Civil Division; Radiation Exposure Compensation Act: Allowance for Costs and Expenses; Combination of Work Histories, 63196-63198 [E8-25230]
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63196
Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Notices
DEPARTMENT OF JUSTICE
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Notice of Lodging of Consent Decree
Under the Comprehensive
Environmental Response,
Compensation and Liability Act
Under 28 CFR 50.7, notice is hereby
given that on October 15, 2008, a
proposed consent decree was lodged in
United States v. MidAmerican Energy
Co. and Iowa-Illinois Manor, LLC, Civil
Action No. 08–416, in the United States
District Court for the Southern District
of Iowa.
The United States sought, pursuant to
Sections 106 and 107 of the
Comprehensive Environmental
Response, Compensation and Liability
Act (‘‘CERCLA’’), 42 U.S.C. 9606 &
9607, to recover costs incurred in
response to releases of hazardous
substances at the Iowa City Former
Manufactured Gas Plant Superfund Site
in Iowa City, Iowa (‘‘the Site’’), and to
require the defendants, MidAmerican
and Iowa-Illinois Manor, to perform
EPA’s selected remedy at the Site.
Under the terms of the proposed
consent decree, MidAmerican and IowaIllinois Manor will perform the remedy
for the Site as required in the proposed
consent decree and pay $429,300.64 to
the Superfund in payment of the United
States’ unreimbursed response costs. In
return, the United States will grant
MidAmerican and Iowa-Illinois Manor a
covenant not to sue under CERCLA with
respect to the Site.
The Department of Justice will receive
for a period of thirty (30) days from the
date of this publication comments
relating to the proposed consent decree.
Comments should be addressed to the
Assistant Attorney General,
Environment and Natural Resources
Division, P.O. Box 7611, U.S.
Department of Justice, Washington, DC
20044–7611, and should refer to the
proposed consent decree with
defendants MidAmerican and the Iowa
Manor in United States v. MidAmerican
Energy Company and Iowa-Illinois
Manor, LLC, D.J. Ref. 90–11–3–09180.
Public comments may be submitted by
e-mail to the following e-mail address:
pubcomment-ees.enrd@usdoj.gov.
The proposed consent decree may be
examined at the Office of the United
States Attorney, 110 East Court Avenue,
Des Moines, IA 50309. During the
public comment period, the Consent
Decree may be examined on the
following Department of Justice Web
site: https://www.usdoj.gov/enrd/
Consent_Decrees.html. A copy may be
obtained upon request from the Consent
Decree Library, P.O. Box 7611, U.S.
Department of Justice, Washington, DC
VerDate Aug<31>2005
14:58 Oct 22, 2008
Jkt 217001
20044–7611 or by faxing a request to
Tonia Fleetwood, fax no. (202) 514–
0097, phone confirmation number (202)
514–1547. In requesting a copy please
refer to the referenced case and enclose
a check in the amount of $20.75 (25
cents per page reproduction costs),
payable to the U.S. Treasury.
Robert E. Maher, Jr.,
Assistant Section Chief, Environmental
Enforcement Section, Environment and
Natural Resources Division.
[FR Doc. E8–25236 Filed 10–22–08; 8:45 am]
BILLING CODE 4410–15–P
DEPARTMENT OF JUSTICE
[CIV Docket No. 109]
Civil Division; Radiation Exposure
Compensation Act: Allowance for
Costs and Expenses; Combination of
Work Histories
Civil Division, Department of
Justice.
ACTION: Notice.
AGENCY:
SUMMARY: The Department of Justice
(‘‘the Department’’) is publishing this
Notice to inform the public of two
matters related to the adjudication of
claims filed under the Radiation
Exposure Compensation Act (‘‘RECA’’
or ‘‘the Act’’). First, in light of the Tenth
Circuit Court decision in Hackwell v.
United States, 491 F.3d 1229 (10th Cir.
