Performance of Functions; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act, 33590-33639 [05-10936]

Agencies

• DEPARTMENT OF LABOR
• Office of Workers' Compensation Programs
• Workers' Compensation Programs Office

[Federal Register Volume 70, Number 109 (Wednesday, June 8, 2005)]
[Rules and Regulations]
[Pages 33590-33639]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-10936]



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Part II





Department of Labor





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Office of Workers' Compensation Programs



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20 CFR Parts 1 and 30



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

Federal Register / Vol. 70, No. 109 / Wednesday, June 8, 2005 / Rules 
and Regulations

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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Parts 1 and 30

RIN 1215-AB51


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

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

ACTION: Interim final rule; request for comments.

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

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

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

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

SUPPLEMENTARY INFORMATION: 

I. Background

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

[[Page 33591]]

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

II. Administrative Procedure Act Issues

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

III. Overview of Regulatory Changes

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

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20 CFR Part 1

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

20 CFR Part 30

Subpart A--General Provisions

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

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

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

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

Subpart C--Eligibility Criteria

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

[[Page 33594]]

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

Subpart D--Adjudicatory Process

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

Subpart E--Medical and Related Benefits

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

[[Page 33595]]

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

Subpart F--Survivors; Payments and Offsets; Overpayments

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

[[Page 33596]]

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

Subpart G--Special Provisions

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

Subpart H--Information for Medical Providers

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

Subpart I--Wage-Loss Determinations Under Part E

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

[[Page 33597]]

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

Determinations of Average Annual Wage and Percentages of Loss

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

[[Page 33598]]

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

Special Rules for Certain Survivor Claims Under Part E

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

Subpart J--Impairment Benefits Under Part E

    This new subpart sets forth the procedures that OWCP uses to 
determine if a covered Part E employee is entitled to compensation 
under Part E based on impairment that is the result of a covered 
illness. It includes provisions describing how OWCP determines the 
extent of an employee's impairment that is attributable to a covered 
illness, the submission of medical evidence of impairment, what OWCP 
considers to be a ratable permanent impairment in certain defined 
situations, and the potential eligibility of covered Part E employees 
for additional impairment benefits following an award of impairment 
benefits by OWCP.
General Provisions
    Section 30.900 describes the criteria, set forth in sections 7385s, 
7385s-2, 7385s-4 and 7385s-5 of EEOICPA, that an employee must satisfy 
to qualify for an impairment award under Part E: (1) That he or she is 
a covered Part E employee found to have contracted a covered illness 
through exposure to a toxic substance at a DOE facility or RECA section 
5 facility, as appropriate; and (2) that he or she has been found by 
OWCP to have an impairment that is the result of the accepted covered 
illness.
    Section 30.901 describes the general process that OWCP uses, based 
on section 7385s-2 of the Act, to determine if a covered Part E 
employee's claim for an alleged impairment attributable to a covered 
illness is compensable. Subsection (a) indicates that OWCP will 
consider medical reports from physicians that include opinions 
regarding the extent of whole person impairment of all organs and body 
functions compromised by a covered illness, and the extent of such 
impairment attributable to the employee's covered illness. Subsection 
(b) provides that OWCP will determine the employee's minimum impairment 
rating in accordance with the AMA's Guides, based on medical reports 
from physicians trained to perform these impairment evaluations, and 
subsection (c) of Sec.  30.901 notes that OWCP will specify criteria 
that physicians must meet to perform impairment evaluations. Those 
criteria, which will include certification by a relevant medical board 
and other objective factors necessary to qualify a physician to perform 
an impairment evaluation under Part E, will be available to claimants, 
physicians and members of the public on OWCP's website. Finally, 
subsection (d) of Sec.  30.901 provides that if one or more percentage 
points of the minimum impairment rating are found by OWCP to be the 
result of a covered illness, the employee is entitled to an award based 
on those percentage points. Section 30.902 describes the formula that 
OWCP uses to calculate impairment awards, from section 7385s-2(a)(1) of 
the Act.
Medical Evidence of Impairment
    There are two ways that OWCP can obtain an impairment evaluation of 
a covered Part E employee that is sufficient to permit OWCP to 
adjudicate impairment benefits. Section 30.905(a) indicates that OWCP 
can ask the employee to undergo an impairment evaluation performed by a 
physician who meets