[Federal Register Volume 67, Number 152 (Wednesday, August 7, 2002)]
[Proposed Rules]
[Pages 51440-51457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19222]



  Federal Register / Vol. 67, No. 152 / Wednesday, August 7, 2002 / 
Proposed Rules  

[[Page 51440]]


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DEPARTMENT OF JUSTICE

28 CFR Part 79

[CIV101P; AG Order No. 2605-2002]
RIN 1105-AA75


Claims Under the Radiation Exposure Compensation Act Amendments 
of 2000; Expansion of Coverage to Uranium Millers and Ore Transporters; 
Expansion of Coverage for Uranium Miners; Representation and Fees

AGENCY: Civil Division, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice (``the Department'') proposes to 
amend its existing regulations implementing the Radiation Exposure 
Compensation Act (``the Act'') to reflect amendments to the Act made in 
the Radiation Exposure Compensation Act Amendments of 2000 (``2000 
Amendments''), enacted on July 10, 2000. This is the second of two 
related rulemakings and is a proposed rule. The related rulemaking is a 
final rule published elsewhere in this issue of the Federal Register. 
This proposed rule describes the expanded population of eligible 
uranium mine workers created by lowering the radiation exposure 
threshold for miners; identifies the new uranium mining states with 
respect to which miners may be eligible for compensation; includes 
provision for compensation to ``aboveground'' miners; sets forth 
employment eligibility criteria for the new claimant categories; 
describes the documentation that would be required to establish proof 
of employment in a uranium mine or mill or as an ore transporter; 
describes the medical documentation necessary to establish the 
existence of renal cancer and chronic renal disease; and revises the 
provision concerning representation of claimants before the Department 
of Justice with respect to claims brought under the Act.

DATES: Written comments must be submitted on or before October 7, 2002.

ADDRESSES: Please submit written comments to Gerard W. Fischer, 
Assistant Director, U.S. Department of Justice, Civil Division, P.O. 
Box 146, Ben Franklin Station, Washington, DC 20044-0146.

FOR FURTHER INFORMATION CONTACT: Gerard W. Fischer (Assistant 
Director), (202) 616-4090, and Dianne S. Spellberg (Senior Counsel), 
(202) 616-4129.

SUPPLEMENTARY INFORMATION: On July 10, 2000, the Radiation Exposure 
Compensation Act Amendments of 2000 were enacted, providing expanded 
coverage to individuals who developed one of the diseases specified in 
the amended Act following exposure to radiation related to the Federal 
Government's atmospheric nuclear weapons program or as a result of 
employment in the uranium production industry. This rule proposes 
amendments to the regulations governing radiation exposure compensation 
claims, principally in order to implement the 2000 Amendments' 
expansion of the Act to cover uranium mill workers and individuals 
employed in the transport of uranium ore or vanadium-uranium ore, and 
to expand the population of eligible uranium mine workers by lowering 
the radiation exposure threshold for miners, by enlarging the number of 
uranium mining states with respect to which miners may be eligible for 
compensation, and by including ``aboveground'' miners within the scope 
of the regulations.
    This proposed rule sets forth the criteria that a claimant must 
establish to be eligible for compensation under certain provisions of 
the Act. Section 5(a)(1)(A) of the amended Act provides that certain 
``miners,'' ``millers,'' and ``ore transporters'' are eligible for 
compensation. The terms ``miner,'' ``miller,'' and ``ore transporter'' 
are not self-defining. The definitions of those terms in the proposed 
rule are drafted broadly, reflecting the statutory objective to provide 
comprehensive compensation to all persons who contracted serious 
illnesses as a result of employment in uranium mines or uranium mills 
and as ore transporters. The structure of section 5(a)(1)(A) of the 
Act, as well as the legislative history, strongly indicate that 
Congress intended the words ``miner'' and ``miller'' to be simple 
shorthands for anyone who was employed in a uranium mine and a uranium 
mill, respectively. Accordingly, the proposed rule adopts broad 
definitions of the words ``miner'' and ``miller.'' Similarly, the rule 
defines an ``ore transporter'' as someone whose employment involved the 
transportation or hauling of uranium ore or vanadium-uranium ore from a 
uranium mine or uranium mill, including the transportation or hauling 
of ore from the ore buying station, ``upgrader,'' ``concentrator'' 
facility, or pilot plant areas of a mill by means of truck, rail, or 
barge.
    The rule replaces the radiation exposure thresholds for claimants 
who were miners with a single minimum exposure level. Specifically, the 
requirement that a claimant or beneficiary establish exposure to 200 
working level months (WLMs) of radiation if the claimant was a non-
smoker and 300 WLMs if the claimant was a smoker and diagnosed with a 
compensable disease before age 45 (and 500 WLMs if a smoker and 
diagnosed after age 45) is stricken. Instead, a miner must establish a 
single exposure level of 40 WLMs of radiation to satisfy that ``uranium 
miner'' eligibility criterion.
    The list of states in which an individual was employed in a uranium 
mine for purposes of establishing eligibility has been expanded to 
include South Dakota, Washington, Idaho, North Dakota, Oregon, and 
Texas. In addition, the Act provides that other states may be included 
for coverage if certain specific requirements are satisfied. The 
definition of ``uranium mine'' contained in the Act's provisions has 
been adopted in the rule and, accordingly, the rule expands coverage 
under the regulations to persons who worked in ``aboveground'' uranium 
mines.
    In the case of millers and ore transporters--who are covered under 
the Act by virtue of the 2000 Amendments--the Act does not require 
specific proof of a certain level of exposure to radiation (as is 
required for miners), but instead require proof merely that a claimant 
was employed for at least one year in a uranium mill (as that term is 
defined in the proposed regulations), or in the transport of uranium 
ore or vanadium-uranium ore, in those states and during the time period 
specified in the Act. In addition, the claimant must have contracted a 
specified illness following such employment. The proposed rule 
describes the work history documentation required to establish proof of 
employment as a miller or as an ore transporter. The rule identifies 
numerous types of records that a claimant may submit to establish 
employment history. Moreover, the Department has accumulated extensive 
data to assist in evaluating a claimant's history of employment as a 
miller or as an ore transporter, including data obtained from a team of 
medical and scientific experts at the National Institute for 
Occupational Safety and Health (NIOSH) in Cincinnati, Ohio, who are 
studying the effects of radiation on mill workers. NIOSH was 
instrumental in detailing the work records it has accummulated for 
purposes of its studies and the personnel records that were available 
from the uranium mill companies. In addition, milling consultants for 
the Department provided extensive information during the course of a 
training workshop relative to the history of uranium milling for the 
period January 1, 1942, through December 31,

[[Page 51441]]