2007), the Department will no longer
enforce its regulation concerning
attorney’s fees whereby attorneys are
prohibited from receiving
reimbursement for expenses and costs
above the statutory fee limits specified
in the Act. The Notice further explains
that the Department will not limit
attorneys from receiving reimbursement
for such expenses and costs from their
clients, even when a claim is
unsuccessful. Finally, the Department
intends to initiate a rulemaking to strike
the existing regulation at § 79.74(b) and
revise the language, consistent with the
Court’s decision and this policy
statement.
Second, the Department has an
ongoing policy of combining uranium
industry work histories, consistent with
the plain language of the Act. By statute,
to be eligible for compensation as a
result of exposure to radiation due to
employment in the uranium production
industry, a claimant must demonstrate
that he or she was, for at least one year,
employed in a uranium mine, employed
in a uranium mill, or employed in the
transportation of uranium ore or
vanadium-uranium ore. This Notice
articulates the Department’s policy that,
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Fmt 4703
Sfmt 4703
assuming all other eligibility criteria are
satisfied, claimants may satisfy this oneyear statutory requirement by
combining different periods of
employment in uranium mining,
uranium milling, and ore transporting.
DATES: This notice is effective on
October 23, 2008.
FOR FURTHER INFORMATION CONTACT:
Gerard W. Fischer (Assistant Director),
202–616–4090 or Dianne S. Spellberg
(Senior Counsel), 202–616–4129,
Constitutional and Specialized Tort
Litigation Section, Torts Branch, Civil
Division.
SUPPLEMENTARY INFORMATION:
Background
On October 5, 1990, Congress passed
the Radiation Exposure Compensation
Act. See also Claims Under the
Radiation Exposure Compensation Act,
28 CFR 79 (2006). The Act offers an
apology and monetary compensation to
individuals (or their survivors) who
have contracted certain cancers and
other serious diseases following
exposure to radiation released during
above-ground atmospheric nuclear
weapons tests or following their
employment in the uranium production
industry during specified periods. On
July 10, 2000, the RECA Amendments of
2000 were enacted, providing expanded
coverage to individuals who developed
one of the compensable diseases in the
Act, adding two new claimant categories
(uranium millers and ore transporters),
and lowering the amount of attorney’s
fees from 10% of the lump sum
compensation award to 2% of the award
in connection with the filing of an
initial claim.
This unique program was designed as
an alternative to litigation in that the
statutory criteria do not require
claimants to establish causation. Rather,
if the claimant can satisfy the
requirements outlined in the statute,
which include demonstrating that he or
she contracted a compensable disease
after working or residing in a designated
location for a specific period of time, he
or she qualifies for compensation.
Congress charged the Attorney General
with responsibility for adjudicating
claims under the Act. The Attorney
General delegated this function to the
Constitutional and Specialized Tort
Litigation Section of the Torts Branch of
the Civil Division of the United States
Department of Justice.
I. Attorney’s Fees and Costs
On July 10, 2000, Congress amended
RECA by lowering the permissible fee
limitation for attorneys from 10% to 2%
of the compensation award, in
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Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Notices
connection with the filing of an initial
claim. Pursuant to the law, claimants
who were previously denied
compensation may re-file their claim up
to three times. In cases where a claim
has been re-filed, Congress directed that
attorneys may receive 10% of the
compensation award. Specifically,
section 9 of RECA, titled ‘‘Attorney
Fees,’’ provides:
(a) General Rule. Notwithstanding any
contract, the representative of an
individual may not receive, for services
rendered in connection with the claim
of an individual under this Act, more
than that percentage specified in
subsection (b) of a payment made under
this Act on such claim.
(b) Applicable Percentage Limitations.
The percentage referred to in subsection
(a) is—
(1) 2 percent for the filing of an initial
claim; and
(2) 10 percent with respect to—
(A) any claim with respect to which
a representative has made a contract for
services before the date of the enactment
of the Radiation Exposure
Compensation Act Amendments of
2000; or
(B) a resubmission of a denied claim.
