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Office of Workers' Compensation Programs

Division of Energy Employees Occupational Illness Compensation (DEEOIC)

EEOICP Regulations

[Federal Register: May 25, 2001 (Volume 66, Number 102)]
[Rules and Regulations] 
[Page 28947-29003]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25my01-8] 


[[Page 28947]]

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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 Under This Chapter; Claims for Compensation 
Under the Energy Employees Occupational Illness Compensation Program 
Act; Final Rule


[[Page 28948]]


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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Parts 1 and 30

RIN 1215-AB32


Performance of Functions Under This Chapter; 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 (EEOICPA or Act), that provides lump-sum 
payments and medical benefits to covered employees and, where 
applicable, survivors of such employees, of the Department of Energy 
(DOE), its predecessor agencies and certain of its vendors, contractors 
and subcontractors. The Act also provides for the payment of smaller 
lump-sum payments and medical benefits to individuals already found 
eligible for benefits under section 5 of the Radiation Exposure 
Compensation Act and, where applicable, their survivors. The Department 
of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) 
administers the adjudication of claims and payment of benefits under 
the EEOICPA, with the Department of Health and Human Services (HHS) 
calculating the amounts of radiation received by employees alleged to 
have sustained cancer as a result of such exposure and establishing 
guidelines to be followed in determining whether such cancers are at 
least as likely as not related to employment. The Department of Energy 
(DOE) and the Department of Justice (DOJ) are responsible for notifying 
potential claimants and submitting evidence necessary for DOL's 
adjudication of claims under the EEOICPA.

DATES: Effective Date: This interim final rule is effective July 24, 
2001.
Compliance Dates: Affected parties do not have to comply with the 
information collection requirements in Secs. 30.100, 30.101, 30.102, 
30.111, 30.112, 30.206, 30.207, 30.213, 30.214, 30.216, 30.217, 30.401, 
30.415, 30.416, 30.417, 30.420, 30.421, 30.505, 30.617, 30.700, 30.701 
and 30.702 until the Department publishes in the Federal Register the 
control numbers assigned by the Office of Management and Budget (OMB) 
to these information collection requirements. Publication of the 
control numbers notifies the public that OMB has approved these 
information collection requirements under the Paperwork Reduction Act 
of 1995.
Comments: The Department invites written comments on the interim 
final rule from interested parties. Comments on the interim final rule 
must be received by August 23, 2001. Written comments on collections of 
information subject to the Paperwork Reduction Act must be received by 
July 24, 2001.

ADDRESSES: Submit written comments on the interim final rule to Shelby 
S. Hallmark, Acting Director, Office of Workers' Compensation Programs, 
Employment Standards Administration, U.S. Department of Labor, Room S-
3524, 200 Constitution Avenue, N.W., Washington, DC 20210.
Written comments on the collection of information requirements 
should be sent to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, Attention: Desk Officer for Employment 
Standards Administration, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Shelby S. Hallmark, Acting Director, 
Office of Workers' Compensation Programs, Employment Standards 
Administration, U.S. Department of Labor, Room S-3524, 200 Constitution 
Avenue, N.W., Washington, D.C. 20210, Telephone: 202-693-0036 (this is 
not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. What Is the Energy Employees Occupational Illness Compensation 
Program?

The Energy Employees Occupational Illness Compensation Program Act 
(EEOICPA), Public Law 106-398, 114 Stat. 1654, 1654A-1231 (October 30, 
2000), was enacted as Title XXXVI of the Floyd D. Spence National 
Defense Authorization Act for Fiscal Year 2001. The EEOICPA established 
a compensation program to provide a lump sum payment of $150,000 and 
medical benefits as compensation to covered employees suffering from 
designated illnesses incurred as a result of their exposure to 
radiation, beryllium, or silica while in the performance of duty for 
DOE and certain of its vendors, contractors and subcontractors. This 
legislation also provided for payment of compensation to certain 
survivors of these covered employees, as well as for payment of a 
smaller lump sum ($50,000) to individuals (who would also receive 
medical benefits), or their survivor(s), who were determined to be 
eligible for compensation under section 5 of the Radiation Exposure 
Compensation Act (42 U.S.C. 2210 note).
The EEOICPA further instructed the President to designate one or 
more Federal agencies or officials to carry out the compensation 
program. Pursuant to this statutory provision, the President issued 
Executive Order 13179 (``Providing Compensation to America's Nuclear 
Weapons Workers'') of December 7, 2000 (65 FR 77487) which assigned 
primary responsibility for administering the compensation program to 
DOL. This executive order also directed HHS to, among other things, 
develop guidelines to assess the likelihood that an employee with 
cancer developed that cancer in the performance of duty at a DOE 
facility or atomic weapons facility, to establish methods for 
calculating radiation dose estimates for individuals applying for 
benefits under this program for whom there are inadequate records of 
radiation exposure, and perform such calculations. The President's 
order instructed DOE to provide DOL and HHS all relevant information to 
which it may have access, and to assist in the development of claims 
under the EEOICPA and state workers' compensation programs. Finally, 
the executive order directed DOJ to identify and notify RECA 
beneficiaries of their possible entitlement to benefits under the 
EEOICPA and to assist DOL in the adjudication of those claims.