1971. The types of information and data collected by the Department 
include an exhaustive compilation of all uranium mills by state, size 
of the mills, tons of ore processed, ore types, type of milling 
circuit(s) at each mill, the number of employees at each mill, wage 
rate information, the ore suppliers (mines), and, in some instances, 
the names of the ore transporting companies that delivered the product 
from mine to mill. In light of the limited information available 
concerning ore transporting during the relevant period (1942-1971), the 
Department is particularly interested in receiving comments from 
individuals who operated ore transporting companies, or who were 
otherwise employed as ore haulers or transporters.
    The proposed rule identifies particular forms of medical 
documentation that claimants can, and in some cases, must, provide in 
order to establish the existence of compensable diseases for miners, 
millers, and ore transporters, and also identifies other categories of 
health and medical records that the Department ordinarily will consult 
in determining whether there is sufficient evidence of disease to 
warrant compensation. In cases of claimants who are deceased and living 
claimants who were millers or ore transporters and who developed renal 
cancer or another chronic renal disease, the Act does not require 
submission of any particular form of written medical documentation. 
Section 5(b)(5) of the Act, however, requires that living claimants who 
developed lung cancer or a nonmalignant respiratory disease provide 
certain forms of written medical documentation, which are specified in 
the proposed rule. The proposed rule also reflects the requirements in 
section 5(c) of the Act that the Department treat certain forms of 
written medical documentation as conclusive evidence that a living 
claimant developed a nonmalignant respiratory disease or lung cancer. 
The proposed rule does not independently address the provisions 
concerning conclusive evidence in section 5(c)(2)(B) of the Act, 
because that section is substantially identical to section 5(c)(1)(B) 
and appears to have been included in the 2000 Amendments in error. The 
Department requests public comments on whether the regulations should 
accord any additional, independent effect to section 5(c)(2)(B).
    The proposed rule provides specific clarification of the showing 
necessary to establish that a claimant developed renal cancer and 
chronic renal disease. (The renal cancer and chronic renal disease 
regulations apply only to millers and to ore transporters. The Act does 
not prescribe compensation for miners who contracted renal cancer or 
chronic renal disease.) The Department consulted with medical experts 
at the National Cancer Institute and NIOSH in order to identify what a 
claimant should document in order to establish that the claimant 
developed these illnesses. An expansive understanding of ``renal 
disease'' could imply a broad spectrum of impairment ranging from 
``acute disease''' to ``chronic disease.'' However, because the revised 
Act provides compensation only for ``chronic'' illness, the Department 
determined that a minimum level of impairment must be demonstrated. 
Some individuals with diabetes would be able to present medical 
documentation reflecting an elevated creatinine, which is symptomatic 
of both chronic renal disease and diabetes, without an actual diagnosis 
of chronic renal disease. The Department was advised by NIOSH to 
include certain diagnostic criteria to preclude compensating claimants 
for a condition not covered by the Act.
    Finally, section 79.74 of the proposed rule revises the regulation 
(currently 28 CFR 79.54) concerning representation of claimants and 
beneficiaries before the Department. The revised regulation implements 
the provision contained in section 9 of the amended Act limiting the 
fees that representatives of claimants and beneficiaries may receive in 
connection with a claim under the Act. In addition, the proposed rule 
would require that a claimant's or beneficiary's representative before 
the Radiation Exposure Compensation Program (``Program'') be either an 
attorney or a representative of a federally recognized Indian tribe. 
The section heading of section 9 of the amended Act (``Attorney 
Fees''), as well as certain statements in the legislative history of 
the 2000 Amendments, see, e.g., H.R. Rep. 106-697, at 12, 16 (2000), 
suggest a possible congressional assumption that ``representatives'' of 
claimants and beneficiaries would be attorneys. Nevertheless, nothing 
in the Act, in the Administrative Procedure Act, or in any other law 
either prohibits or requires the Department of Justice to permit non-
attorneys to represent claimants and beneficiaries before the 
Department with respect to radiation exposure compensation claims. See 
5 U.S.C. 500(d)(1), 555(b). In the absence of such specific statutory 
direction, Congress has left it within the discretion of the Department 
to decide whether or not to permit ``duly qualified'' persons, see 5 
U.S.C. 555(b), other than attorneys to represent interested parties in 
administrative proceedings before the Department. See Sperry v. 
Florida, 373 U.S. 379, 396-98 (1963). The Department has determined 
generally not to permit non-attorneys to represent claimants and 
beneficiaries before the Program with respect to radiation exposure 
compensation claims. The Department is of the view that claimants and 
beneficiaries would be best served by relying on the expertise and 
legal training of attorneys in cases where such claimants and 
beneficiaries determine it would be beneficial to use the services of a 
representative. Moreover, an attorney representing a claimant or 
beneficiary before the Department must be a member in good standing of 
the bar of the highest court of a state, 5 U.S.C. 500(b), which 
provides assurance that an attorney representative will be subject to 
oversight and disciplinary rules that will best guarantee faithful, 
ethical, and adequate representation of claimants and beneficiaries. An 
attorney representative may hire, and make use of, experts, aids, 
paralegals, and other persons who are not attorneys. The use of such 
assistants and experts, however, will not affect the fee limitations 
specified in the Act and in this proposed rule, which establish an 
overall limitation on the total amount of fees that a representative, 
along with his or her assistants and experts, may receive. The proposed 
rule permits an exception to the attorney requirement for claimant or 
beneficiary representatives who are representatives of a federally 
recognized Indian tribe. This exception is included in recognition of 
the role such tribal representatives traditionally have played in 
representing claimants; the specialized knowledge and expertise such 
representatives have developed with respect to the language, culture, 
and familial relationships of claimants who are tribal members; and 
Congress's directive in section 6(d)(5) of the amended Act that ``[a]ny 
procedures under this subsection shall take into consideration and 
incorporate, to the fullest extent feasible, Native American law, 
tradition, and custom with respect to the submission and processing of 
claims by Native Americans.''

A Final Rulemaking Related to This Proposed Rulemaking

    Elsewhere in today's issue of the Federal Register the Department 
is publishing a related, final rule entitled Claims Under the Radiation 
Exposure Compensation Act Amendments of 2000; Technical Amendments (CIV 
100). That final rule is technical in nature and provides conforming 
amendments to

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implement the Radiation Exposure Compensation Act Amendments of 2000.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities for the following 
reason: The claimant population benefitted by these regulations is 
limited to persons who developed a specified illness following exposure 
to radiation related to the Federal Government's atmospheric nuclear 
weapons program or as a result of employment in the uranium production 
industry. The regulations set forth eligibility criteria that 
individual claimants must satisfy in order to be eligible for 
compensation. They will have no impact on small business 
competitiveness.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation. The Department of Justice has 
determined that this rule is a ``significant regulatory action'' under 
Executive Order 12866, section 3(f), Regulatory Planning and Review, 
and, accordingly, this rule has been reviewed by the Office of 
Management and Budget.
    It is not clear whether this proposed rule should be considered 
``economically significant.'' The uncertainty arises from the inability 
to quantify with precision the number of miners, millers and ore 
transporters that contracted one of the occupational illnesses 
compensable under the Act and the attendant economic impact of their 
receipt of benefits. In the event that the measure of these benefits 
exceeds $100 million, then this proposed rule will be ``economically 
significant.'' To date, after nearly 24 months of operation under the 
new law, less than $20 million has been approved for newly eligible 
miners, millers, and ore transporters. It is difficult at this time to 
ascertain whether the cumulative economic impact of claims brought by 
such persons will eventually reach the $100 million threshold amount. 
Accordingly, the Department requests public comment on the issue of 
whether this rule should be considered ``economically significant.''