(c) Penalty. Any such representative
who violates this section shall be fined
not more than $5,000.
Source: 42 U.S.C. 2210 note (2006),
Sec. 9 (emphasis added).
In its implementation of the
amendments, the Department
determined that costs and expenses,
which primarily involved obtaining
medical tests and purchasing and
transmitting copies of documents
required for RECA claims, were
included within the meaning of
‘‘services rendered in connection with
the claim of an individual under this
Act.’’ Accordingly, the Department
promulgated regulations consistent with
this interpretation of the statutory
language.
On March 23, 2004, the Department
published a final rulemaking to
implement the ‘‘2000 Amendments.’’
See 28 CFR 79 (2006). The regulation at
§ 79.74(b) states:
(b) Fees.
(1) Notwithstanding any contract, the
attorney of a claimant or beneficiary,
along with any assistants or experts
retained by the attorney on behalf of the
claimant or beneficiary, may not receive
from a claimant or beneficiary any fee
for services rendered, including costs
incurred, in connection with an
unsuccessful claim.
(2) Notwithstanding any contract and
except as provided in paragraph (b)(3) of
this section, the attorney of a claimant
or beneficiary, along with any assistants
VerDate Aug<31>2005
14:58 Oct 22, 2008
Jkt 217001
or experts retained by the attorney on
behalf of the claimant or beneficiary,
may receive from a claimant or
beneficiary no more than 2% of the total
award for all services rendered,
including costs incurred, in connection
with a successful claim.
(3)(i) If an attorney entered into a
contract with the claimant or
beneficiary for services before July 10,
2000, with respect to a particular claim,
then that attorney may receive up to
10% of the total award for services
rendered, including costs incurred, in
connection with a successful claim.
(ii) If an attorney resubmits a
previously denied claim, then that
attorney may receive up to 10% of the
total award to the claimant or
beneficiary for services rendered,
including costs incurred, in connection
with that subsequently successful claim.
Resubmission of a previously denied
claim includes only those claims that
were previously denied and refiled
under the Act.
(4) Any violation of paragraph (b) of
this section shall result in a fine of not
more than $5,000.
Id. (emphasis added).
The Department, in adopting a
regulation that included costs and
expenses within the interpretation of
the fee limitation for attorneys, sought
to comply with the congressional intent
in amending RECA as a whole.
The Hackwell Litigation
On April 21, 2004, the plaintiff
alleged that her co-plaintiff, a law firm,
had refused to represent her because of
the Department’s regulation, 28 CFR
79.74(b), that limits attorney
compensation for representation of
claimants seeking to file a claim under
RECA. The plaintiffs challenged the
regulation as contrary to the RECA
statute, an invalid preemption of state
law, and a violation of the Fifth and
Tenth Amendments. The district court
dismissed the suit for failure to state a
claim, holding that the regulation was a
‘‘reasonable interpretation’’ of the
statute and that the Department ‘‘did not
exceed its statutory authority in
implementing Congress’s compensation
limitation.’’ Hackwell, et al v. United
States, et al., Civil Action No. 04–cv–
00827–EWN (D. Colo. Sept. 28, 2005).
On appeal, the Tenth Circuit held that
the plain meaning of ‘‘services
rendered’’ revealed Congress’s
unambiguous intent to exclude ‘‘costs
incurred’’ from the attorney fee
limitation and invalidated 28 CFR
79.74(b) as ‘‘contrary to the RECA’s
plain language.’’ Hackwell, 491 F.3d at
1241. The case was remanded to the
district court for further proceedings.
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63197
On remand, plaintiffs sought an
injunction against enforcement of the
regulation, which defendants opposed.
In its July 23, 2008 remand decision, the
district court granted the injunction and
directed that attorneys may recover
expenses and costs from their clients
even in regard to claims under the Act
that are unsuccessful.
