Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act
| Published date | 16 July 2024 |
| Record Number | 2024-15512 |
| Citation | 89 FR 57730 |
| Court | Workers' Compensation Programs Office |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 136 (Tuesday, July 16, 2024)
[Federal Register Volume 89, Number 136 (Tuesday, July 16, 2024)]
[Rules and Regulations]
[Pages 57730-57731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15512]
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DEPARTMENT OF LABOR
Office of Workers' Compensation Programs
20 CFR Part 30
RIN 1240-AA19
Claims for Compensation Under the Energy Employees Occupational
Illness Compensation Program Act
AGENCY: Office of Workers' Compensation Programs, Department of Labor.
ACTION: Final rule.
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SUMMARY: The Office of Workers' Compensation Programs (OWCP) is
publishing this final rule to update its criteria for establishing
beryllium sensitivity. This change brings OWCP's regulations into
alignment with a statutory provision that was enacted as part of the
National Defense Authorization Act for Fiscal Year 2024 on December 22,
2023. The new provision provides an additional way by which both
previously ineligible and new claimants can establish beryllium
sensitivity due to occupational exposure to beryllium.
DATES: This final rule is effective on July 16, 2024.
FOR FURTHER INFORMATION CONTACT: Rachel D. Pond, Director, Division of
Energy Employees Occupational Illness Compensation, Office of Workers'
Compensation Programs by mail at U.S. Department of Labor, Room C-3510,
200 Constitution Avenue NW, Washington, DC 20210; by email at [email protected] (please put ``RIN 1240-AA19'' in the subject line); or
by telephone at 202-693-0081 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION: Part B of the Energy Employees Occupational
Illness Compensation Program Act (EEOICPA), 42 U.S.C. 7384 et seq.,
provides uniform lump-sum payments and medical benefits to covered
employees or, where applicable, to their survivors of the Department of
Energy (DOE), its predecessor agencies and certain of its vendors,
contractors and subcontractors who were diagnosed with a radiogenic
cancer, chronic beryllium disease, beryllium sensitivity or chronic
silicosis, as a result of exposure to radiation, beryllium, or silica
while employed at covered facilities. Part B of EEOICPA also provides
smaller uniform lump-sum payments and medical benefits to individuals
found eligible by the Department of Justice for an award under section
5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. 2210
(note), or, where applicable, to their survivors. Part E of EEOICPA
provides variable lump-sum payments (based on a worker's permanent
impairment and/or qualifying calendar 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
qualifying calendar years of established wage-loss). Part E also
provides these same payments and benefits to uranium miners, millers
and ore transporters covered by section 5 of RECA and, where
applicable, to survivors of such employees.
A claimant who successfully establishes a claim under Part B for
beryllium sensitivity is eligible for medical monitoring (including all
tests for chronic beryllium disease), treatment and therapy for this
illness effective on the date of filing. Previously, a claimant could
establish beryllium sensitivity under Part B by presenting one abnormal
beryllium lymphocyte proliferation test (BeLPT) that was performed on
blood or lung lavage cells. Section 5501(b) of Public Law 118-31, the
National Defense Authorization Act for Fiscal Year 2024, amended
section 7384l(8)(A) of EEOICPA to provide that beryllium sensitivity
can now also be established by submitting three borderline BeLPTs
performed on blood cells over a period of three years.
OWCP has already aligned its case adjudication procedures with this
new statutory provision by issuing EEOICPA Bulletin No. 24-01 on
January 30, 2024. This final rule will also bring OWCP's regulations
into conformance with both the above amendment to EEOICPA and its
procedures. Specifically, OWCP is amending Sec. Sec. 30.5(h) and
(p)(1), 30.205(b)(1) and 30.207(b) of 20 CFR part 30 by adding new text
to incorporate the recently enacted amendment to EEOICPA, that an
alternative to establishing beryllium sensitivity can be by submitting
three borderline beryllium LPTs performed on blood cells over a period
of 3 years.
OWCP's implementation of this action without opportunity for public
comment is based on the good cause exception in 5 U.S.C. 553(b)(B), in
that seeking public comment is impracticable, unnecessary, and contrary
to the public interest. Pursuant to 5 U.S.C. 553(d)(3), an agency may
``for good cause found'' also dispense with the 30-day delay in the
effective date of a rule. OWCP has determined that seeking public
comment is both impracticable and unnecessary because it has no
discretion to change an entitlement criterion enacted by Congress.
Thus, this rule merely aligns the regulations with the self-
effectuating changes provided by the National Defense Authorization Act
for Fiscal Year 2024. Furthermore, OWCP finds that seeking public
comment and delaying this rule's effective date would be contrary to
the public interest because it would cause confusion regarding the
availability of benefits to newly eligible claimants seeking
compensation for beryllium sensitivity under Part B of EEOICPA if the
four sections listed above are not updated expeditiously to reflect
their eligibility.
