[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]]

-----------------------------------------------------------------------

Part II





Department of Labor





-----------------------------------------------------------------------



Office of Workers' Compensation Programs



-----------------------------------------------------------------------



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]]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 <strong>filed</strong> 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 <strong>filed</strong> a
lawsuit regarding the claimed illness. OWCP may also require survivors
to provide factual information

[[Page 28950]]

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

[[Page 28951]]

information about any tort suits they may have <strong>filed</strong> 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 <strong>filed</strong>. 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
<strong>filed</strong> 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
<strong>filed</strong>, 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 <strong>filed</strong> 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

[[Page 28954]]

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

[[Page 28955]]

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 <strong>filed</strong>. 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 <strong>filed</strong> 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 forth in section
8101(2) of the FECA, Secs. 30.401 and 30.402 describe the special rules
that will apply to medical services provided by chiropractors and
clinical psychologists. Generally, chiropractors are limited to
providing treatment to correct a spinal subluxation, and a diagnosis of
spinal subluxation as demonstrated by x-ray to exist must appear in the
chiropractors report before payment of the bill will be considered.
Clinical psychologists cannot serve as physicians for conditions that
include a physical component unless they are authorized to do so under
the applicable state law.
    Section 30.403 indicates that the personal care services of a home
health aide, licensed practical nurse or similarly trained individual
will be paid for as a medical benefit, so long as such services are
medically necessary. In addition, Sec. 30.404 indicates that
transportation and other reasonable and necessary expenses needed to
obtain authorized medical treatment will be paid for as a medical
benefit.
    Since section 3629(b)(2) of the Act specifically provides employees
with the right to select an initial treating physician, Sec. 30.405
indicates that OWCP will provide them with an opportunity to designate
a treating physician when it accepts the claim. The physician so
selected can refer the employee to a specialist without first seeking
approval from OWCP, but in all other situations the employee must make
a written request to OWCP before he or she changes treating physicians.

Directed Medical Examinations

    On occasion, OWCP may need to have an employee examined by a
physician of its own choosing for a second opinion. Section 30.410
addresses this need (in a manner consistent with OWCP's practices under
section 8123 of the FECA) and indicates that an employee may not have
anyone else present at the examination, other than a physician paid by
him or her, unless OWCP decides that exceptional circumstances exist.
This section also indicates that where an actual examination is not
needed, OWCP may send the case file for a second opinion review.
    Also consistent with section 8123 of the FECA, Sec. 30.411
describes what OWCP will do once it receives the report from the second
opinion physician. OWCP will base its determination on entitlement on
the report that has greater probative value, unless there is a conflict
in the medical evidence between the second opinion physician and the
employee's physician. A conflict only occurs when two reports of
virtually equal weight and rationale reach opposing conclusions. When
this occurs, OWCP will appoint a third physician to make a referee
examination, and the report of this physician will be entitled to
special weight sufficient to resolve the conflict if it has sufficient
probative value. An employee may not have anyone else present at the
referee examination, unless OWCP decides that exceptional circumstances
exist, and OWCP may send the case file for review by a referee
physician if an actual examination is not needed.
    Section 30.412 indicates that the costs of the directed medical
examinations described in Secs. 30.410 and 30.411 will be paid for out
of the fund as medical benefits. In addition, OWCP will reimburse the
employee for necessary and reasonable expenses incident to such
directed medical examinations out of the fund.

[[Page 28956]]

Medical Reports

    Section 30.415 contains a general description of what a medical
report submitted to OWCP from an attending physician should contain,
and Sec. 30.416 indicates that Form EE-7 should be used as a guide in
the preparation of medical reports. For cases requiring hospital
treatment or prolonged care, Sec. 30.417 indicates that periodic
narrative reports from the attending physician are required, and that
OWCP may ask the physician to respond to questions regarding continuing
medical treatment for the accepted occupational illness.