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice 
Reform.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    Because of the uncertainty of the eventual cumulative impact of the 
new provisions reflected in this rule, the Department is uncertain 
whether this rule meets the standard for a major rule. At present, the 
Department is of the opinion that this is not a major rule as defined 
by section 251 of the Small Business Regulatory Enforcement Fairness 
Act of 1996, 5 U.S.C. 804, and that it will not result in an annual 
effect on the economy of $100,000,000 or more, a major increase in 
costs or prices, or significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based companies to compete with foreign-based companies 
in domestic and export markets.

Paperwork Reduction Act

    Information collection associated with this regulation has been 
approved by the Office of Management and Budget under the provisions of 
the Paperwork Reduction Act of 1995. The OMB control number for this 
collection is 1105-0052.

List of Subjects in 28 CFR Part 79

    Administrative practice and procedure, Authority delegations 
(Government agencies), Cancer, Claims, Radiation Exposure Compensation 
Act, Radioactive materials, Reporting and recordkeeping requirements, 
Uranium mining, Uranium milling, Uranium, Uranium ore hauling.

    Accordingly, the Department of Justice proposes to amend part 79 of 
chapter I of Title 28 of the Code of Federal Regulations as follows:

PART 79--CLAIMS UNDER THE RADIATION EXPOSURE COMPENSATION ACT

    1. The authority citation for part 79 is revised to read as 
follows:

    Authority: Secs. 6(a), 6(i) and 6(j), Pub. L. 101-426, 104 Stat. 
920, as amended by sections 3(c)-(h), Pub. L. 106-245, 114 Stat. 501 
(42 U.S.C. 2210 note; 5 U.S.C. 500(b)).

    2. Subparts E, F, and G and Sec. 79.74 of subpart H are added, to 
read as follows:
Subpart E--Uranium Miners
Sec.
79.40   Scope of subpart.
79.41   Definitions.
79.42   Criteria for eligibility.
79.43   Proof of employment as a miner.
79.44   Proof of working level month exposure to radiation.
79.45   Proof of lung cancer.
79.46   Proof of nonmalignant respiratory disease.
Subpart F--Uranium Millers
79.50   Scope of subpart.
79.51   Definitions.
79.52   Criteria for eligibility.
79.53   Proof of employment as a miller.
79.54   Proof of lung cancer.
79.55   Proof of nonmalignant respiratory disease.
79.56   Proof of renal cancer.
79.57   Proof of chronic renal disease.
Subpart G--Ore Transporters
79.60   Scope of subpart.
79.61   Definitions.
79.62   Criteria for eligibility.
79.63   Proof of employment as an ore transporter.
79.64   Proof of lung cancer.
79.65   Proof of nonmalignant respiratory disease.
79.66   Proof of renal cancer.
79.67   Proof of chronic renal disease.

Subpart E--Uranium Miners


Sec. 79.40  Scope of subpart.

    The regulations in this subpart define the eligibility criteria for 
compensation under section 5 of the Act pertaining to miners, i.e., 
uranium mine workers, and the nature of the evidence that will be 
accepted as proof of the various criteria. Section 5 of the Act 
provides for a payment of $100,000 to miners who contracted lung cancer 
or one of a limited number of nonmalignant respiratory diseases 
following exposure to a defined minimum level of radiation

[[Page 51443]]

during employment in an aboveground or underground uranium mine or 
uranium mines in specified states during the period beginning January 
1, 1942, and ending December 31, 1971.


Sec. 79.41  Definitions.

    (a) Cor pulmonale means heart disease, including hypertrophy of the 
right ventricle, due to pulmonary hypertension secondary to fibrosis of 
the lung.
    (b) Designated time period means the period beginning on January 1, 
1942, and ending on December 31, 1971.
    (c) Fibrosis of the lung or pulmonary fibrosis for purposes of the 
Act and these regulations means chronic inflammation and scarring of 
the pulmonary interstitium and alveoli with collagen deposition and 
progressive thickening causing pulmonary impairment.
    (d) Lung cancer means any physiological condition of the lung, 
trachea, or bronchus that is recognized under that name or nomenclature 
by the National Cancer Institute. The term includes in situ lung 
cancers.
    (e) Miner or uranium mine worker means a person who operated or 
otherwise worked in a uranium mine.
    (f) National Institute for Occupational Safety and Health (NIOSH) 
certified ``B'' reader means a physician who is certified as such by 
NIOSH. A list of certified ``B'' readers is available from the 
Radiation Exposure Compensation Program upon request.
    (g) Nonmalignant respiratory disease means fibrosis of the lung, 
pulmonary fibrosis, cor pulmonale related to fibrosis of the lung, 
silicosis, or pneumoconiosis.
    (h) Pneumoconiosis means a chronic lung disease resulting from 
inhalation and deposition in the lung of particulate matter, and the 
tissue reaction to the presence of the particulate matter.
    (i) Readily available documentation means documents in the 
possession, custody, or control of the claimant or an immediate family 
member.
    (j) Silicosis means a pneumoconiosis due to the inhalation of the 
dust of stone, sand, flint, or other materials containing silicon 
dioxide, characterized by the formation of pulmonary fibrotic changes.
    (k) Specified state means Colorado, New Mexico, Arizona, Wyoming, 
South Dakota, Washington, Utah, Idaho, North Dakota, Oregon, or Texas. 
Additional states may be included, provided:
    (1) An Atomic Energy Commission uranium mine was operated in such 
state at any time during the period beginning on January 1, 1942, and 
ending on December 31, 1971;
    (2) The state submits an application to the Assistant Director 
(specified in 28 CFR 79.70(a)) to include such state; and
    (3) the Assistant Director makes a determination to include such 
state.
    (l) Uranium mine means any underground excavation, including ``dog 
holes'' and open-pit, strip, rim, surface, or other aboveground mines 
where uranium ore or vanadium-uranium ore was mined or otherwise 
extracted.
    (m) Working level means the concentration of the short half-life 
daughters of radon that will release (1.3  x  10\5\) million electron 
volts of alpha energy per liter of air.
    (n) Working level month of radiation means radiation exposure at 
the level of one working level every work day for a month, or an 
equivalent cumulative exposure over a greater or lesser amount of time.
    (o) Written diagnosis by a physician means a written determination 
of the nature of a disease made from a study of the signs and symptoms 
of a disease that is based on a physical examination of the patient, 
medical imaging or a chemical, microscopic, microbiologic, immunologic 
or pathologic study of physiologic and functional tests, secretions, 
discharges, blood, or tissue. For purposes of satisfying the 
requirement of a ``written diagnosis by a physician'' for living 
claimants specified in Secs. 79.45 and 79.46, a physician submitting a 
written diagnosis of a nonmalignant respiratory disease or lung cancer 
must be employed by the Indian Health Service or the Department of 
Veterans Affairs or be certified by a state medical board, and must 
have a documented, ongoing physician-patient relationship with the 
claimant. An ``ongoing physician-patient relationship'' can include 
referrals made to specialists from a primary care provider (and 
accepted by the primary care provider) for purposes of diagnosis or 
treatment.


Sec. 79.42  Criteria for eligibility.

    To establish eligibility for compensation under this subpart, a 
claimant or eligible surviving beneficiary must establish each of the 
following:
    (a) The claimant was employed as a miner in a specified state;
    (b) The claimant was so employed at any time during the period 
beginning on January 1, 1942, and ending on December 31, 1971;
    (c) The claimant was exposed during the course of his or her mining 
employment to 40 or more working level months of radiation; and
    (d) The claimant contracted lung cancer or a nonmalignant 
respiratory disease following such exposure.