Statement of Policy
In light of the decision in Hackwell,
the Department will not enforce its
regulatory provision, 28 CFR 79.74(b),
prohibiting attorneys from receiving
reimbursement for expenses and costs
from their clients in connection with
claims filed under the Radiation
Exposure Compensation Act, in
addition to the statutory attorney’s fee.
Moreover, attorneys may collect
expenses and costs regardless of
whether a claim is approved or denied.
Finally, the Department intends to
initiate a rulemaking to strike the
existing regulation at 28 CFR 79.74(b)
and revise the language, consistent with
the Court’s decision in Hackwell and
this policy statement.
II. Combination of Employment for
Uranium Worker Claimants
The Department has been requested to
publish its longstanding policy
regarding the combination of different
types of employment—mining, milling,
and ore transporting—to satisfy the
Act’s statutory one-year duration of
employment requirement.
The Act provides compensation to
individuals exposed to radiation
released during above-ground
atmospheric nuclear weapons tests or to
individuals exposed to radiation as a
result of their employment in the
uranium production industry. With
respect to individuals employed in the
uranium production industry, the Act
specifically provides compensation for:
(1) Individuals either exposed to 40 or
more working level months of radiation
while employed in a uranium mine or
employed for at least one year in a
uranium mine (‘‘miners’’); (2)
individuals employed for at least one
year in a uranium mill (‘‘millers’’); or (3)
individuals employed for at least one
year in the transport of uranium ore or
vanadium-uranium ore from such a
mine or mill (‘‘ore transporters’’).
To be eligible for compensation under
the Act as a miner, miller, or ore
transporter, the claimant must have
been employed in that position at any
time during the period January 1, 1942
to December 31, 1971. Additionally, the
claimant must have been employed as a
miner, miller, or ore transporter in
Colorado, New Mexico, Arizona,
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Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Notices
Wyoming, South Dakota, Washington,
Utah, Idaho, North Dakota, Oregon, or
Texas. Finally, all three categories of
uranium workers must have been
diagnosed with a compensable disease.
For all three categories of uranium
workers (miners, millers, and ore
transporters), the Act specifies the
following six compensable diseases:
Primary cancer of the lung, fibrosis of
the lung, pulmonary fibrosis, cor
pulmonale related to fibrosis of the
lung, silicosis, and pneumoconiosis. In
addition to those compensable diseases
applicable to all three categories of
uranium workers, the Act specifies the
following two additional compensable
diseases for claimants who were
employed as millers and ore
transporters (but not as miners): Primary
renal cancer and chronic renal disease
including nephritis and kidney tubal
tissue injury.
dwashington3 on PRODPC61 with NOTICES
Statement of Policy
14:58 Oct 22, 2008
Dated: October 14, 2008.
Gregory G. Katsas,
Assistant Attorney General, Civil Division.
[FR Doc. E8–25230 Filed 10–22–08; 8:45 am]
BILLING CODE 4410–12–P
DEPARTMENT OF LABOR
Office of the Secretary
Submission for OMB Review:
Comment Request
October 10, 2008.
The issue has been raised whether
claimants can combine periods of
employment as a miner, miller, and ore
transporter. In order to be eligible for
compensation, the Act requires
claimants to have been employed for
one year as a miner, miller, or ore
transporter. In some instances, a
claimant may have worked in separate
positions as a miner, miller, or ore
transporter for less than one year, but
the claimant’s total, cumulative period
of employment in these positions
exceeds one year. The question is
whether the Act’s eligibility criteria may
be satisfied by such a combination of
periods of employment.
The Department is publishing this
Notice to articulate its policy that
claimants can combine periods of
employment as miners, millers, and ore
transporters to meet the one-year
requirement. For all three categories of
uranium workers (mining, milling, and
ore transporting), the Act specifies six
common diseases: Primary cancer of the
lung, fibrosis of the lung, pulmonary
fibrosis, cor pulmonale related to
fibrosis of the lung, silicosis, and
pneumoconiosis. Therefore, in cases
involving those six illnesses, the Act’s
exposure criteria can be satisfied by
combining periods of employment that
include mining, milling, and ore
transporting. For millers and ore
transporters (but not miners), the Act
specifies two additional compensable
diseases: Primary renal cancer and
chronic renal disease including
nephritis and kidney tubal tissue injury.