II. Issuance of Interim Final Rule

Section 3611(a) of the EEOICPA both establishes the Energy 
Employees Occupational Illness Compensation Program and provides that 
``[t]he President shall carry out the compensation program through one 
or more Federal agencies or officials, as designated by the 
President.'' Pursuant to this statutory provision, the President issued 
Executive Order 13179 section 2(a)(ii) of which directed the Secretary 
of Labor to ``promulgate regulations for the administration of the 
Program, except for functions assigned to other agencies pursuant to 
the Act or this order;'' no later than May 31, 2001. The Act further 
stipulates that its provisions for both lump-sum payments and medical 
benefits shall take effect ``on July 31, 2001, unless Congress 
otherwise provides in an Act enacted before that date.'' The Department 
believes that Congress's explicit mandate in the Act that the 
provisions for both lump-sum payments and medical benefits take effect 
on July 31, 2001 contemplates displacement of Administrative

[[Page 28949]]

Procedure Act (APA) notice and comment procedures and requires the 
publication of an Interim Final Rule 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, no pre-adoption procedures are 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). The EEOICPA was 
enacted to provide efficient, uniform and adequate compensation for 
radiation, beryllium, and silica related health conditions to the 
civilian men and women who, over the past 50 years, performed duties 
uniquely associated with the nuclear weapons production and testing 
programs of DOE and its predecessor agencies. The enactment of EEOICPA 
was, in part, the result of the failure of existing state workers' 
compensation programs to provide uniform and adequate compensation for 
these types of occupational illnesses. DOL cannot begin to accept and 
process claims under the 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 program to become 
effective by July 31, 2001: approval of the notice of proposed 
rulemaking by the Secretary and OMB; publication in the Federal 
Register; receipt of, consideration of, and response to the 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. Moreover, completion of these 
steps will further delay the implementation of the program. 
Accordingly, the Department believes that under 5 U.S.C. 553(b)(B), 
good cause exists for waiver of Notice of Proposed Rulemaking since 
issuance of proposed rules would be impracticable and contrary to the 
public interest.
While notice of proposed rulemaking is being waived, the Department 
is interested in comments and advice regarding changes that should be 
made to these interim rules. We will fully consider any comments on 
these rules that we receive on or before August 23, 2001, and will 
publish the Final Rule with any necessary changes.

III. What Are the Paperwork Requirements (Subject to the Paperwork 
Reduction Act) Imposed Under EEOICPA and the Department's 
Regulations, and How Are Comments Submitted?

The new collections of information contained in this rulemaking 
have been submitted for review to OMB in accordance with the Paperwork 
Reduction Act of 1995. No person is required to respond to a collection 
of information request unless the collection of information displays a 
valid OMB control number. The new information collection requirements 
are in Secs. 30.100, 30.101, 30.102, 30.111, 30.112, 30.206, 30.207, 
30.213, 30.214, 30.216, 30.217, 30.415, 30.416, 30.417, 30.505, 30.617 
and 30.702, and they relate to information required to be submitted by 
claimants, medical providers, and witnesses as part of the claims 
adjudication process, as well as to information required to be 
submitted by claimants in connection with the processing of bills. To 
implement all but one of these new collections, the Department is 
proposing to create eight new forms (see sections A through E and 
sections G through I below). One new collection will be implemented 
without any specific form (see section F below).
In addition, this rulemaking contains currently approved 
collections of information in Secs. 30.401, 30.420, 30.421, 30.700, 
30.701 and 30.702, which relate to information required to be submitted 
by claimants and medical providers in connection with the processing of 
bills (see OMB-1215-0055, OMB-1215-0176, and OMB-1215-0194). These 
collections (Forms OWCP-1500, UB-92 and 79-1A) will be revised to 
include EEOICPA respondents.

A. Employee's Claim: Form EE-1 (Secs. 30.100 and 30.102)

Summary: The claims adjudication process for employees begins with 
a requirement that they file a written claim for benefits with the 
Department on or after July 31, 2001. Employees do not need to use the 
``Claim For Benefits Under Energy Employees Occupational Illness 
Compensation Program Act'' (Form EE-1) to initiate this process since 
any written communication that requests benefits under the EEOICPA will 
be considered a claim. They will, however, be required to submit a Form 
EE-1 to insure that OWCP has the basic factual information necessary to 
begin adjudicating the claim. In Form EE-1, the employee is requested 
to provide information with respect to his or her identity, contact 
information, the type of illness being claimed (with date of 
diagnosis), the location or type of employment, whether he or she is a 
member of the Special Exposure Cohort, and whether he or she received 
an award letter under the Radiation Exposure Compensation Act (42 
U.S.C. 2210 note) or filed a lawsuit regarding the claimed illness. 
OWCP may also require employees to provide factual information in 
support of any responses made on Form EE-1. All employees will be 
required to swear or affirm that the information provided on the Form 
EE-1 is true.
Need: Pursuant to the EEOICPA, a claim for benefits is necessary to 
both initiate the claims adjudication process and to establish a 
commencement date for any possible entitlement to medical benefits.
Respondents and proposed frequency of response: It is estimated 
that 43,140 employees annually will file one Form EE-1.
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-1 is estimated to take an average of 
15 minutes per employee for a total annual burden of 10,785 hours.