Medical Bills

    Medical providers should submit medical bills directly for payment
out of the compensation fund. However, in those instances where an
employee pays a medical bill and claims for reimbursement out of the
fund, Sec. 30.420 refers the employee to the itemized bill procedures
described in Sec. 30.702, while Sec. 30.421 sets out the standard
industry practice of requiring submission of medical bills by the later
of the end of the calendar year after the year the expense was
incurred, or the end of the calendar year after the year OWCP accepted
the claim.
    Since the OWCP fee schedule sets maximum limits on amounts payable
for many medical services, Sec. 30.422 notes that an employee may be
only partially reimbursed for medical expenses because the amount he or
she paid exceeds the maximum allowable charge. When this happens, OWCP
will advise the employee of his or her responsibility to ask the
provider to refund the excess charge paid to the employee, or to credit
the employee's account. If the provider refuses to do so, OWCP may
authorize reasonable reimbursement to the employee after reviewing the
facts and circumstances involved.

Subpart F--Survivors; Payments and Offsets; Overpayments

Survivors

    Sections 30.500 through 30.502 address the identification of
persons entitled to receive monetary compensation based on their
relationship to a deceased covered employee under the Act. The class of
persons who may be a ``survivor'' under the EEOICPA is taken from
section 8133 of the FECA, as required by section 3621(18) of the
EEOICPA. Any reference to section 8133 of the FECA is solely for the
purpose of identifying the individuals who may be survivors under
EEOICPA. Section 8109 of the FECA provides the order of precedence and
proportion of monetary compensation to be paid to the eligible
surviving beneficiaries, if any, under sections 3628(e)(2) and
3630(e)(2) of the EEOICPA. These regulations specifically detail who
may be entitled to receive compensation based upon their survivor
status. It should be noted that widows, widowers and minor children are
the only persons who need not be dependent upon the deceased covered
employee to receive monetary compensation as a survivor. The remaining
persons, who may be survivors under section 8133 of FECA, must have
been ``dependent'' upon the deceased covered employee at his or her
time of death. The result of this provision is that adult children of
deceased covered employees, as well as other remaining family members,
such as ``non-dependent'' parents, siblings, grandparents or
grandchildren, will not be eligible to receive any monetary
compensation under this Act. Finally, OWCP will take all necessary
steps to determine the identity and correct amount of compensation to
be paid to each and every eligible surviving beneficiary.

Payments and Offsets

    Sections 30.505 through 30.507 address the rules for the payment of
monetary compensation to claimants under the EEOICPA. No vested right
exists to receive compensation under the EEOICPA, thus claimants must
be alive to receive the compensation for which they <strong>filed</strong> a claim. In
cases where the claimant is deceased, OWCP will pay the eligible
surviving beneficiaries or their legal guardian, if any. In making
payment on a claim OWCP will take all necessary and reasonable steps in
determining the entitlement and identity of the claimant and/or the
eligible surviving beneficiaries related to a claim for benefits, as
well as any offset required by section 3641 of the EEOICPA to such an
amount awarded. OWCP will attempt to ensure that the correct person
will receive payment in the correct amount by reserving the right to
conduct any investigation, including requiring any claimant or eligible
surviving beneficiary to provide or execute an affidavit, record or
document, or authorize the release of any information deemed necessary
for purposes of payment. No payment will be processed unless an
``Acceptance of Payment'' form is signed and returned by the
beneficiary. Furthermore, any failure by the claimant or eligible
surviving beneficiary to cooperate with an investigation or provide
information to OWCP may be deemed a rejection of the payment, unless
the claimant or eligible surviving beneficiary does not have the legal
authority to provide, release or authorize access to the requested
information or documents. Any rejected compensation payment, or shares
of compensation payment, will not be distributed to the remaining
eligible surviving beneficiaries, rather, the payment will be returned
to the Fund. With respect to the ``offset'' provisions within
Sec. 30.505, OWCP is requiring claimants and eligible surviving
beneficiaries who receive money awards or settlements based on injuries
suffered, for which they have also <strong>filed</strong> a claim under the EEOICPA, to
declare such amounts received for purposes of subtracting that amount
from the total award to be paid on the EEOICPA claim. For purposes of
OWCP's offset calculations, such claims as state workers' compensation
benefits, life insurance or health insurance contracts will not be
included in the analysis. The provisions in this section concerning
multiple payments are set forth to provide notice to claimants and
survivors that a covered employee's injuries due to any of the
occupational illnesses recognized under the EEOICPA give rise to only
one lump-sum payment of monetary compensation per covered employee.
However, a claimant who is a covered employee and who also qualifies as
an eligible surviving beneficiary may receive more than one payment;
similarly, an eligible surviving beneficiary may receive payment or a
portion of a payment each time he or she qualifies as an eligible
surviving beneficiary.
    Finally, the provisions in Secs. 30.505 and 30.506 regarding
``beryllium sensitivity'' make clear that no lump-sum monetary
compensation will be paid for such illness, rather ``monitoring'' will
be the form of compensation afforded to such covered employees in
accordance with section 3628(a)(2) of the Act. Monitoring shall consist
of regular medical examinations and diagnostic testing to determine if
the covered employee has developed ``established chronic beryllium
disease.'' Once the individual develops and has diagnosed the
established chronic beryllium disease, he or she may then submit
evidence of such diagnosis to OWCP and request appropriate benefits
under the EEOICPA.