In cases involving those two illnesses,
the Act’s exposure criteria can be
satisfied by combining periods of
VerDate Aug<31>2005
employment that include only milling
and ore transporting.
This Notice is intended to inform the
public of the Department’s longstanding
policy regarding the calculation of the
referenced employment periods. In
addition, the Department will continue
to announce this policy at outreach
events and in communications with
claimants, counsel, and support groups.
Jkt 217001
The Department of Labor (DOL)
hereby announces the submission of the
following public information collection
requests (ICRs) to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act of 1995
(Pub. L. 104–13, 44 U.S.C. chapter 35).
A copy of each ICR, with applicable
supporting documentation; including
among other things a description of the
likely respondents, proposed frequency
of response, and estimated total burden
may be obtained from the RegInfo.gov
Web site at https://www.reginfo.gov/
public/do/PRAMain or by contacting
Darrin King on 202–693–4129 (this is
not a toll-free number) / e-mail:
DOL_PRA_PUBLIC@dol.gov.
Interested parties are encouraged to
send comments to the Office of
Information and Regulatory Affairs,
Attn: OMB Desk Officer for the
Occupational Safety and Health
Administration (OSHA), Office of
Management and Budget, Room 10235,
Washington, DC 20503, Telephone:
202–395–7316 / Fax: 202–395–6974
(these are not toll-free numbers), E-mail:
OIRA_submission@omb.eop.gov within
30 days from the date of this publication
in the Federal Register. In order to
ensure the appropriate consideration,
comments should reference the OMB
Control Number (see below).
The OMB is particularly interested in
comments which:
• Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
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• Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
• Enhance the quality, utility, and
clarity of the information to be
collected; and
• Minimize the burden of the
collection 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.
Agency: Occupational Safety and
Health Administration.
Type of Review: Extension without
change of a previously approved
collection.
Title of Collection: Vinyl Chloride
Standard (29 CFR 1910.1017).
OMB Control Number: 1218–0010.
Affected Public: Business or other forprofits.
Estimated Number of Respondents:
32.
Estimated Total Annual Burden
Hours: 712.
Estimated Total Annual Costs Burden:
$48,928.
Description: The purpose of the
Department’s Vinyl Chloride Standard
at 29 CFR 1910.1017 and the
information collection requirements
contained therein is to provide
protection for employees from the
adverse effects associated with
occupational exposure to vinyl chloride.
Employers must monitor employee
exposure, reduce employee exposure to
within permissible exposure limits, and
provide medical examinations and other
information to employees exposed to
vinyl chloride. For additional
information, see the related 60-day
preclearance notice published in the
Federal Register at 73 FR 39050 on July
8, 2008. PRA documentation prepared
in association with the preclearance
notice is available on https://
www.regulations.gov under docket
number OSHA 2008–0021.
Agency: Occupational Safety and
Health Administration.
Type of Review: Extension without
change of a previously approved
collection.
Title of Collection: Cotton Dust
(29 CFR 1910.1043).
OMB Control Number: 1218–0061.
Affected Public: Business or other forprofits.
Estimated Number of Respondents:
384.
Estimated Total Annual Burden
Hours: 35,742.
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]]>Agencies
[Federal Register Volume 73, Number 206 (Thursday, October 23, 2008)]
[Notices]
[Pages 63196-63198]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25230]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
[CIV Docket No. 109]
Civil Division; Radiation Exposure Compensation Act: Allowance
for Costs and Expenses; Combination of Work Histories
AGENCY: Civil Division, Department of Justice.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Department of Justice (``the Department'') is publishing
this Notice to inform the public of two matters related to the
adjudication of claims filed under the Radiation Exposure Compensation
Act (``RECA'' or ``the Act''). First, in light of the Tenth Circuit
Court decision in Hackwell v. United States, 491 F.3d 1229 (10th Cir.