B. Survivor's Claim: Form EE-2 (Secs. 30.101 and 30.102)

Summary: The claims adjudication process for survivors begins with 
a requirement that they file a written claim for survivor benefits with 
the Department on or after July 31, 2001. Survivors do not need to use 
the ``Claim For Survivors Benefits Under Energy Employees Occupational 
Illness Compensation Program Act'' (Form EE-2) to initiate this process 
since any written communication that requests benefits under the 
EEOICPA will be considered a claim. They will, however, be required to 
submit Form EE-2 to insure that OWCP has the basic factual information 
necessary to begin adjudicating the claim. In Form EE-2, the survivor 
is asked to provide information with respect to both his or her 
identity and the identity of the deceased employee, contact 
information, the type of illness being claimed (with date of 
diagnosis), the location or type of employment, whether the deceased 
employee was a member of the Special Exposure Cohort, and whether he or 
she (or the deceased employee) received an award letter under the 
Radiation Exposure Compensation Act (42 U.S.C. 2210 note) or filed a 
lawsuit regarding the claimed illness. OWCP may also require survivors 
to provide factual information

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in support of any responses made on Form EE-2. All survivors will be 
required to swear or affirm that the information provided on the Form 
EE-2 is true.
Need: Pursuant to the EEOICPA, a claim for survivor's benefits is 
necessary to initiate the claims adjudication process.
Respondents and proposed frequency of response: It is estimated 
that 28,760 survivors annually will file one Form EE-2.
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-2 is estimated to take an average of 
15 minutes per survivor for a total annual burden of 7,190 hours.

C. Employment History: Form EE-3 (Secs. 30.102, 30.111, 30.112, 30.206, 
30.213 and 30.216)

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. 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 the EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 68,584 employees and/or survivors 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 annual burden of 68,584 hours.

D. Employment History Affidavit: Form EE-4 (Secs. 30.102, 30.111, 
30.112, 30.206, 30.213 and 30.216)

Summary: As noted in section C above, 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. 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 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 the EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 17,146 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 annual burden of 8,573 hours.

E. Medical Requirements: Form EE-7 (Secs. 30.102, 30.207, 30.214, 
30.217, 30.415, 30.416 and 30.417)

Summary: Employees and/or survivors claiming benefits under the 
EEOICPA (except for those who have received an award under section 5 of 
the Radiation Exposure Compensation Act (42 U.S.C. 2210 note)) must 
also establish, among other things, that the employee sustained a 
compensable occupational illness. Form EE-7 has been devised to elicit 
the type of medical 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 evidence (prepared by medical 
providers) as necessary. Form EE-7 describes, in checklist format, both 
the general and specific requirements for medical evidence submitted in 
support of a claim for each of the occupational illnesses covered by 
the EEOICPA.
Need: Documentation of a covered occupational illness 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 68,584 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 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 
17,146 hours.

F. Supplemental Medical Evidence (Sec. 30.214)

Summary: Employees and/or survivors claiming that an injury, 
illness or disability was sustained as a consequence of a covered 
cancer must submit a narrative medical report from a medical provider 
which shows a causal relationship between the claimed injury, illness 
or disability and the covered cancer. A standardized form or format 
will not be used for the submission of this information, which will be 
collected on an as-needed basis.
Need: Documentation of a consequential injury is one of the 
elements that must be met to establish entitlement to benefits for such 
a condition under the EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 4,500 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 
1,125 hours.

G. Pre-payment Affidavit: Form EE/EN-15 (Secs. 30.505 and 30.617)

Summary: Once the claims adjudication process has been completed 
and a final decision finding coverage under the EEOICPA has been made, 
the claimant must still provide information to determine if he or she 
is entitled to receive a lump-sum payment, and if so, the amount of 
such lump-sum payment. In Form EE/EN-15, the claimant is requested to 
provide

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information about any tort suits they may have filed against a 
beryllium vendor or atomic weapons employer, and whether they have been 
convicted on fraud charges in connection with the EEOICPA or another 
federal or state workers' compensation law. Form EE/EN-15 also requests 
information on third party settlements, other eligible survivors and 
corrections. All respondents will be required to certify that the 
information provided on Form EE/EN-15 is true.
Need: Documentation of entitlement to a lump-sum payment and the 
level of any such payment is required under the EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 10,926 employees and/or survivors annually will file one Form EE/
EN-15.
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/EN-15 is estimated to take an average 
of 40 minutes per response for a total annual burden of 7,284 hours.