Overpayments

    Sections 30.510 through 30.513 detail the process of how OWCP will
identify and pursue collection of overpayments of compensation for
purposes of the EEOICPA. These sections have been written to highlight
and clarify OWCP's

[[Page 28957]]

process to identify, notify, resolve and collect any overpayments made
to EEOICPA beneficiaries. Specifically, OWCP will notify each recipient
of any compensation payment by including with each check a narrative
description indicating the reasons for payment. For those payments sent
via electronic funds transfer (EFT) clear notification of the date and
amount of payment will appear on the recipient's bank statement. When
OWCP initially identifies an overpayment it will notify the recipient
of its existence and attempt to clarify and resolve the dispute through
an informal process. Specifically, OWCP will notify the beneficiary of
the overpayment and allow the beneficiary 30 days to submit comments in
writing and documentation contesting the overpayment. Upon the end of
that 30-day period, OWCP will notify the beneficiary of its
determination of whether a debt is owed to OWCP. If this informal
process fails to resolve the dispute, OWCP will then advise the
recipient of its intentions to collect the overpayment using the
Department's debt collection procedures set forth in 29 CFR part 20.
Finally, if the Department's own procedures fail to procure the
repayment of the debt, such overpayment is subject to the provisions of
the Federal Claims Collection Act of 1996 (as amended) and the debt may
be referred to the Department of Justice, or a debt collection agency.

Subpart G--Special Provisions

    This subpart addresses some additional matters that can arise in
connection with a claim under the EEOICPA. It contains provisions
describing representation of claimants before OWCP and also describes
the subrogation rights the United States has upon payment of
compensation under the Act, as well as the statutory election of
remedies for claimants who file tort suits against beryllium vendors or
atomic weapons employers.

Representation

    Section 30.600 notes that while the claims process established by
this part is informal and non-adversarial, a claimant may appoint one
individual at a time to represent his or her interests before OWCP.
Such appointments must be in writing, and OWCP will only recognize one
individual at a time as the duly appointed representative for the
claimant. Section 30.601 sets out the legal restrictions on who may
serve as a representative, and when a federal employee can be appointed
to act as a claimant's representative. Finally, Sec. 30.602 indicates
that the claimant is solely responsible for paying any representative's
fee for services and costs associated with the representation; OWCP is
in no way liable for any portion of the representative's fee. EEOICPA
section 3648 limits the attorneys fees that can be charged a claimant
and provides a $5000 fine for exceeding those limits. Since DOJ is
responsible for deciding whether to seek the imposition of a fine, the
Department defers to DOJ's interpretation of the statutory limitation.

Third Party Liability

    Section 3642 of the Act provides that upon payment of compensation
to a claimant, the United States is subrogated to any right or claim
that the claimant may have on account of his or her injuries, for the
amount of such payment of compensation. Sections 30.605 through 30.611
describe the manner in which the United States will exercise this
statutory authority. These sections require claimants who have received
EEOICPA benefits to inform OWCP if they receive money or other property
as a result of a settlement or judgment related to their claims, and
provide advice regarding the method of valuing structured settlements
and the amount to which the United States is subrogated. These sections
also note that a settlement or judgment received as a result of
allegations of medical malpractice in treating an illness covered by
the EEOICPA is a recovery that must be reported to OWCP, while payments
to an employee or eligible surviving beneficiary as a result of an
insurance policy which the employee or eligible surviving beneficiary
has purchased is not. They also provide guidance on how the amount paid
on a single EEOICPA claim is attributed to different conditions for
purposes of calculating the amount to which the United States is
subrogated.