2007), the Department will no longer enforce its regulation concerning
attorney's fees whereby attorneys are prohibited from receiving
reimbursement for expenses and costs above the statutory fee limits
specified in the Act. The Notice further explains that the Department
will not limit attorneys from receiving reimbursement for such expenses
and costs from their clients, even when a claim is unsuccessful.
Finally, the Department intends to initiate a rulemaking to strike the
existing regulation at Sec. 79.74(b) and revise the language,
consistent with the Court's decision and this policy statement.
Second, the Department has an ongoing policy of combining uranium
industry work histories, consistent with the plain language of the Act.
By statute, to be eligible for compensation as a result of exposure to
radiation due to employment in the uranium production industry, a
claimant must demonstrate that he or she was, for at least one year,
employed in a uranium mine, employed in a uranium mill, or employed in
the transportation of uranium ore or vanadium-uranium ore. This Notice
articulates the Department's policy that, assuming all other
eligibility criteria are satisfied, claimants may satisfy this one-year
statutory requirement by combining different periods of employment in
uranium mining, uranium milling, and ore transporting.
DATES: This notice is effective on October 23, 2008.
FOR FURTHER INFORMATION CONTACT: Gerard W. Fischer (Assistant
Director), 202-616-4090 or Dianne S. Spellberg (Senior Counsel), 202-
616-4129, Constitutional and Specialized Tort Litigation Section, Torts
Branch, Civil Division.
SUPPLEMENTARY INFORMATION:
Background
On October 5, 1990, Congress passed the Radiation Exposure
Compensation Act. See also Claims Under the Radiation Exposure
Compensation Act, 28 CFR 79 (2006). The Act offers an apology and
monetary compensation to individuals (or their survivors) who have
contracted certain cancers and other serious diseases following
exposure to radiation released during above-ground atmospheric nuclear
weapons tests or following their employment in the uranium production
industry during specified periods. On July 10, 2000, the RECA
Amendments of 2000 were enacted, providing expanded coverage to
individuals who developed one of the compensable diseases in the Act,
adding two new claimant categories (uranium millers and ore
transporters), and lowering the amount of attorney's fees from 10% of
the lump sum compensation award to 2% of the award in connection with
the filing of an initial claim.
This unique program was designed as an alternative to litigation in
that the statutory criteria do not require claimants to establish
causation. Rather, if the claimant can satisfy the requirements
outlined in the statute, which include demonstrating that he or she
contracted a compensable disease after working or residing in a
designated location for a specific period of time, he or she qualifies
for compensation. Congress charged the Attorney General with
responsibility for adjudicating claims under the Act. The Attorney
General delegated this function to the Constitutional and Specialized
Tort Litigation Section of the Torts Branch of the Civil Division of
the United States Department of Justice.
I. Attorney's Fees and Costs
On July 10, 2000, Congress amended RECA by lowering the permissible
fee limitation for attorneys from 10% to 2% of the compensation award,
in
[[Page 63197]]
connection with the filing of an initial claim. Pursuant to the law,
claimants who were previously denied compensation may re-file their
claim up to three times. In cases where a claim has been re-filed,
Congress directed that attorneys may receive 10% of the compensation
award. Specifically, section 9 of RECA, titled ``Attorney Fees,''
provides:
(a) General Rule. Notwithstanding any contract, the representative
of an individual may not receive, for services rendered in connection
with the claim of an individual under this Act, more than that
percentage specified in subsection (b) of a payment made under this Act
on such claim.
(b) Applicable Percentage Limitations. The percentage referred to
in subsection (a) is--
(1) 2 percent for the filing of an initial claim; and
(2) 10 percent with respect to--
(A) any claim with respect to which a representative has made a
contract for services before the date of the enactment of the Radiation
Exposure Compensation Act Amendments of 2000; or
(B) a resubmission of a denied claim.