H. Acceptance of Payment: Form EE/EN-20 (Secs. 30.505 and 30.617)

Summary: After Form EE/EN-15 is returned (and a determination that 
the claimant is entitled to a lump-sum payment is made and the amount 
of such entitlement has been calculated), the claimant will be informed 
of the award payable under the EEOICPA and that his or her acceptance 
of such payment will be in full satisfaction of all claims arising out 
of an occupational illness covered by the EEOICPA. The ``Acceptance of 
Payment'' (Form EE/EN-20) has been devised for this purpose, and 
requests that the claimant indicate whether he or she accepts or 
rejects the offered payment within 60 days.
Need: Documentation of a claimant's acceptance of a lump-sum 
payment is necessary to establish the full satisfaction of all claims 
arising out of an occupational illness covered by the EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 10,926 employees and/or survivors annually will file one Form EE/
EN-20.
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/EN-20 is estimated to take an average 
of 5 minutes per response for a total annual burden of 911 hours.

I. Medical Reimbursement: Form EE-915 (Sec. 30.702)

Summary: Once a claim has been accepted, the Department will pay 
medical benefits retroactive to the date the claim was filed. The 
``Claim For Medical Reimbursement Under Energy Employees Occupational 
Illness Compensation Program Act'' (Form EE-915) has been devised to 
enable claimants to seek reimbursement for out-of-pocket expenses 
pertaining to the medical treatment, prescription medication, and 
medical supplies obtained due to an accepted occupational illness or 
consequential injury.
Need: Documentation of a claimant's out-of-pocket expenses is 
necessary to establish the amount that is payable as medical benefits 
for an occupational illness or consequential injury covered by the 
EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 5,095 respondents annually will file four Forms EE-915.
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-915 is estimated to take an average of 
15 minutes per response for a total annual burden of 5,096 hours.
Total public burden: The above information collections have a total 
public burden hour estimate of 126,693. Using the current National 
minimum wage of $5.15 per hour, the total annual public cost estimate 
for all new information collections is estimated to be $652,469.00. 
There are no recordkeeping or collection costs associated with the 
information collected on the EE-1, EE-2, EE-3, EE-4, EE/EN-15, EE/EN-20 
or EE-915. Because the medical information requested by the other two 
information collections 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-1 and 
EE-2 forms will involve postage and mailing costs; the remainder will 
be received directly by either DOL or DOE personnel. The EE-3 form 
always accompanies the EE-1 or EE-2, therefore no additional postage or 
mailing is required. An estimated annual total of 167,612 mailed 
responses at $0.34 (postage) + $0.03 (envelope) per response would be 
$62,016.44.
Request for comments: The public is invited to provide comments on 
the above-noted new information collection requirements 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 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 new collection of information, 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 24, 2001.

IV. What Matters Do the Regulations Address?

Congress, in enacting the EEOICPA, created a new Energy Employees 
Occupational Illness Compensation 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. These regulations 
describe the process that DOL will use so that these employees, and, 
when applicable, their survivors, will receive the benefits provided by 
the EEOICPA in the efficient and uniform manner intended by Congress. 
The following discussion describes the regulations that will appear as 
20 CFR parts 1 and 30.

20 CFR Part 1

This part is substantially the same as current part 1 (Secs. 1.1 
through 1.6), with the exception of the updated list of assigned 
functions contained in Sec. 1.2, and is reprinted in full for the ease 
of the reader. This updated list of functions reflects that the 
Assistant Secretary for Employment Standards

[[Page 28952]]

has assigned the Department's responsibilities under the EEOICPA and 
E.O. 13179 to the Deputy Assistant Secretary for Workers' Compensation 
Programs.

20 CFR Part 30

Subpart A--General Provisions

This subpart briefly describes the types of benefits available 
under the EEOICPA and provides a summary of how the Department's 
regulations under the Act are organized. It also describes the effect 
of other general criminal and civil provisions on the EEOICPA claims 
process.

Introduction

Sections 30.1 and 30.2 briefly describe how the tasks involved in 
administering the EEOICPA have been assigned, both within the 
Department and among the Secretaries of Labor, Health and Human 
Services, and Energy, and the Attorney General, while Sec. 30.3 
summarizes how the regulations in this part are organized by subject 
area.