Executive Orders 12866: Regulatory Planning and Review; Executive Order
14094: Modernizing Regulatory Review; and Executive Order 13563:
Improving Regulation and Regulatory Review
The Office of Management and Budget has determined that this rule
is not a significant regulatory action under Executive Order 12866, and
a Regulatory Impact Analysis is not required. No action is warranted
for Executive Order 13563 as the rule is not significant and no
Regulatory Impact Analysis is required.
[[Page 57731]]
Regulatory Flexibility Act of 1980
An analysis under the Regulatory Flexibility Act of 1980, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (RFA), 5 U.S.C. 601-612, is not needed for this rule. The RFA
imposes certain requirements on Federal agency rules that are subject
to the notice and comment requirements of 5 U.S.C. 553(b). OWCP is
invoking the good cause exception to notice-and-comment procedures for
this final rule. Accordingly, OWCP is not required to either certify
that the final rule would not have a significant economic impact on a
substantial number of small entities or conduct a regulatory
flexibility analysis.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
requires that OWCP consider the impact of paperwork and other
information collection burdens imposed on the public. OWCP has
determined that this final rule does not require any collection of
information or alter any existing information collections.
Unfunded Mandates Reform Act of 1995 and Executive Order 13132
OWCP has reviewed this final rule in accordance with the
requirements of Executive Order No. 13132, 64 FR 43225 (Aug. 10, 1999),
and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.,
and has found no potential or substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. As there is no Federal mandate contained herein
that could result in increased expenditures by State, local, or Tribal
governments or by the private sector, OWCP has not prepared a budgetary
impact statement.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
This regulatory action does not have Tribal implications, as
specified in Executive Order 13175, 65 FR 67249 (Nov. 9, 2000), which
focuses on policy directives that burden or otherwise interfere with
Tribal self-government and sovereignty by limiting the administrative
discretion of Tribal governments. OWCP has determined that the final
rule does not have substantial direct effects on Tribal governments, on
the relationship between the Federal Government and the Indian Tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian Tribes. Because this rulemaking does not
in any way impinge on an aspect of Tribal self-government or
sovereignty, Executive Order 13175 does not apply to this action.
Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
OWCP has reviewed this final rule in accordance with Executive
Order 12630, 53 FR 8859 (Mar. 15, 1988), and has determined that it
does not contain any ``policies that have takings implications'' in
regard to the ``licensing, permitting, or other condition requirements
or limitations on private property use, or that require dedications or
exactions from owners of private property.''
Executive Order 13211: Energy Supply, Distribution, or Use
OWCP has reviewed this final rule and has determined that the
provisions of Executive Order 13211, 66 FR 28355 (May 18, 2001), are
not applicable as there are no direct or implied effects on energy
supply, distribution, or use.
List of Subjects in 20 CFR Part 30
Administrative practice and procedure, Cancer, Claims, Kidney
diseases, Leukemia, Lung diseases, Miners, Radioactive materials, Tort
claims, Underground mining, Uranium, Workers' compensation.
Text of the Rule
For the reasons stated in the preamble, OWCP amends 20 CFR part 30
as follows:
PART 30--CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES
OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED
0
1. The authority citation for part 30 continues to read as follows:
Authority: 5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C.
7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR
77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 10-
2009, 74 FR 58834.
0
2. Amend Sec. 30.5 by revising paragraphs (h) and (p)(1) to read as
follows:
Sec. 30.5 What are the definitions used in this part?
* * * * *
(h) Beryllium sensitization or sensitivity means that the
individual has either:
(1) An abnormal beryllium lymphocyte proliferation test (LPT)
performed on either blood or lung lavage cells; or
(2) Three borderline beryllium LPTs performed on blood cells over a
period of 3 years.
* * * * *
(p) * * *
(1) Beryllium sensitivity as established by either:
(i) An abnormal beryllium LPT performed on either blood or lung
lavage cells; or
(ii) Three borderline beryllium LPTs performed on blood cells over
a period of 3 years.
* * * * *
0
3. Amend Sec. 30.205 by revising paragraph (b)(1) to read as follows:
Sec. 30.205 What are the criteria for eligibility for benefits
relating to beryllium illnesses covered under Part B of EEOICPA?
* * * * *
(b) * * *
(1) Beryllium sensitivity as established by either:
(i) An abnormal beryllium LPT performed on either blood or lung
lavage cells; or
(ii) Three borderline beryllium LPTs performed on blood cells over
a period of 3 years.
* * * * *
0
4. Amend Sec. 30.207 by revising paragraph (b) to read as follows:
Sec. 30.207 How does a claimant prove a diagnosis of a beryllium
disease covered under Part B?
* * * * *
(b) Beryllium sensitivity or sensitization is established with
either:
(1) An abnormal beryllium LPT performed on either blood or lung
lavage cells; or
(2) Three borderline beryllium LPTs performed on blood cells over a
period of 3 years.
* * * * *
Signed at Washington, DC, this tenth day of July 2024.
Christopher J. Godfrey,
Director, Office of Workers' Compensation Programs.
[FR Doc. 2024-15512 Filed 7-15-24; 8:45 am]
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