Sec. 79.43  Proof of employment as a miner.

    (a) The Department will accept, as proof of employment for a 
designated time period, information contained in any of the following 
records:
    (1) Records created by or gathered by the Public Health Service 
(PHS) in the course of any health studies of uranium workers during or 
including the period 1942-1990;
    (2) Records of a uranium worker census performed by the PHS at 
various times during the period 1942-1990;
    (3) Records of the Atomic Energy Commission (AEC), or any of its 
successor agencies; and
    (4) Records of federally supported, health-related studies of 
uranium workers, including:
    (i) Studies conducted by Geno Saccamanno, M.D., St. Mary's 
Hospital, Grand Junction, Colorado; and
    (ii) Studies conducted by Jonathan Samet, M.D., University of New 
Mexico School of Medicine.
    (b) The Program will presume that the employment history for the 
time period indicated in records listed in paragraph (a) of this 
section is correct. If the claimant or eligible surviving beneficiary 
wishes to contest the accuracy of such records, then the claimant or 
eligible surviving beneficiary may provide one or more of the records 
identified in paragraph (c) of this section, and the Assistant Director 
will determine whether the employment history indicated in the records 
listed in paragraph (a) is correct.
    (c) If the sources in paragraph (a) of this section do not contain 
information regarding the claimant's uranium mine employment history, 
do not contain sufficient information to establish exposure to at least 
40 working level months of radiation, or if a claimant or eligible 
surviving beneficiary wishes to contest the accuracy of such records, 
then the claimant or eligible surviving beneficiary may submit records 
from any of the following sources, and the Assistant Director shall 
consider such records (in addition to any sources listed in paragraph 
(a) of this section) in order to determine whether the claimant has 
established the requisite employment history:
    (1) Governmental records of any of the specified states, including 
records of state regulatory agencies, containing information on uranium 
mine workers and uranium mines;
    (2) Records of any business entity that owned or operated a uranium 
mine, or its successor-in-interest;

[[Page 51444]]

    (3) Records of the Social Security Administration reflecting the 
identity of the employer, the years and quarters of employment, and the 
wages received during each quarter;
    (4) Federal or state income tax records that contain relevant 
statements regarding the claimant's employer and wages;
    (5) Records containing factual findings by any governmental 
judicial body, state worker's compensation board, or any governmental 
administrative body adjudicating the claimant's rights to any type of 
benefits (which will be accepted only to prove the fact of and duration 
of employment in a uranium mine);
    (6) Statements in medical records created during the period 1942-
1971 indicating or identifying the claimant's employer and occupation;
    (7) Records of an academic or scholarly study, not conducted in 
anticipation of or in connection with any litigation, and completed 
prior to 1990; and
    (8) Any other contemporaneous record that indicates or identifies 
the claimant's occupation or employer.
    (d) To the extent that the documents submitted from the sources 
identified in this section do not so indicate, the claimant or eligible 
surviving beneficiary must set forth under oath on the standard claim 
form the following information, if known:
    (1) The names of the mine employers for which the claimant worked 
during the time period identified in the documents;
    (2) The names and locations of any mines in which the claimant 
worked;
    (3) The actual time period the claimant worked in each mine;
    (4) The claimant's occupation in each mine; and
    (5) Whether the mining employment was conducted aboveground or 
underground.
    (e) If the claimant or eligible surviving beneficiary cannot 
provide the name or location of any uranium mine at which the claimant 
was employed as required under paragraph (d)(2) of this section, then 
the Program shall, if possible, determine such information from records 
reflecting the types of mines operated or owned by the entity for which 
the claimant worked.
    (f) If the information provided under paragraphs (a) and (c) of 
this section is inadequate to determine the time period during which 
the claimant was employed in each uranium mine, then the Program will, 
where possible, calculate such employment periods in the following 
manner, for purposes of calculating working level months of exposure:
    (1) If records of the Social Security Administration exist that 
indicate the claimant's work history, the Program will estimate the 
period of employment by dividing the gross quarterly income by the 
average pay rate per hour for the claimant's occupation;
    (2) If such Social Security Administration records do not exist, 
but other records exist that indicate that the claimant was employed in 
a uranium mine on the date recorded in the record, but do not indicate 
the period of employment, then the Program will apply the following 
presumptions:
    (i) If the records indicate that the claimant worked at the same 
mine or for the same uranium mining company on two different dates at 
least three months apart but less than 12 months apart, then the 
Program will presume that the claimant was employed at the mine or for 
the mining company for the entire 12-month period beginning on the 
earlier date.
    (ii) If the records indicate that the claimant worked at the same 
mine or for the same uranium mining company on two different dates at 
least one month apart but less than three months apart, then the 
Program will presume that the claimant was employed at the mine or for 
the mining company for the entire six-month period beginning on the 
earlier date.
    (iii) If the records indicate that the claimant worked at any mine 
or for a uranium mining company on any date within the designated time 
period, but the presumptions listed above are not applicable, then the 
Program will presume that the claimant was employed at the mine or for 
the mining company for a six-month period, consisting of three months 
before and three months after the date indicated.
    (g) In determining whether a claimant satisfies the employment and 
exposure criteria of the Act, the Assistant Director shall resolve all 
reasonable doubt in favor of the claimant. If the Assistant Director 
concludes that the claimant has not satisfied the employment or 
exposure requirements of the Act, the claimant or eligible surviving 
beneficiary will be notified and afforded the opportunity, in 
accordance with the provisions of Sec. 79.72(c), to submit additional 
records to establish that the statutory criteria are satisfied.


Sec. 79.44  Proof of working level month exposure to radiation.

    (a) If one or more of the sources in Sec. 79.43(a) contain a 
calculated total of working level months (WLMs) of radiation for the 
claimant equal to or greater than 40 WLMs, then the Program will 
presume that total to be correct, absent evidence to the contrary, in 
which case the claimant or eligible surviving beneficiary need not 
submit additional records.
    (b) If the sources in Sec. 79.43(a) do not contain a calculated 
total of WLMs of radiation for the claimant, or contain a calculated 
total that is less than 40 WLMs, a claimant or eligible surviving 
beneficiary may submit the following records reflecting a calculated 
number of WLMs of radiation for periods of employment established under 
Sec. 79.43(c):
    (1) Certified copies of records of regulatory agencies of the 
specified states, provided that the records indicate the mines at which 
the claimant was employed, the time period of the claimant's employment 
in each mine, the exposure level in each mine during the claimant's 
employment, and the calculations on which the claimant's WLMs are 
based, unless the calculation is apparent;
    (2) Certified copies of records of the owner or operator of a 
uranium mine in the specified states, provided that the records 
indicate the mines at which the claimant was employed, the time period 
of the claimant's employment in each mine, the exposure level in each 
mine during the claimant's employment, and the calculations on which 
the claimant's WLMs are based, unless the calculation is apparent.
    (c) If the number of WLMs established under paragraphs (a) and (b) 
of this section is equal to or greater than 40 WLMs of radiation, the 
claimant or eligible surviving beneficiary need not submit additional 
records. When the sources referred to in paragraphs (a) and (b) of this 
section do not establish a calculated number of at least 40 WLMs, the 
Program will, where possible, calculate additional WLMs in the manner 
set forth in paragraphs (d) through (g) of this section for the periods 
of employment for which the sources in paragraphs (a) and (b) do not 
establish calculated totals. When calculating an exposure level for a 
particular period of a claimant's employment history, the Program will 
apply aboveground exposure levels with respect to those periods in 
which the claimant worked principally aboveground and will apply 
underground exposure levels with respect to those periods in which the 
claimant worked principally underground.
    (d) To the extent the sources referred to in paragraphs (a) and (b) 
of this section do not contain a calculated number of WLMs, but do 
contain annual