Definitions

This section of the regulation defines the principal terms used in 
this part. It includes terms specifically defined in the 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 used 
in the regulation, including, in particular, those addressed in the 
following paragraphs.
The Sec. 30.5(g) definition of benefit or compensation includes the 
money DOL pays to or on behalf of a claimant as well as any other 
amounts paid for such things as medical treatment, monitoring, 
examinations, services and supplies and the transportation and other 
expenses incurred in securing such medical treatment. This section also 
distinguishes the meaning of the term ``compensation'' as it is used in 
EEOICPA section 3628(a)(1)--the $150,000 lump sum payment--and as it is 
used in EEOICPA section 3630(a)--the $50,000 lump sum payment to 
covered employees or their survivor(s) under section 5 of the RECA.
EEOICPA section 3630(a) describes a covered uranium employee as 
``an individual who receives, or has received, $100,000 under section 5 
of the RECA for a claim made under that Act.'' Because either an 
eligible employee or that eligible employee's survivor(s) may receive 
$100,000 under section 5 of the RECA, interpreting the word 
``individual'' in the section 3630(a) definition of ``covered uranium 
employee'' as either an employee or that employee's survivor(s) results 
in having to award $50,000 to the survivor of a deceased survivor. This 
would create a result that does not appear to have been intended by 
Congress and is inconsistent with the definitions of covered beryllium 
employees, covered employees with cancer, and covered employees with 
chronic silicosis under the EEOICPA. These definitions of covered 
employee include only persons who are or were employees, they do not 
include survivors as covered employees. Such an overly literal 
definition of ``covered uranium employee'' in the EEOICPA is 
inconsistent with the purpose of the EEOICPA ``to provide for timely, 
uniform, and adequate compensation of covered employees and, where 
applicable, survivors of such employees suffering from illnesses 
incurred by such employees in the performance of duty * * *.'' (see 
EEOICPA section 3611(b)). Furthermore, the conference report on the 
EEOICPA also notes that section 3630 establishes ``an additional 
entitlement for certain uranium miners, millers, and transporters, or 
the survivor of any such employee if the employee is deceased, who 
receives, or has received, payment of a claim under the Radiation 
Exposure Compensation Act (42 U.S.C. 2210 note).'' H.R. Conf. Rep. No. 
96-945, at 982 (2000). To avoid compensation of survivors of survivors, 
the Department has defined a ``covered uranium employee'' as an 
employee who has been determined to be entitled to compensation under 
section 5 of the Radiation Exposure Compensation Act, as amended, (42 
U.S.C. 2210 note) for a claim made under that Act.
The EEOICPA does not define disability but uses that term in 
section 3628(a) as a qualification for entitlement to the $150,000 lump 
sum payment. While other federally administered workers' compensation 
programs define ``disability'' to require a claimant to establish a 
loss of wage earning capacity or permanent impairment, it is clear from 
Congress' description of this compensation program in EEOICPA section 
3611(b), that an employee need only establish, to OWCP's satisfaction, 
that he or she has or has had one of the covered occupational 
illnesses, without establishing a loss of wage earning capacity or 
permanent impairment as a result of that illness. The definition of 
``disability'' in Sec. 30.5(w) reflects this Congressional intent.
The EEOICPA defines survivor as any individual or individuals 
entitled to compensation under the survivor provisions of the Federal 
Employees' Compensation Act (FECA), 5 U.S.C. 8133. Therefore, the 
definition of survivor in Sec. 30.5(dd) identifies those individuals 
who would qualify as survivors of a deceased covered employee under 
section 8133 of the FECA. A significant feature of the FECA survivor 
provision is the limitation that the list of eligible individuals does 
not include a child over the age of 18 unless that child is a 
``student'' as defined in section 8101(17) of the FECA, or is incapable 
of self-support. Similarly, non-dependent parents, siblings, 
grandparents and grandchildren do not qualify as survivors.

Information in Program Records

Sections 30.10 and 30.11 describe the Privacy Act system of records 
entitled DOL/ESA-49 that covers all OWCP records relating to claims 
filed under the EEOICPA. This system of records is both maintained by 
and under the control of OWCP. The records contained in DOL/ESA-49 are 
considered confidential and may not be disclosed except as provided by 
the Privacy Act of 1974. Section 30.12 describes the process that must 
be used to either obtain copies of or amend records contained in DOL/
ESA-49.

Rights and Penalties

Section 30.16 makes reference to some of the criminal and civil 
proceedings that can result from filing a fraudulent or false claim or 
statement with OWCP in connection with a claim under the EEOICPA, and 
notes that the Department of Justice has the sole authority to initiate 
criminal proceedings. Section 30.17 sets out the Act's statutory 
requirement for permanent forfeiture of all benefits whenever a 
claimant defrauds the federal government in connection with a claim 
under the EEOICPA or any other federal or state workers' compensation 
law.

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

This subpart 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. 
It also explains the special procedures used in the early adjudication 
of claims for cancer that do not involve members of the Special 
Exposure Cohort, which includes HHS's responsibility for calculating a 
reconstructed dose.

Claims for Occupational Illness--Employee or Survivor's Actions

Section 30.100 describes how an employee can file (or withdraw) a

[[Page 28953]]

written claim for benefits under the Act, and explains the three 
alternate methods that can be used to ``file'' such a claim for the 
purpose of establishing a commencement date for any possible 
entitlement to medical benefits should the claim ultimately be approved 
by OWCP. Since an employee's possible entitlement to any medical 
benefits under the Act commences on the date the written claim is 
filed, OWCP will choose the earliest filing date from among the three 
alternate methods--the date the claim is mailed to OWCP (as determined 
by postmark), the date the claim is actually received by OWCP, or the 
date the claim is actually received by DOE. Section 30.101 addresses 
these same topics in the context of claims of survivors.
Although use of the claim forms that appear in the list of forms 
contained in Sec. 30.102 is not required to file a claim (a simple 
letter that contains words of claim is legally sufficient), claims 
should be filed using OWCP's official claim forms to ensure that all 
information necessary for the early stages of the claims adjudication 
process has been submitted. Form EE-1 (for an employee claiming for his 
or her own occupational illness) and Form EE-2 (for a survivor of such 
a deceased employee) are provided for these purposes.