(c) Penalty. Any such representative who violates this section
shall be fined not more than $5,000.
Source: 42 U.S.C. 2210 note (2006), Sec. 9 (emphasis added).
In its implementation of the amendments, the Department determined
that costs and expenses, which primarily involved obtaining medical
tests and purchasing and transmitting copies of documents required for
RECA claims, were included within the meaning of ``services rendered in
connection with the claim of an individual under this Act.''
Accordingly, the Department promulgated regulations consistent with
this interpretation of the statutory language.
On March 23, 2004, the Department published a final rulemaking to
implement the ``2000 Amendments.'' See 28 CFR 79 (2006). The regulation
at Sec. 79.74(b) states:
(b) Fees.
(1) Notwithstanding any contract, the attorney of a claimant or
beneficiary, along with any assistants or experts retained by the
attorney on behalf of the claimant or beneficiary, may not receive from
a claimant or beneficiary any fee for services rendered, including
costs incurred, in connection with an unsuccessful claim.
(2) Notwithstanding any contract and except as provided in
paragraph (b)(3) of this section, the attorney of a claimant or
beneficiary, along with any assistants or experts retained by the
attorney on behalf of the claimant or beneficiary, may receive from a
claimant or beneficiary no more than 2% of the total award for all
services rendered, including costs incurred, in connection with a
successful claim.
(3)(i) If an attorney entered into a contract with the claimant or
beneficiary for services before July 10, 2000, with respect to a
particular claim, then that attorney may receive up to 10% of the total
award for services rendered, including costs incurred, in connection
with a successful claim.
(ii) If an attorney resubmits a previously denied claim, then that
attorney may receive up to 10% of the total award to the claimant or
beneficiary for services rendered, including costs incurred, in
connection with that subsequently successful claim. Resubmission of a
previously denied claim includes only those claims that were previously
denied and refiled under the Act.
(4) Any violation of paragraph (b) of this section shall result in
a fine of not more than $5,000.
Id. (emphasis added).
The Department, in adopting a regulation that included costs and
expenses within the interpretation of the fee limitation for attorneys,
sought to comply with the congressional intent in amending RECA as a
whole.
The Hackwell Litigation
On April 21, 2004, the plaintiff alleged that her co-plaintiff, a
law firm, had refused to represent her because of the Department's
regulation, 28 CFR 79.74(b), that limits attorney compensation for
representation of claimants seeking to file a claim under RECA. The
plaintiffs challenged the regulation as contrary to the RECA statute,
an invalid preemption of state law, and a violation of the Fifth and
Tenth Amendments. The district court dismissed the suit for failure to
state a claim, holding that the regulation was a ``reasonable
interpretation'' of the statute and that the Department ``did not
exceed its statutory authority in implementing Congress's compensation
limitation.'' Hackwell, et al v. United States, et al., Civil Action
No. 04-cv-00827-EWN (D. Colo. Sept. 28, 2005).
On appeal, the Tenth Circuit held that the plain meaning of
``services rendered'' revealed Congress's unambiguous intent to exclude
``costs incurred'' from the attorney fee limitation and invalidated 28
CFR 79.74(b) as ``contrary to the RECA's plain language.'' Hackwell,
491 F.3d at 1241. The case was remanded to the district court for
further proceedings. On remand, plaintiffs sought an injunction against
enforcement of the regulation, which defendants opposed. In its July
23, 2008 remand decision, the district court granted the injunction and
directed that attorneys may recover expenses and costs from their
clients even in regard to claims under the Act that are unsuccessful.
Statement of Policy
In light of the decision in Hackwell, the Department will not
enforce its regulatory provision, 28 CFR 79.74(b), prohibiting
attorneys from receiving reimbursement for expenses and costs from
their clients in connection with claims filed under the Radiation
Exposure Compensation Act, in addition to the statutory attorney's fee.