[[Page 51445]]

exposure levels measured in Working Levels (WLs) for mines in which the 
claimant was employed, the Program will calculate the claimant's 
exposure to radiation measured in WLMs in the manner set forth in 
paragraph (h) of this section.
    (e) For periods of employment in a uranium mine that a claimant 
establishes under Sec. 79.43(c) as to which paragraph (d) of this 
section is not applicable, the Program will, where possible, use any or 
all of the following sources in computing the annual exposure level 
measured in WLs in each mine for the period of the claimant's 
employment, in the manner set forth in paragraph (g) of this section:
    (1) Records of the AEC, or its successor agencies;
    (2) Records of the PHS, including radiation-level measurements 
taken in the course of health studies conducted of uranium miners 
during or including the period 1942-1971;
    (3) Records of the United States Bureau of Mines;
    (4) Records of regulatory agencies of the specified states; or
    (5) Records of the business entity that was the owner or operator 
of the mine.
    (f) For periods of employment in unidentified or misidentified 
uranium mines that a claimant establishes under Sec. 79.43(c)-(f), the 
Program will determine annual exposure levels measured in WLs in the 
unidentified or misidentified mines by calculating an average of the 
annual exposure levels measured in WLs in all the uranium mines owned 
or operated by the entities for which the claimant worked during the 
appropriate time periods and in the identified states.
    (g) With respect to periods of employment in a uranium mine that a 
claimant establishes under Sec. 79.43(c) as to which paragraph (d) of 
this section is not applicable, and periods of employment in 
unidentified or misidentified uranium mines that a claimant establishes 
under Sec. 79.43(c)-(f), the Program will use the following methodology 
to calculate the annual exposure level measured in WLs for each mine:
    (1) If one or more radiation measurements are available for a mine 
in a given year, such values will be averaged to generate the WLs for 
the mine for that year.
    (2) If radiation measurements exist for the mine, but not for the 
year in which the claimant was employed in the mine, the WLs for the 
mine for that year will be estimated if possible as follows:
    (i) If annual average measurements exist within four years of the 
year in which the claimant was employed in the mine, the measurements 
for the two years closest will be averaged, and that value will be 
assigned to the year the claimant was employed in the mine;
    (ii) If one or more annual average measurements exist for a mine, 
but are not more than five years from the year the claimant was 
employed, the annual average closest in time will be assigned either 
forward or backward in time for two years.
    (3) If the methods described in paragraphs (g)(1) and (2) of this 
section interpolate or project the annual exposure level measured in 
WLs for a mine in a year in which the claimant was employed in the 
mine, the Program will use an estimated average for mines of the same 
or similar type, ventilation, and ore composition in the same 
geographical area for that year. An estimated area average will be 
calculated as follows:
    (i) If actual measurements from three or more mines of the same or 
similar type, ventilation, and ore composition are available from mines 
in the same locality as the mine in which the claimant was employed, 
the average of the measurements for the mines within that locality will 
be used.
    (ii) If there are insufficient actual measurements from mines in 
the same locality to use the method in paragraph (g)(3)(A) of this 
section, an average of exposure levels in mines in the same mining 
district will be used.
    (iii) If there is no average of exposure levels from mines in the 
same mining district, the average of exposure levels in mines in the 
same state will be used.
    (iv) If there are insufficient actual measurements from mines in 
the same state, the estimated average for the State of Colorado for the 
relevant year will be used.
    (4) With respect to a year between 1942 and 1949, if the claimant 
was employed in a mine for which no exposure levels are available for 
that year, then the Program will estimate the annual exposure levels 
measured in WLs by averaging the two earliest exposure levels recorded 
from that mine after the year 1941. If there are not two exposure 
levels recorded from that mine, the Program will estimate the WLs by 
averaging the two earliest exposure levels after the year 1941 from the 
mines identified according to the methods set forth in paragraphs 
(g)(3)(i)-(iv).
    (h) The Program will calculate a claimant's total exposure to 
radiation expressed in WLMs, for purposes of establishing eligibility 
under Sec. 79.42(c), by adding together the WLMs for each period of 
employment that the claimant has established. For those periods of a 
claimant's employment for which the Program has obtained or calculated 
WLs pursuant to paragraphs (d)-(g) of this section, the Program shall 
determine WLMs by multiplying the WL by the pertinent time period, 
measured in months, yielding a claimant's exposure to radiation 
expressed in WLMs.


Sec. 79.45  Proof of lung cancer.

    (a) In determining whether a claimant developed lung cancer 
following pertinent employment as a miner, the Assistant Director shall 
resolve all reasonable doubt in favor of the claimant. A conclusion 
that a claimant developed lung cancer must be supported by medical 
documentation. In cases where the claimant is deceased, the claimant's 
beneficiary may submit any form of medical documentation specified in 
paragraph (e) of this section. A living claimant also may submit any 
form of medical documentation. However, a living claimant must at a 
minimum submit the medical documentation required in paragraph (e)(2) 
of this section. In all cases, the Program will review submitted 
medical documentation, and will, in addition and where appropriate, 
review any pertinent records discovered within the sources identified 
in paragraphs (b), (c), and (d) of this section.
    (b) Where appropriate, the Radiation Exposure Compensation Program 
will search the records of the PHS (including NIOSH), created or 
gathered during the course of any health study of uranium workers 
conducted or being conducted by these agencies, to determine whether 
those records contain proof of the claimant's medical condition. (In 
cases where the claimant is deceased, the Program will accept as proof 
of medical condition the verification of the PHS or NIOSH that it 
possesses medical records or abstracts of medical records of the 
claimant that contain a verified diagnosis of lung cancer.)
    (c) If a claimant was diagnosed as having lung cancer in the State 
of Arizona, Colorado, Nevada, New Mexico, Utah, or Wyoming, and the 
claimant or eligible surviving beneficiary submits with the claim an 
Authorization To Release Medical or Other Information, valid in the 
state of diagnosis, that authorizes the Radiation Exposure Compensation 
Program to contact the appropriate state cancer or tumor registry, the 
Program will, where appropriate, request the relevant information from 
that registry and will review records that it obtains from the 
registry. (In cases where the claimant is deceased, the Program will 
accept as proof of medical condition verification