Claims for Occupational Illness--Actions of DOE

In light of the broad range of employment situations that could 
lead to an exposure that might result in an occupational illness 
compensable under the Act, the Department has decided to seek the type 
of basic factual information that an employer would otherwise provide 
to OWCP from DOE. Therefore, Sec. 30.105 indicates that DOE will have 
the responsibility to either concur or disagree (or indicate that it 
lacks sufficient information to either concur or disagree) with the 
employment history submitted by the employee in support of his or her 
claim. DOE will also be responsible for helping employees establish, 
through alternate methods, the necessary factual basis to support their 
employment histories when the usual documentary evidence is not 
available. Section 30.106 addresses these same DOE responsibilities in 
the context of claims of survivors.

Evidence and Burden of Proof

Section 30.110 lists the four classes of individuals who are 
entitled to compensation under sections 3623, 3627 and 3630 of the 
EEOICPA, and Sec. 30.111 describes the burden of proof on these 
individuals to establish their entitlement to benefits under the Act. 
While every claimant must establish eligibility by a preponderance of 
the evidence, section 30.111(c) permits the use of written affidavits 
or declarations as evidence of employment history or survivor 
relationship where the claimant attests that actual records on these 
matters do not exist. DOL further assists claimants in the development 
of their claims by notifying the claimant of any deficiency and 
providing an opportunity for correction of the deficiency (section 
30.111(b)).

Special Procedures for Certain Cancer Claims

E.O. 13179 assigns the ``primary responsibility for administering'' 
the compensation program to the Secretary of Labor. However, a portion 
of the adjudication process of claims for cancer that do not involve 
employees who are members of the Special Exposure Cohort (or a survivor 
of such an employee) is assigned to HHS. Accordingly, Sec. 30.115 
indicates that if OWCP determines that such an employee (or a survivor 
of such an employee) has established that he or she contracted cancer 
after beginning covered employment, OWCP will refer the claim to HHS 
for dose reconstruction. This package will include, among other things, 
any employment history compiled by OWCP. It will not, however, 
constitute a recommended or final decision by OWCP on the claim.
After completing such further development of the employment history 
as it may deem necessary, HHS will reconstruct the radiation dose and 
notify the claimant directly of its findings. At the same time, HHS 
will also inform OWCP of its findings regarding the radiation dose, at 
which point OWCP will resume adjudication of the claim (based on the 
reconstructed dose calculated by HHS) and determine whether the 
claimant has met the eligibility criteria set forth in subpart C.

Subpart C--Eligibility Criteria

Eligibility Criteria for Claims Relating to Covered Beryllium 
Illness

Section 30.205 describes the criteria, set forth in sections 
3621(7) and 3621(8) of the EEOICPA, that a claimant must satisfy to 
qualify for compensation for a covered beryllium illness--that he or 
she was (or is a survivor of) a ``covered beryllium employee'' who has 
a covered beryllium illness. Consistent with other federally 
administered workers' compensation laws, this section also provides 
compensation (medical benefits only) for any injury, illness, 
impairment, or disability sustained as a consequence of a covered 
beryllium illness.
To establish the status as a ``covered beryllium employee,'' a 
claimant may submit any trustworthy contemporaneous record that 
establishes proof of employment or presence at a covered facility 
during a period when beryllium dust, particles or vapor was present 
(Sec. 30.206(a)). Section 30.206(b) describes the type of records that 
may be considered as evidence of employment or presence at a covered 
facility. Section 30.207 describes the type of medical evidence 
required to establish beryllium sensitivity and chronic beryllium 
disease as set forth in sections 3621(8) and 3621(13) of the EEOICPA, 
and explains the claimant's burden in establishing a consequential 
injury or illness.

Eligibility Criteria for Claims Relating to Cancer

Section 30.210 describes the two types of employees with cancer for 
whom the EEOICPA provides compensation. To be eligible for compensation 
for cancer, an employee either must be: (1) A member of the Special 
Exposure Cohort (SEC) who was a DOE employee, a DOE contractor 
employee, or an atomic weapons employee who contracted a specified 
cancer after beginning such employment; or (2) a DOE employee, a DOE 
contractor employee, or an atomic weapons employee who contracted 
cancer (that has been determined, pursuant to guidelines promulgated by 
HHS, ``to be at least as likely as not related to such employment''), 
after beginning such employment. Consistent with other federally 
administered workers' compensation laws, this section also provides 
compensation (medical benefits only) for any injury, illness, 
impairment, or disability sustained as a consequence of a covered 
cancer.
Section 30.213(a) describes the criteria set out in section 
3621(14) of the EEOICPA for establishing eligibility as a member of the 
SEC. To satisfy the EEOICPA requirement that an eligible employee must 
have worked at a designated gaseous diffusion plant for a number of 
workdays aggregating at least 250 workdays before February 1, 1992, 
Sec. 30.213(b) allows the claimant to aggregate the days of service at 
more than one gaseous diffusion plant. Section 30.213(c) describes the 
type of evidence a claimant may submit to establish his employment with 
a covered employer under this section. A written medical report that 
includes a

