EEOICPA BULLETIN NO.  07-03

 

Issue Date:  December 13, 2006

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Effective Date: November 23, 2005

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Expiration Date: December 13, 2007

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Subject: De-listing National Bureau of Standards (NBS) – Van Ness Street (DC), Picatinny Arsenal(Dover, NJ), Seneca Army Depot(Romulus, NY), and Frankford Arsenal(Philadelphia, PA) as Atomic Weapons Employers(AWEs).

 

Background: 42 U.S.C. § 7384l(4) defines the term “atomic weapons employer” as an entity, other than the United States, that—

(A)  processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and

(B)  is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.

 

42 U.S.C. § 7384l(5) defines the term “atomic weapons employer facility” as “a facility, owned by an atomic weapons employer, that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling.”

 

Seneca Army Depot, Picatinny Arsenal, and the Frankford Arsenal were owned by the United States (U.S. Army).  Similarly, NBS, as a predecessor to the National Institute of Standards and Technology (NIST), was part of the U.S. Department of Commerce.  Under the statutory definitions above, therefore, these facilities cannot be classified as AWEs.  Nevertheless, each of these had been erroneously designated as AWEs by the Department of Energy(DOE). In a Federal Register notice dated November 30, 2005, the DOE acknowledged that its designations of these facilities as AWEs were erroneous and formally revoked the designations (Attachment 1).  The notice therefore makes it clear that none of these facilities are covered AWEs under the Act.

 

In the event that proper documentation is obtained, however; these entities could be reclassified as DOE facilities, as the facts may warrant. At this time, however, no such documentation has been obtained.

 

Any cases that were active at the time of the de-listing and involve employment at any of these facilities have been handled individually.  This bulletin addresses how to handle any future claims that are filed with employment claimed at one of these facilities.

 

Reference:  42 U.S.C. § 7384l(4),(5), and (12),  70 Fed. Reg. 229 (30 November 2005).

 

Purpose: To provide guidance on how the district offices should handle future claims that are filed with employment claimed at NBS – Van Ness Street, Picatinny Arsenal, Seneca Army Depot, or Frankford Arsenal.

 

Applicability: All Staff

 

Actions:

 

1.   If a claim is received where the only claimed employment is at NBS – Van Ness Street, Picatinny Arsenal, Seneca Army Depot, or Frankford Arsenal, the claimant is provided the opportunity to submit evidence that may allow for these facilities to be reclassified as DOE facilities.  The claimant is provided a letter informing them of the statutory definition of a DOE facility and allowing them 30 days to submit evidence that their place of claimed employment meets this definition. 42 U.S.C. § 7384l(12) defines the term “Department of Energy facility” as any building, structure, or premise, including the grounds upon which such building, structure, or premise is located—

 

(A)  in which operations are, or have been, conducted by, or on behalf of, the Department of Energy (except for buildings, structures, premises, grounds, or operations covered by Executive Order No. 12344, dated February 1, 1982 (42 U.S.C. 7158 note), pertaining to the Naval Nuclear Propulsion Program); and

 

(B)  with regard to which the Department of Energy has or had—

 

(i)  a proprietary interest; or

 

(ii)  entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

 

2.              If any pertinent evidence is received that may allow for the reclassification of any of these facilities as a DOE facility, it is forwarded to National Office for review.  If no such evidence is received, a recommended decision is issued denying the claim for lack of covered employment.

 

3.   If employment at one of the above listed facilities is claimed, in addition to covered employment, a letter is sent informing the claimant that the de-listed facility is not a covered facility unless the claimant can provide evidence that will allow the reclassification of the facility as a DOE facility.  If the claimant provides no such evidence within 30 days, the claim should be adjudicated in the usual manner, excluding the employment of the de-listed facility.

 

Disposition: Retain until incorporated in the Federal (EEOICPA)

Procedure Manual.

 

 

 

PETER M. TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

 

Attachment 1

 

Distribution List No. 1: Claims Examiners, Supervisory Claims

Examiners, Technical Assistants, Customer Service

Representatives, Fiscal Officers, FAB District Managers,

Operation Chiefs, Hearing Representatives, District Office Mail

& File Sections