[[Page 51446]]

from the state cancer or tumor registry that it possesses medical 
records or abstracts of medical records of the claimant that contain a 
verified diagnosis of lung cancer.)
    (d) If medical records regarding the claimant were gathered during 
the course of any federally supported, health-related study of uranium 
workers, and the claimant or eligible surviving beneficiary submits 
with the claim an Authorization To Release Medical or Other Information 
that authorizes the Program to contact the custodian of the records of 
the study to determine if proof of the claimant's medical condition is 
contained in the records of the study, the Program will, where 
appropriate, request such records from that custodian and will review 
records that it obtains from the custodian. (In cases where the 
claimant is deceased, the Program will accept as proof of the 
claimant's medical condition such medical records or abstracts of 
medical records containing a verified diagnosis of lung cancer.)
    (e)(1) A claimant or beneficiary may submit any of the following 
forms of medical documentation in support of a claim that the claimant 
contracted lung cancer. Such documentation will be most useful where it 
contains an explicit statement of diagnosis or such other information 
or data from which the appropriate authorities at the National Cancer 
Institute can make a diagnosis to a reasonable degree of medical 
certainty:
    (i) Pathology report of tissue biopsy, including, but not limited 
to, specimens obtained by any of the following methods:
    (A) Surgical resection;
    (B) Endoscopic endobronchial or transbronchial biopsy;
    (C) Bronchial brushings and washings;
    (D) Pleural fluid cytology;
    (E) Fine needle aspirate;
    (F) Pleural biopsy;
    (G) Sputum cytology;
    (ii) Autopsy report;
    (iii) Bronchoscopy report;
    (iv) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Operative report;
    (D) Radiation therapy summary report;
    (E) Oncology summary or consultation report;
    (v) Reports of radiographic studies, including:
    (A) X-rays of the chest;
    (B) Chest tomograms;
    (C) Computer-assisted tomography (CT);
    (D) Magnetic resonance imaging (MRI);
    (vi) Death certificate, provided that it is signed by a physician 
at the time of death; or
    (vii) Any of the forms of documentation enumerated in paragraph 
(e)(2) of this section.
    (2) Notwithstanding any other documentation provided, a living 
claimant must at a minimum provide the following medical documentation:
    (i) Either:
    (A) An arterial blood gas study administered at rest in a sitting 
position, or an exercise arterial blood gas test, reflecting values 
equal to or less than the values set forth in the Tables in Appendix B 
of this part; or
    (B) A written diagnosis by a physician in accordance with 
Sec. 79.41(o); and
    (ii) One of the following:
    (A) A chest x-ray on full-size film administered in accordance with 
standard techniques accompanied by:
    (1) Interpretive reports of the x-ray by two NIOSH certified ``B'' 
readers, rating the film at quality 1 or 2 and classifying the 
existence of disease of category 1/0 or higher according to a 1980 
report of the International Labor Office (known as the ``ILO'') or 
subsequent revisions; or
    (2) Medical documentation interpreting the chest x-ray from a 
physician employed by the Indian Health Service or the Department of 
Veterans Affairs who has a documented, ongoing physician-patient 
relationship with the claimant (which may include referrals to 
physicians employed by the Indian Health Service or the Department of 
Veterans Affairs for the purposes of diagnosis or treatment);
    (B) High resolution computed tomography scans (commonly known as 
``HRCT scans''), including computer-assisted tomography scans (commonly 
known as ``CAT scans''), magnetic resonance imaging scans (commonly 
known as ``MRI scans''), and positron emission tomography scans 
(commonly known as ``PET scans''), and interpretive reports of such 
scans;
    (C) Pathology reports of tissue biopsies; or
    (D) Pulmonary function tests indicating restrictive lung function 
and consisting of three tracings recording the results of the forced 
expiratory volume in one second (FEV1) and the forced vital capacity 
(FVC) administered and reported in accordance with the Standardization 
of Spirometry--1987 Update by the American Thoracic Society, and 
reflecting values for FEV1 or FVC that are less than or equal to 80% of 
the predicted value for an individual of the claimant's age, sex, and 
height, as set forth in the Tables in Appendix A.
    (f) The Assistant Director shall treat any documentation described 
in paragraph (e)(2)(i)(B) or paragraph (e)(2)(ii)(A) of this section as 
conclusive evidence of the claimant's lung cancer; provided, however, 
that the Program may subject such documentation to a fair and random 
audit procedure to guarantee its authenticity and reliability for 
purposes of treating it as conclusive evidence; and provided further 
that, in order to be treated as conclusive evidence, a written 
diagnosis described in paragraph (e)(2)(i)(B) must be by a physician 
who is employed by the Indian Health Service or the Department of 
Veterans Affairs or who is certified by a state medical board, and who 
must have a documented, ongoing physician-patient relationship with the 
claimant. Notwithstanding the conclusive effect given to certain 
evidence, nothing in this paragraph shall be construed as relieving a 
living claimant of the obligation to provide the Program with the forms 
of documentation required under paragraph (e)(2).


Sec. 79.46  Proof of nonmalignant respiratory disease.

    (a) In determining whether a claimant developed a nonmalignant 
respiratory disease following pertinent employment as a miner, the 
Assistant Director shall resolve all reasonable doubt in favor of the 
claimant. A conclusion that a claimant developed a nonmalignant 
respiratory disease must be supported by medical documentation. In 
cases where the claimant is deceased, the claimant's beneficiary may 
submit any form of medical documentation specified in paragraph (d)(1) 
of this section, and for proof of cor pulmonale must also submit one or 
more forms of documentation specified in paragraph (d)(2). A living 
claimant also may submit any form of medical documentation. However, a 
living claimant must at a minimum submit the medical documentation 
required in paragraph (d)(3) of this section, and for proof of cor 
pulmonale must also submit one or more forms of documentation specified 
in paragraph (d)(2). In all cases, the Program will review submitted 
medical documentation, and will, in addition and where appropriate, 
review any pertinent records discovered within the sources referred to 
in paragraphs (b) and (c) of this section. With respect to a deceased 
claimant, the Program will treat as equivalent to a diagnosis of 
pulmonary fibrosis any diagnosis of ``restrictive lung disease'' made 
by a physician employed by the Indian Health Service.

[[Page 51447]]