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diagnosis and the date of diagnosis is sufficient to establish either a 
specified cancer, in the case of SEC members, or cancer for other 
covered employees, under Sec. 30.214(a). Section 30.214(b) describes 
the medical evidence required to establish an injury or disease that 
occurs as a consequence of a covered cancer.

Eligibility Criteria for Chronic Silicosis

Section 30.215 sets forth the EEOICPA section 3627 requirements for 
entitlement to compensation for chronic silicosis. To be eligible for 
benefits, the employee must establish employment with the DOE or with a 
DOE contractor and presence for a number of work days aggregating at 
least 250 work days during the mining of tunnels at a DOE facility 
located in Nevada or Alaska, which were used for atomic weapon tests or 
experiments. Section 30.216(c) allows the claimant to aggregate the 
days of service at more than one qualifying site. The employee must 
have been diagnosed with chronic silicosis, supported by medical 
evidence set forth in Sec. 30.217.

Eligibility of Certain Uranium Employees

Section 30.220 describes how beneficiaries of $100,000 under 
section 5 of the RECA establish entitlement to an additional $50,000 
and medical benefits provided by section 3630 of the EEOICPA. Since 
RECA claimants may receive payment under RECA in the form of a promise 
to pay at a future date, the Department has interpreted the requirement 
in section 3630 of the Act that a claimant ``receives or has received 
$100,000'' under RECA to include claimants who receive or have received 
a promise of subsequent payment.

Subpart D--Adjudicatory Process

This subpart describes the adjudicatory process OWCP will follow 
when it issues decisions on claims under the Act. It contains 
information about filing objections following a recommended decision 
and requesting a hearing before OWCP's Final Adjudication Branch (FAB), 
and describes the manner in which the FAB will issue decisions on 
claims after a hearing, a review of the written record, or on a summary 
basis. This subpart also indicates when decisions of the FAB will 
become final, and describes the process whereby OWCP may exercise its 
discretion to modify a final decision, either on its own motion or upon 
the motion of a claimant.

Recommended Decisions on Claims

Sections 30.305 through 30.307 contain a basic description of a 
``recommended'' decision on a claim, which will contain both findings 
of fact and conclusions of law, as appropriate. These sections also 
describe the general process OWCP will use when it issues a recommended 
decision, and indicate to whom OWCP will send the recommended decision. 
It is important to recognize that a recommended decision does not 
constitute a final decision by OWCP on a claim; instead, it only 
represents an initial recommendation made by an OWCP claims examiner. 
Therefore, since a recommended decision will not be OWCP's final 
decision on a claim under the EEOICPA, a claimant may not seek review 
of such decision in federal court.