Election of Remedy Against Beryllium Vendors and Atomic Weapons
Employers

    Based on the explicit language of section 3645 of the EEOICPA,
Secs. 30.615 and 30.616 describe the severe limitations on the receipt
of compensation under the Act that arise when a claimant files a tort
suit against either a beryllium vendor or an atomic weapons employer.
Section 30.615 provides that if a claimant <strong>filed</strong> such a tort suit on or
prior to October 30, 2000, he or she will not be eligible to receive
compensation unless the suit is dismissed no later than December 31,
2003.
    Section 30.616 notes that if a claimant files such a tort suit
after October 30, 2000, he or she will not be eligible to receive
compensation unless the suit is dismissed no later than April 30, 2003,
or 30 months after the date the claimant first became aware that his or
her illness may be connected to the exposure covered by the EEOICPA,
whichever is later. If a claimant files such a tort suit after the
later of either April 30, 2003, or 30 months after the date the
claimant first became aware that his or her illness may be connected to
the exposure covered by the EEOICPA, he or she also will not be
entitled to any benefits under subtitle B of the EEOICPA. For both of
these provisions, ``the date the claimant first became aware'' will be
deemed to be the date he or she received either a reconstructed dose
from HHS, or a diagnosis of a covered beryllium illness, as applicable.
    Section 30.617 indicates that prior to authorizing any payment
under Sec. 30.505, OWCP will require the claimant or each surviving
beneficiary to execute and provide an affidavit showing whether he or
she complied with the filing and dismissal requirements of Secs. 30.615
or 30.616, if applicable. This section also authorizes OWCP to require
the submission of supporting evidence to confirm the particulars of any
affidavit provided thereunder.

Subpart H--Information for Medical Providers

    This subpart contains the information that will be needed by
medical providers of services and supplies to employees with approved
claims under the EEOICPA. It also contains the rules for the submission
of medical bills from providers and employees, and describes the fee
schedule OWCP will apply to charges for certain medical procedures and
services. The process described in this subpart is similar to that used
by medical providers submitting bills for services provided to
claimants under other federal programs, including the FECA program
administered by OWCP.

Medical Records and Bills

    Section 30.701 sets out the process medical providers must follow
when they submit bills for medical and surgical treatment, appliances
or supplies furnished to employees, except for treatment and supplies
provided by nursing homes. The provider must itemize the charges on the
standard Health Insurance Claim Form, HCFA 1500 or OWCP 1500 (for
professional charges), the UB-92 (for hospitals), or the Universal
Claim Form (for pharmacies), identify each service performed using the
Physician's Current Procedural Terminology (CPT) code, the

[[Page 28958]]