    (b) Where appropriate, the Radiation Exposure Compensation Program 
will search the records of the PHS (including NIOSH), created or 
gathered during the course of any health study of uranium workers 
conducted or being conducted by these agencies, to determine whether 
those records contain proof of the claimant's medical condition. (In 
cases where the claimant is deceased, the Program will accept as proof 
of medical condition the verification of the PHS or NIOSH that it 
possesses medical records or abstracts of medical records of the 
claimant that contain a verified diagnosis of a nonmalignant 
respiratory disease.)
    (c) If medical records regarding the claimant were gathered during 
the course of any federally supported, health-related study of uranium 
workers and the claimant or eligible surviving beneficiary submits with 
the claim an Authorization To Release Medical or Other Information that 
authorizes the Program to contact the custodian of the records of the 
study to determine if proof of the claimant's medical condition is 
contained in the records of the study, the Program will, where 
appropriate, request such records from that custodian and will review 
records that it obtains from the custodian. (In cases where the 
claimant is deceased, the Program will accept as proof of the 
claimant's medical condition such medical records or abstracts of 
medical records containing a verified diagnosis of a nonmalignant 
respiratory disease.)
    (d)(1) A claimant or beneficiary may submit any of the following 
forms of medical documentation in support of a claim that the claimant 
contracted a nonmalignant respiratory disease, including pulmonary 
fibrosis, fibrosis of the lung, cor pulmonale, silicosis, and 
pneumoconiosis. Such documentation will be most useful where it 
contains an explicit statement of diagnosis or such other information 
or data from which the appropriate authorities at the National Cancer 
Institute can make a diagnosis to a reasonable degree of medical 
certainty:
    (i) Pathology report of tissue biopsy;
    (ii) Autopsy report;
    (iii) If an x-ray exists, the x-ray and interpretive reports of the 
x-ray by two NIOSH certified ``B'' readers classifying the existence of 
disease of category 1/0 or higher according to a 1980 report of the 
International Labor Office (known as the ``ILO''), or subsequent 
revisions;
    (iv) If no x-rays exist, an x-ray report;
    (v) Physician summary report;
    (vi) Hospital discharge summary report;
    (vii) Hospital admitting report;
    (viii) Death certificate, provided that it is signed by a physician 
at the time of death; or
    (ix) Any form of documentation enumerated in paragraphs (d)(2) and 
(d)(3) of this section.
    (2) In order to demonstrate that the claimant developed cor 
pulmonale related to fibrosis of the lung, the claimant or beneficiary 
must, at a minimum, submit one or more of the following medical 
records:
    (i) Right heart catheterization;
    (ii) Cardiology summary or consultation report;
    (iii) Electrocardiogram;
    (iv) Echocardiogram;
    (v) Physician summary report;
    (vi) Hospital discharge report;
    (vii) Autopsy report;
    (viii) Report of physical examination;
    (ix) Death certificate, provided that it is signed by a physician 
at the time of death.
    (3) Notwithstanding any other documentation provided, a living 
claimant must at a minimum provide the following medical documentation:
    (i) Either:
    (A) An arterial blood gas study administered at rest in a sitting 
position, or an exercise arterial blood gas test, reflecting values 
equal to or less than the values set forth in the Tables in Appendix B 
of this part; or
    (B) A written diagnosis by a physician in accordance with 
Sec. 79.41(o); and
    (ii) One of the following:
    (A) A chest x-ray on full-size film administered in accordance with 
standard techniques accompanied by:
    (1) Interpretive reports of the x-ray by two NIOSH certified ``B'' 
readers, rating the film at quality 1 or 2 and classifying the 
existence of disease of category 1/0 or higher according to a 1980 
report of the International Labor Office (known as the ``ILO''), or 
subsequent revisions; or
    (2) Medical documentation interpreting the chest x-ray from a 
physician employed by the Indian Health Service or the Department of 
Veterans Affairs who has a documented, ongoing physician-patient 
relationship with the claimant (which may include referrals to 
physicians employed by the Indian Health Service or the Department of 
Veterans Affairs for the purposes of diagnosis or treatment);
    (B) High-resolution computed tomography scans (commonly known as 
``HRCT scans''), including computer-assisted tomography scans (commonly 
known as ``CAT scans''), magnetic resonance imaging scans (commonly 
known as ``MRI scans''), and positron emission tomography scans 
(commonly known as ``PET scans''), and interpretive reports of such 
scans;
    (C) Pathology reports of tissue biopsies; or
    (D) Pulmonary function tests indicating restrictive lung function 
and consisting of three tracings recording the results of the forced 
expiratory volume in one second (FEV1) and the forced vital capacity 
(FVC) administered and reported in accordance with the Standardization 
of Spirometry--1987 Update by the American Thoracic Society, and 
reflecting values for FEV1 or FVC that are less than or equal to 80% of 
the predicted value for an individual of the claimant's age, sex, and 
height, as set forth in the Tables in Appendix A.
    (e) The Assistant Director shall treat any documentation described 
in paragraph (d)(3)(i)(B) or paragraph (d)(3)(ii)(A) as conclusive 
evidence of the claimant's nonmalignant respiratory disease; provided, 
however, that the Program may subject such documentation to a fair and 
random audit to guarantee its authenticity and reliability for purposes 
of treating it as conclusive evidence; and provided further that, in 
order to be treated as conclusive evidence, a written diagnosis 
described in paragraph (d)(3)(i)(B) must be by a physician who is 
employed by the Indian Health Service or the Department of Veterans 
Affairs or who is certified by a state medical board, and who must have 
a documented, ongoing physician-patient relationship with the claimant. 
Notwithstanding the conclusive effect given to certain evidence, 
nothing in this paragraph shall be construed as relieving a living 
claimant of the obligation to provide the Program with the forms of 
documentation required under paragraph (d)(3).

Subpart F--Uranium Millers


Sec. 79.50  Scope of subpart.

    The regulations in this subpart define the eligibility criteria for 
compensation under section 5 of the Act pertaining to millers, i.e., 
uranium mill workers, and the nature of evidence that will be accepted 
as proof that a claimant satisfies such criteria. Section 5 of the Act 
provides for a payment of $100,000 to ``millers'' who contracted lung 
cancer, one of a limited number of nonmalignant respiratory diseases, 
renal cancer, or chronic renal disease, following employment for at 
least one year as a uranium mill worker in specified states during the 
period beginning January 1, 1942, and ending December 31, 1971.

[[Page 51448]]

Sec. 79.51  Definitions.