Moreover, attorneys may collect expenses and costs regardless of
whether a claim is approved or denied. Finally, the Department intends
to initiate a rulemaking to strike the existing regulation at 28 CFR
79.74(b) and revise the language, consistent with the Court's decision
in Hackwell and this policy statement.
II. Combination of Employment for Uranium Worker Claimants
The Department has been requested to publish its longstanding
policy regarding the combination of different types of employment--
mining, milling, and ore transporting--to satisfy the Act's statutory
one-year duration of employment requirement.
The Act provides compensation to individuals exposed to radiation
released during above-ground atmospheric nuclear weapons tests or to
individuals exposed to radiation as a result of their employment in the
uranium production industry. With respect to individuals employed in
the uranium production industry, the Act specifically provides
compensation for: (1) Individuals either exposed to 40 or more working
level months of radiation while employed in a uranium mine or employed
for at least one year in a uranium mine (``miners''); (2) individuals
employed for at least one year in a uranium mill (``millers''); or (3)
individuals employed for at least one year in the transport of uranium
ore or vanadium-uranium ore from such a mine or mill (``ore
transporters'').
To be eligible for compensation under the Act as a miner, miller,
or ore transporter, the claimant must have been employed in that
position at any time during the period January 1, 1942 to December 31,
1971. Additionally, the claimant must have been employed as a miner,
miller, or ore transporter in Colorado, New Mexico, Arizona,
[[Page 63198]]
Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon,
or Texas. Finally, all three categories of uranium workers must have
been diagnosed with a compensable disease. For all three categories of
uranium workers (miners, millers, and ore transporters), the Act
specifies the following six compensable diseases: Primary cancer of the
lung, fibrosis of the lung, pulmonary fibrosis, cor pulmonale related
to fibrosis of the lung, silicosis, and pneumoconiosis. In addition to
those compensable diseases applicable to all three categories of
uranium workers, the Act specifies the following two additional
compensable diseases for claimants who were employed as millers and ore
transporters (but not as miners): Primary renal cancer and chronic
renal disease including nephritis and kidney tubal tissue injury.
Statement of Policy
The issue has been raised whether claimants can combine periods of
employment as a miner, miller, and ore transporter. In order to be
eligible for compensation, the Act requires claimants to have been
employed for one year as a miner, miller, or ore transporter. In some
instances, a claimant may have worked in separate positions as a miner,
miller, or ore transporter for less than one year, but the claimant's
total, cumulative period of employment in these positions exceeds one
year. The question is whether the Act's eligibility criteria may be
satisfied by such a combination of periods of employment.
The Department is publishing this Notice to articulate its policy
that claimants can combine periods of employment as miners, millers,
and ore transporters to meet the one-year requirement. For all three
categories of uranium workers (mining, milling, and ore transporting),
the Act specifies six common diseases: Primary cancer of the lung,
fibrosis of the lung, pulmonary fibrosis, cor pulmonale related to
fibrosis of the lung, silicosis, and pneumoconiosis. Therefore, in
cases involving those six illnesses, the Act's exposure criteria can be
satisfied by combining periods of employment that include mining,
milling, and ore transporting. For millers and ore transporters (but
not miners), the Act specifies two additional compensable diseases:
Primary renal cancer and chronic renal disease including nephritis and
kidney tubal tissue injury. In cases involving those two illnesses, the
Act's exposure criteria can be satisfied by combining periods of
employment that include only milling and ore transporting.
This Notice is intended to inform the public of the Department's
longstanding policy regarding the calculation of the referenced
employment periods. In addition, the Department will continue to
announce this policy at outreach events and in communications with
claimants, counsel, and support groups.
Dated: October 14, 2008.
Gregory G. Katsas,
Assistant Attorney General, Civil Division.
[FR Doc. E8-25230 Filed 10-22-08; 8:45 am]
BILLING CODE 4410-12-P
