered uranium employee 
has sustained a consequential injury, illness, impairment or 
disease?

Eligibility Criteria for Other Claims Under Part E of EEOICPA

30.230 What are the criteria necessary to establish that an employee 
contracted a covered illness under Part E of EEOICPA?
30.231 How does a claimant prove employment-related exposure to a 
toxic substance at a DOE facility or a RECA section 5 facility?
30.232 How does a claimant establish that the employee has been 
diagnosed with a covered illness, or sustained an injury, illness, 
impairment or disease as a consequence of a covered illness?
Subpart D--Adjudicatory Process
30.300 What process will OWCP use to decide claims for entitlement 
and to provide for administrative review of those decisions?
30.301 May subpoenas be issued for witnesses and documents in 
connection with a claim under Part B of EEOICPA?
30.302 Who pays the costs associated with subpoenas?
30.303 What information may OWCP request in connection with a claim 
under Part E of EEOICPA?

Recommended Decisions on Claims

30.305 How does OWCP determine entitlement to EEOICPA compensation?
30.306 What does the recommended decision contain?
30.307 To whom is the recommended decision sent?

Hearings and Final Decisions on Claims

30.310 What must the claimant do if he or she objects to the 
recommended decision or wants to request a hearing?
30.311 What happens if the claimant does not object to the 
recommended decision or request a hearing within 60 days?
30.312 What will the FAB do if the claimant objects to the 
recommended decision but does not request a hearing?
30.313 How is a review of the written record conducted?
30.314 How is a hearing conducted?
30.315 May a claimant postpone a hearing?
30.316 How does the FAB issue a final decision on a claim?
30.317 Can the FAB request a further response from the claimant or 
return a claim to the dist