Health Care Financing Administration Common Procedure Coding System
(HCPCS) code, the National Drug Code (NDC), or the Revenue Center Code
(RCC), and state each diagnosed condition and furnish the corresponding
diagnostic code using the ``International Classification of Disease,
9th Edition, Clinical Modification'' (ICD-9-CM).
    Hospitals must submit charges for medical and surgical treatment or
supplies on the UB-92 and identify each outpatient radiology service,
outpatient pathology service and physical therapy service performed
using HCPCS/CPT codes with a brief narrative description. Other
outpatient hospital services for which HCPCS/CPT codes exist must also
be coded individually using the coding scheme noted in Sec. 30.701.
Services for which there are no HCPCS/CPT codes available may be
identified using the RCCs described in the current edition of the
``National Uniform Billing Data Elements Specifications.'' The hospital
must also furnish the diagnostic code using the ICD-9-CM, and if
outpatient hospital services include surgical and/or invasive
procedures, the hospital must code each procedure using the proper CPT/
HCPCS codes and furnishing the corresponding diagnostic codes using the
ICD-9-CM.
    Pharmacies must itemize charges for prescription medications,
appliances, or supplies on the Universal Claim Form. Bills for
prescription medications must include the NDC assigned to the product,
the generic or trade name of the drug provided, the prescription
number, the quantity provided, and the date the prescription was
filled. Nursing homes must itemize charges for appliances, supplies or
services on the provider's billhead stationery.
    Section 30.701(d) expressly indicates that by submitting a bill
and/or accepting payment, the provider signifies that the service for
which payment is sought was performed as described and was necessary.
The provider also agrees to comply with the provisions of subpart H
that address the rendering of treatment and/or the process for seeking
reimbursement for medical services, including the limitation imposed on
the amount to be paid for such services.
    Section 30.702 describes the similar process to be followed by
employees seeking reimbursement. If an employee has paid bills for
medical, surgical or other services, supplies or appliances due to an
accepted occupational illness, he or she should submit an itemized bill
on the HCFA 1500 or OWCP 1500. The provider of such service must list
each diagnosed condition and furnish the applicable ICD-9-CM code, and
identify each service performed using the applicable HCPCS/CPT code.
The bill must be accompanied by evidence that the employee paid the
provider for the service and a statement of the amount paid. Copies of
bills will not be accepted for reimbursement unless they bear the
original signature of the provider, with evidence of payment.
    An employee will be only partially reimbursed for a medical expense
if the amount he or she paid to a provider for the service exceeds the
maximum allowable charge set by OWCP's schedule. If this happens, OWCP
will advise the employee of the maximum allowable charge for the
service in question, and that it is his or her responsibility to ask
the provider to refund the amount paid that exceeds the maximum
allowable charge. If the provider does not comply with this request
within 60 days, OWCP will begin the process of excluding the provider
from further participation in the program. OWCP also has the discretion
to authorize reimbursement to the employee for the excess amount.
    The time limitation that will apply to payment of medical bills
submitted by both providers and employees is described in Sec. 30.703.
This section provides that no bill will be paid if it is submitted more
than one year beyond the end of the calendar year in which the expense
was incurred or the service or supply was provided, or more than one
year beyond the end of the calendar year in which the employee's claim
was first accepted as compensable by OWCP, whichever is later.

Medical Fee Schedule

    Sections 30.705 through 30.710 describe the cost containment
methods that will be used when payment is made for medical and other
health services furnished by physicians, hospitals and other providers.
These methods will not be applied to charges for non-medical services
provided in nursing homes, or to charges for appliances, supplies,
services or treatment furnished by medical facilities of the U.S.
Public Health Service or the Departments of the Army, Navy, Air Force
and Veterans Affairs.
    For professional medical services, OWCP will maintain a schedule of
maximum allowable fees for procedures performed in a given locality.
The fee schedule consists of an assignment of a value to procedures
identified by HCPCS/CPT code representing the relative skill, effort,
risk and time required to perform the procedure, an index based on a
relative value scale that considers skill, labor, overhead, malpractice
insurance and other related costs, and a monetary value assignment
(conversion factor) for one unit of value in each of the categories of
service. Generally, payment for a listed procedure will not exceed the
amount derived by multiplying the relative values for that procedure by
the geographic indices for services in that area and by the dollar
amount assigned to one unit in that category of service. However, where
the time, effort and skill required to perform a particular procedure
vary widely from one occasion to the next, OWCP may choose not to
assign a relative value to that procedure and instead make individual
determinations of the amount to be paid. OWCP may also set fees without
regard to schedule limits for specially authorized consultant
examinations, directed medical examinations, and other specially
authorized services.
    Payment for medicinal drugs prescribed by physicians may not exceed
the amount derived by multiplying the average wholesale price of the
medication by the quantity or amount provided, plus a dispensing fee.
All prescription medications identified by NDC will be assigned an
average wholesale price representing the product's nationally
recognized wholesale price as determined by surveys of manufacturers
and wholesalers. OWCP will establish the dispensing fee. Payment for
inpatient medical services will be made using condition-specific rates
based on the Prospective Payment System devised by HCFA (42 CFR parts
412, 413, 424, 485, and 489). Using this system, payment is derived by
multiplying the diagnosis-related group weight assigned to the hospital
discharge by the provider-specific factors.
    Sections 30.711 through 30.713 describe the process that will be
followed when a fee for a billed procedure or cost is reduced, and what
the medical provider can do following such a reduction. If the charge
submitted exceeds the maximum amount according to the schedule, payment
will be made in the amount allowed by the schedule for that service and
the provider will be notified that payment was reduced in accordance
with the schedule. The provider will have 30 days to request
reconsideration of the fee determination by the district office with
jurisdiction over the employee's claim. OWCP will only reevaluate the
paid amount if the request is accompanied by evidence showing that the
code incorrectly identified the procedure, that the presence of a
severe or concomitant medical condition made treatment