Hearings and Final Decisions on Claims

Section 30.310 indicates that when the district office issues a 
recommended decision on a claim, it will also forward the record of 
such claim to the FAB, whether the recommended decision was favorable 
or unfavorable to the claimant. Within 60 days of the date the district 
office issues the recommended decision (unless this period is extended 
by the FAB), the claimant must object to specific findings of fact and/
or conclusions of law contained in the recommended decision to trigger 
either a hearing (upon specific request) or a review of the written 
record by the FAB. In the absence of any specific objections, 
Sec. 30.311(a) provides that the FAB will summarily affirm the 
recommended decision without conducting any further review of such 
decision. The Department believes that bringing the claims adjudication 
process to an end when a claimant does not raise any specific 
objections is appropriate, even if the claimant asks for a hearing, 
since the expenditure of administrative resources needed to conduct 
further review of a claim under these circumstances will most likely 
serve no useful purpose given the non-adversarial nature of the claims 
adjudication process. Section 30.311(b) provides that the FAB will also 
summarily affirm the recommended decision, in whole or in part, if the 
claimant waives any objection to all or part of such decision.
If a claimant files specific objections to a recommended decision 
with the FAB, but does not request a hearing on his or her claim, 
Sec. 30.312 states that the FAB will consider the objections by means 
of a review of the written record of the claim. If the claimant only 
objects to a part of the recommended decision (for example, the 
claimant objects to OWCP's rejection of the claim with respect to one 
occupational disease, but does not object to OWCP's acceptance of the 
claim for a different occupational disease), this section notes that 
the FAB has the discretionary authority to issue a decision summarily 
affirming the uncontested part, if such action is appropriate. Section 
30.313 describes the process a FAB reviewer will follow when he or she 
conducts a written review of the record, which provides for the 
submission of additional evidence or argument from the claimant, or at 
the request of the FAB reviewer.
If the claimant files objections and requests a hearing within the 
60-day period referred to above, Sec. 30.314 sets out the general 
procedural framework that a FAB reviewer will follow through the 
completion of the informal hearing process. This section describes a 
FAB reviewer's wide discretion in matters of scheduling and in the 
conduct of the hearing itself. Consistent with the provision in 
Sec. 30.312 allowing partial decisions, Sec. 30.314 also provides that 
if the claimant only objects to a part of the recommended decision, a 
FAB reviewer has the discretionary authority to issue a decision that 
summarily affirms the uncontested part. Section 30.315 completes the 
description of the hearing process by indicating that a claimant may 
only postpone a scheduled hearing in certain limited circumstances, and 
if the hearing cannot be rescheduled in such a way as to prevent delay, 
a review of the written record will be conducted instead. It also 
indicates that a claimant may request a change to a review of the 
written record at any time after requesting a hearing, and that once 
such a change is made, no further opportunity for a hearing will be 
provided.
The varied processes by which the FAB issues decisions on claims 
(or parts of claims) are described in Sec. 30.316. Subsection (a) 
provides for summary affirmance (in whole or in part) of a recommended 
decision when no specified objections have been raised, subsection (b) 
provides for the issuance of a decision on a claim at the conclusion of 
either a hearing or a review of the written record, and subsection (c) 
provides for the automatic affirmance of any recommended decision that 
is pending either a hearing or a review of the written record at the 
FAB for more than one year. Subsection (d) indicates that decisions of 
the FAB issued pursuant to Sec. 30.316(a), (b) or (c) will become final 
upon expiration of 30 days from the date they are issued, unless the 
claimant files a timely request for reconsideration

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under Sec. 30.319, and subsection (e) indicates to whom the FAB will 
send its decision. Section 30.317 further provides that at any point in 
time prior to issuing a decision on a claim, the FAB may request that a 
claimant submit additional evidence or argument and may, in the 
exercise of its discretion, remand a claim to the district office for 
further development without issuing a decision under Sec. 30.316.
Finally, Sec. 30.319 sets out the process whereby a claimant may 
request reconsideration of a decision of the FAB before such decision 
becomes final, and notes that if the request is granted, the FAB will 
review the district office's recommended decision again and issue a new 
decision on the claim without holding a hearing. This section also 
points out that if the FAB denies the request for reconsideration, the 
decision at issue will become final on the date the request is denied. 
In Sec. 30.319(c), the Department describes the point at which a 
decision on a claim under the EEOICPA becomes final for purposes of 
seeking judicial review, which occurs when all administrative review 
opportunities have been exhausted.

Modification

In order to accommodate those rare instances when OWCP may wish to 
reopen a final decision of the FAB, Sec. 30.320 describes OWCP's 
discretionary authority to modify such a decision at any time on its 
own motion. This section also provides that a claimant can move for 
modification within one year of the date the FAB decision became final, 
provided that he or she can establish a mistake of fact in the final 
decision or changed circumstances. If OWCP determines that modification 
is warranted, this section notes that it may issue a new recommended 
decision modifying the prior final decision on a claim. It also notes 
that while any new recommended decision issued on modification will be 
subject to the adjudicatory process described in subpart D, the scope 
of review at the FAB will be limited to the merits of the new 
recommended decision; OWCP's discretionary determination to modify the 
prior final decision will not be reviewable. Subsection (c) completes 
the description of the adjudicatory process by noting that the time 
limitations in Sec. 30.320 will not prevent a claimant from filing 
another claim for a new occupational disease or consequential injury 
not already considered by OWCP, and that regardless of the number of 
claims OWCP accepts, no claimant can receive more than one award of 
monetary compensation under sections 3628(a)(1) or 3630(a) of the Act.

Subpart E--Medical and Related Benefits

This subpart contains a description of the medical benefits that 
are provided to employees under the EEOICPA, the general rules for 
obtaining medical care, and information regarding an employee's initial 
choice of physician. It also describes the manner in which OWCP may 
direct an employee to be examined by another physician of its choosing, 
and how OWCP resolves conflicts in the medical evidence that may arise 
as a result of such an examination. Finally, subpart E describes the 
general requirements for medical reports to be submitted to OWCP, and 
the process to be used by employees to seek reimbursement for medical 
expenses they have paid.

Medical Treatment and Related Issues

Section 30.400 reflects the basic entitlement to medical benefits 
contained in section 3629 of the Act, including the provision that an 
employee's entitlement to such benefits commences upon the date the 
claim is filed. This section also indicates that medical treatment that 
was provided to an employee who dies before the claim is accepted will 
be paid for if the claim is accepted, as long as such treatment was 
provided on or after the date the employee filed his or her claim. 
Section 30.400 indicates that any qualified medical provider may 
provide appropriate services, appliances and supplies.
Consistent with OWCP's definition of ``physician'' set out in 
subpart A, which is the same as the definition set for