[[Page 28959]]

especially difficult, or that the provider possessed unusual
qualifications (board certification in a specialty is not sufficient
evidence of unusual qualifications). Within 30 days of receiving the
request, the district office will respond stating whether or not an
additional amount will be allowed. If the district office continues to
disallow the contested amount, the provider may apply to the Regional
Director of the region with jurisdiction over the district office
within 30 days. Within 60 days of an application, the Regional Director
will issue a decision whether or not an additional amount will be
allowed. A provider whose fee is partially paid may not request
reimbursement from the employee for additional amounts.

Exclusion of Providers

    Sections 30.715 through 30.726 describe the procedures OWCP will
use to exclude providers from payment under this subpart to protect the
EEOICPA program from fraud and abuse. After completing such inquiry he
or she deems appropriate, the Regional Director may initiate the
process of excluding the provider from participation in the EEOICPA
program. The Regional Director begins the process by sending the
provider a letter, by certified mail and with return receipt requested,
containing a statement of the grounds upon which exclusion will be
based, a summary of the information the Regional Director relied on in
reaching an initial decision that exclusion proceedings should begin,
an invitation to the provider to either resign voluntarily from
participation in the EEOICPA program or to request a decision on
exclusion, a notice of the provider's right to request a formal hearing
before an administrative law judge, and a notice that if the provider
fails to answer the letter of intent within 30 days, the Regional
Director may deem the allegations it contains to be true and may order
exclusion of the provider without conducting any further proceedings.
If the provider submits an answer, the Regional Director will issue a
written decision and will send a copy of the decision to the provider
by certified mail, return receipt requested. The decision will advise
the provider of his or her right to request, within 30 days of the date
of the decision, a formal hearing before an administrative law judge.
    Any request for a hearing must identify the issues to be addressed
and must include any request for a more definite statement by OWCP, any
request for the presentation of oral argument or evidence, and any
request for a certification of questions concerning professional
medical standards, medical ethics or medical regulation for an advisory
opinion from a competent recognized professional organization or
federal, state or local regulatory body. The Chief Administrative Law
Judge of the Department of Labor will assign the matter for an
expedited hearing, and the administrative law judge assigned to the
matter will consider the request for hearing, act on all requests
therein, and issue a Notice of Hearing and Hearing Schedule for the
conduct of the hearing. To the extent appropriate, proceedings before
the administrative law judge will be governed by 29 CFR part 18. At the
conclusion of the hearing, the administrative law judge will issue a
written decision and serve it on all parties to the proceeding, their
representatives and OWCP. An aggrieved party may, within 30 days of the
issuance of such decision, file a petition for discretionary review
with the Director for Energy Employees Occupational Illness
Compensation on one or more of the following grounds: a finding or
conclusion of material fact is not supported by substantial evidence; a
necessary legal conclusion is erroneous; the decision is contrary to
law or to the duly promulgated rules or decisions of OWCP; a
substantial question of law, policy, or discretion is involved; or a
prejudicial error of procedure was committed. If a petition is granted,
review will be limited to the questions raised by the petition, and a
petition not granted within 20 days after receipt of the petition is
deemed denied.
    After completing the exclusion process, OWCP will notify all
district offices, the HCFA, and all employees who are known to have had
treatment, services or supplies from the excluded provider within the
six-month period immediately preceding the order of exclusion. However,
OWCP will not refuse to reimburse an employee for otherwise
reimbursable medical treatment, services or supplies if they were
rendered in an emergency, or if the employee could not reasonably have
been expected to have known of the exclusion. When an employee is
notified that his or her attending physician has been excluded, OWCP
will provide the employee with an opportunity to select a new attending
physician. An excluded provider may apply for reinstatement one year
after the exclusion, unless the order provides for a shorter period. An
application for reinstatement must be addressed to the Director for
Energy Employees Occupational Illness Compensation, and contain a
statement of the basis for the application. The Director for Energy
Employees Occupational Illness Compensation will only order
reinstatement where reinstatement is clearly consistent with the goal
of this subpart to protect the EEOICPA program against fraud and abuse.
To satisfy this requirement the provider will have to provide
reasonable assurances that the basis for the exclusion will not be
repeated.

V. Statutory Authority

    Section 3611 of the Energy Employees Occupational Illness
Compensation Program Act provides the general statutory authority,
which Executive Order 13179 allocates to the Secretary, to prescribe
rules and regulations necessary for the administration and enforcement
of the Act. Sections 3629 and 3630 provide specific authority regarding
medical treatment and care, including determining the appropriateness
of charges. The Debt Collection Act of 1982, as amended, 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 Executive Order 12866, because it is economically
significant, as defined in section 3(f)(1) of E.O. 12866. The payment
of the benefits provided for by the EEOICPA, through the program
administered pursuant to this regulatory action will have an annual
effect on the economy of $100 million or more. However, the rule will
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 required by
section 3(f)(1) of E.O. 12866. The proposed 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 the EEOICPA.
    Based upon the factors and assumptions set forth below, DOL's
estimate of the aggregate cost of benefits and administrative expenses
of this regulatory action implementing the EEOICPA is, in millions of
dollars (estimates for FY2003, FY2004 and FY2005 are preliminary and
will be reviewed during the budget formulation process):

[[Page 28960]]



----------------------------------------------------------------------------------------------------------------
                                                                 FY2001    FY2002    FY2003    FY2004    FY2005
----------------------------------------------------------------------------------------------------------------
Admin.........................................................       $50      $136      $100       $55       $50
Benefits......................................................       358       597       477       253       222
----------------------------------------------------------------------------------------------------------------

    The Department's estimate of the benefits to be paid pursuant to
the EEOICPA and of its administrative costs of providing those benefits
is based on data collected from other Federal agencies, assumptions
regarding the incidence of cancer, beryllium disease and silicosis in
the covered population, life expectancy tables, and its experience in
estimating administrative and medical costs of workers' compensation
programs. Specifically, benefit estimates for cancer claims are based
on figures provided by DOE concerning the number of DOE/contractor
employees, known cancer incidence and survival rates in the general
population obtained from the National Cancer Institute. Based on the
number of claims likely to be accepted, the cost of lump-sum payments
to these claimants is relatively easily determined. These benefit
estimates further reflect contemplated medical costs of $1500 per year
for 90% of the covered claimants, while the remaining 10% incur
$125,000 medical costs for the year because they are undergoing
intensive in-hospital medical treatment.
    Benefits estimates for beryllium exposure are based on known
incidence rates, known numbers of claimants with beryllium disease,
exposed population figures (all of which were obtained from DOE), and
medical costs of $3000 per year for beryllium sensitivity, $4000 per
year for mild chronic beryllium disease, and $9000 per year for more
severe chronic beryllium disease. Benefit estimates for silicosis are
based upon figures obtained from DOE concerning the number of exposed
employees and the expected incidence of silicosis, and medical costs of
$4000 per year. Benefit estimates for the claims based upon receipt of
an award by uranium employees pursuant to Sec. 5 of the Radiation
Exposure Compensation Act are based on figures for the number of claims
provided by DOJ, and $4000 per year in medical costs.
    Because the statute provides benefits for covered workers and their
survivors who were exposed to radiation, beryllium and silica during a
period of almost 60 years, an assumption was made that DOL would
receive thousands of claims in the initial few years after the
effective date of the statute, and that the number of claims would
decrease substantially after the first few years. Administrative cost
estimates were developed based upon DOL's experience in administering
other workers' compensation programs, using calculations of the number
of incoming claims and forecasting the necessary full-time equivalents
and other resources necessary to efficiently administer the program.
    No more extensive economic impact analysis is necessary because the
regulatory action only addresses the transfer of funds from the federal
government to individuals who qualify under the 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 regulation 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 the statutory terms, those choices have no
significant impact on the cost of this regulatory action. Such policy
choices may affect who is entitled to receive benefits (as in the case
of potential survivors), but will not have a significant impact on the
number of eligible recipients 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 rule prior to its
effective date. The report will state that the Department 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 interim final rule will have ``no
significant economic impact upon a substantial number of small
entities'' within the meaning of the RFA. The provisions of this rule
applying cost control measures to payments for medical expenses are the
only ones that may have a monetary effect on small businesses. That
effect will not be significant for a substantial number of those
businesses, however, for no single business will bill a significant
amount to OWCP for EEOICPA-related services, and the effect on those
bills which are submitted, while a worthwhile savings for the
Government in the aggregate, will be not be significant for individual
businesses affected.
    The cost containment 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 are explained in the text of the preamble to this
interim final rule, which essentially adopts payment systems that are
commonplace in the industry. Their adoption by OWCP for use in
connection with its administration of the EEOICPA program will
therefore result in efficiencies for the Government and providers. The
Government will benefit because OWCP did not develop new cost
containment measures, 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 will not be readily distinguishable
from the Medicare process. Similarly, pharmacies are used to billing
through clearing houses and having their charges subject to limits by

[[Page 28961]]

private insurers. By adopting the uniform billing statement and a
familiar cost control methodology, OWCP has kept close to 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 SBA standards, since
most hospitals providing services for EEOICPA-covered conditions will
have annual receipts that exceed the set maximum.
    The implementation of these cost containment 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 containment 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 a covered
illness and require medical treatment on or after July 31, 2001 (out of
the projected total of 23,201 claims the Department estimates it will
accept over the next five years, only about 14,000 of these will
involve payment for medical treatment), 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 ultimate costs of the program are eventually
charged through appropriations.
    The Assistant Secretary for Employment Standards has certified to
the Chief Counsel for Advocacy of the Small Business Administration
that this rule will not have a significant impact on a substantial
number of small entities. The factual basis for this certification has
been provided above. Accordingly, no regulatory impact analysis is
required.

X. Executive Order 12988 (Civil Justice)

    This regulation has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform and will not unduly burden
the Federal court system. While the EEOICPA does not provide any
specific procedures claimants must follow in order to seek review of
decisions on their claims, substantial numbers of claimants will likely
seek review of adverse decisions in the United States district courts
pursuant to the Administrative Procedure Act. This regulation should
minimize the burden placed upon the courts by litigation seeking to
challenge decisions under EEOICPA by providing claimants an opportunity
to seek administrative review of adverse decisions and by providing a
clear legal standard for affected conduct. It has been reviewed
carefully to eliminate drafting errors and ambiguities.

XI. Executive Order 13132 (Federalism)

    The Department has reviewed this rule in accordance with Executive
Order 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 Executive Order 13045, OWCP has evaluated the
environmental health and safety effects of this rule on children. The
agency has determined that the final rule will have no effect on
children.

XIII. Submission to Congress and the General Accounting Office

    In accordance with 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
final rule prior to the effective date set forth at the outset of this
notice. The report will note that this rule constitutes a ``major
rule'' as defined by 5 U.S.C. 804(2).

XIV. 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, Claims, Kidney
Diseases, Leukemia, Lung Diseases, Miners, Radioactive Materials, Tort
claims, Underground mining, Uranium, Workers' Compensation.

Text of the Rule

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

Subchapter A--Organization and Procedures

    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, 8149 (Reorganization Plan No. 6
of 1950, 15 FR 3174, 64 Stat. 1263); 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 Deputy
Assistant Secretary for Workers' Compensation Programs who, under the
general supervision of the Assistant Secretary, administers the
programs assigned to that Office by the Assistant Secretary.

[[Page 28962]]

Sec. 1.2  What functions are assigned to OWCP?

    The Assistant Secretary has delegated authority and assigned
responsibility to the Deputy Assistant Secretary for Workers'
Compensation Programs 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.
    (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, Title XXXVI of the Floyd D. Spence National Defense Authorization
Act for Fiscal Year 2001, Pub. L. 106-398 (114 Stat. 1654, 1654A-1231),
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 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.


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, 64 Stat. 1263) 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, 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 (OWCP), was established in
lieu of the Bureau of Employees' Compensation (39 FR 34722).

    2. Subc