    (a) Chronic nephritis means an inflammatory process of the kidneys 
resulting in chronic renal disease.
    (b) Chronic renal disease means the chronic, progressive, and 
irreversible destruction of the nephrons. It is exhibited by renal 
atrophy and diminution of renal function.
    (c) Cor pulmonale means heart disease, including hypertrophy of the 
right ventricle, due to pulmonary hypertension secondary to fibrosis of 
the lung.
    (d) Designated time period means the period beginning on January 1, 
1942, and ending on December 31, 1971.
    (e) Employment for at least one year means employment for a total 
of at least one year (12 consecutive or cumulative months).
    (f) Fibrosis of the lung or pulmonary fibrosis means chronic 
inflammation and scarring of the pulmonary interstitium and alveoli 
with collagen deposition and progressive thickening causing pulmonary 
impairment.
    (g) Kidney tubal tissue injury means structural damage to the 
kidney tissues or tubules that results in chronic renal disease.
    (h) Lung cancer means any physiological condition of the lung, 
trachea, or bronchus that is recognized under that name or nomenclature 
by the National Cancer Institute. The term includes in situ lung 
cancers.
    (i) Miller or uranium mill worker means a person who operated or 
otherwise worked in a uranium mill.
    (j) National Institute for Occupational Safety and Health (NIOSH) 
certified ``B'' reader means a physician who is certified as such by 
NIOSH. A list of certified ``B'' readers is available from the 
Radiation Exposure Compensation Program upon request.
    (k) Nonmalignant respiratory disease means fibrosis of the lung, 
pulmonary fibrosis, cor pulmonale related to fibrosis of the lung, 
silicosis, and pneumoconiosis.
    (l) Pneumoconiosis means a chronic lung disease resulting from 
inhalation and deposition in the lung of particulate matter, and the 
tissue reaction to the presence of the particulate matter.
    (m) Readily available documentation means documents in the 
possession, custody, or control of the claimant or an immediate family 
member.
    (n) Renal cancer means any physiological condition of the kidneys 
that is recognized under that name or nomenclature by the National 
Cancer Institute.
    (o) Silicosis means a pneumoconiosis due to the inhalation of the 
dust of stone, sand, flint, or other materials containing silicon 
dioxide, characterized by the formation of pulmonary fibrotic changes.
    (p) Specified state means Colorado, New Mexico, Arizona, Wyoming, 
South Dakota, Washington, Utah, Idaho, North Dakota, Oregon, or Texas. 
Additional states may be included, provided:
    (1) An Atomic Energy Commission uranium mine was operated in such 
state at any time during the period beginning on January 1, 1942, and 
ending on December 31, 1971;
    (2) The state submits an application to the Assistant Director 
(specified in 28 CFR 79.70(a)) to include such state; and
    (3) The Assistant Director makes a determination to include such 
state.
    (q) Uranium mill means any milling operation involving the 
processing of uranium ore or vanadium-uranium ore, including carbonate 
plants and acid leach plants. The term applies to ore-buying stations 
where ore was weighed and sampled prior to delivery to a mill for 
processing; ``upgrader'' or ``concentrator'' facilities located at the 
mill or at a remote location where uranium or vanadium-uranium ore was 
processed prior to delivery to a mill; and pilot plants where uranium 
ore or vanadium-uranium ore was processed.
    (r) Uranium mine means any underground excavation, including ``dog 
holes,'' as well as open-pit, strip, rim, surface, or other aboveground 
mines the primary or significant purpose of which was the extraction of 
uranium ore or vanadium-uranium ore.
    (s) Written diagnosis by a physician means a written determination 
of the nature of a disease made from a study of the signs and symptoms 
of a disease that is based on a physical examination of the patient, 
medical imaging or a chemical, microscopic, microbiologic, immunologic, 
or pathologic study of physiologic and functional tests, secretions, 
discharges, blood, or tissue. For purposes of satisfying the 
requirement of a ``written diagnosis by a physician'' for living 
claimants specified in Secs. 79.54 and 79.55, a physician submitting a 
written diagnosis of a nonmalignant respiratory disease or lung cancer 
must be employed by the Indian Health Service or the Department of 
Veterans Affairs or be certified by a state medical board, and must 
have a documented, ongoing physician-patient relationship with the 
claimant. An ``ongoing physician-patient relationship'' can include 
referrals made to specialists from a primary care provider (and 
accepted by the primary care provider) for purposes of diagnosis or 
treatment.


Sec. 79.52  Criteria for eligibility.

    To establish eligibility for compensation under this subpart, a 
claimant or eligible surviving beneficiary of a claimant must establish 
each of the following:
    (a) The claimant was employed as a miller in a specified state;
    (b) The claimant was so employed for at least one year (12 
consecutive or cumulative months) during the period beginning on 
January 1, 1942, and ending on December 31, 1971; and
    (c) The claimant contracted lung cancer, a nonmalignant respiratory 
disease, renal cancer, or chronic renal disease (including nephritis 
and kidney tubal tissue injury) following such employment.


Sec. 79.53  Proof of employment as a miller.

    (a) The Department will accept, as proof of employment for the time 
period indicated, information contained in any of the following 
records:
    (1) Records created by or gathered by the Public Health Service 
(PHS) in the course of any health studies of uranium workers during or 
including the period 1942-1990;
    (2) Records of a uranium worker census performed by the PHS at 
various times during the period 1942-1990;
    (3) Records of the Atomic Energy Commission (AEC), or any of its 
successor agencies; and
    (4) Records of federally supported, health-related studies of 
uranium workers.
    (b) The Program will presume that the employment history for the 
time period indicated in records listed in paragraph (a) is correct. If 
the claimant or eligible surviving beneficiary wishes to contest the 
accuracy of such records, then the claimant or eligible surviving 
beneficiary may provide one or more of the records identified in 
paragraph (c) of this section, and the Assistant Director will 
determine whether the employment history indicated in the records 
listed in paragraph (a) is correct.
    (c) If the sources in paragraph (a) of this section do not contain 
information regarding the claimant's uranium mill employment history, 
do not contain sufficient information to establish employment for at 
least one year in a uranium mill during the specified time period to 
qualify under Sec. 79.52(b), or if a claimant or eligible surviving 
beneficiary wishes to contest the accuracy of such records, then the 
claimant or eligible surviving beneficiary may submit records from any 
of the following sources, which the Assistant Director shall consider 
(in addition to any sources listed in paragraph (a) of this section) in 
order to

[[Page 51449]]

determine whether the claimant has established the requisite employment 
history:
    (1) Records of any of the specified states, including records of 
state regulatory agencies, containing information on uranium mill 
workers and uranium mills;
    (2) Records of any business entity that owned or operated a uranium 
mill, or its successor-in-interest;
    (3) Records of the Social Security Administration reflecting the 
identity of the employer, the years and quarters of employment, and the 
wages received during each quarter;
    (4) Federal or state income tax records that contain relevant 
statements regarding the claimant's employer and wages;
    (5) Records containing factual findings by any governmental 
judicial body, state worker's compensation board, or any governmental 
administrative body adjudicating the claimant's rights to any type of 
benefits (which will be accepted only to prove the fact of and duration 
of employment in a uranium mill);
    (6) Statements in medical records created during the period 1942-
1971 indicating or identifying the claimant's employer and occupation;
    (7) Records of an academic or scholarly study, not conducted in 
anticipation of or in connection with any litigation, and completed 
prior to 1990; or
    (8) Any other contemporaneous record that indicates or identifies 
the claimant's occupation or employer.
    (d) To the extent that the documents submitted from the sources 
identified in this section do not so indicate, the claimant or eligible 
surviving beneficiary must set forth under oath on the standard claim 
form the following information, if known:
    (1) The names of the mill employers for which the claimant worked 
during the time period identified in the documents;
    (2) The names and locations of any mills in which the claimant 
worked;
    (3) The actual time period the claimant worked in each mill; and
    (4) The claimant's occupation in each mill.
    (e) The Program may, for the purpose of verifying information 
submitted pursuant to this section, require the claimant or any 
eligible surviving beneficiary to provide an authorization to release 
any record identified in this section, in accordance with the 
provisions of Sec. 79.72(c).
    (f) In determining whether a claimant satisfies the employment 
criteria of the Act, the Assistant Director shall resolve all 
reasonable doubt in favor of the claimant. If the Assistant Director 
concludes that the claimant has not satisfied the employment 
requirements of the Act, the claimant or eligible surviving beneficiary 
will be notified and afforded the opportunity, in accordance with the 
provisions of Sec. 79.72(c), to submit additional records to establish 
that the statutory employment criteria are satisfied.


Sec. 79.54  Proof of lung cancer.

    (a) In determining whether a claimant developed lung cancer 
following pertinent employment as a miller, the Assistant Director 
shall resolve all reasonable doubt in favor of the claimant. A 
conclusion that a claimant developed lung cancer must be supported by 
medical documentation. In cases where the claimant is deceased, the 
claimant's beneficiary may submit any form of medical documentation 
specified in paragraph (e) of this section. A living claimant also may 
submit any form of medical documentation. However, a living claimant 
must at a minimum submit the medical documentation required in 
paragraph (e)(2) of this section. In all cases, the Program will review 
submitted medical documentation, and will, in addition and where 
appropriate, review any pertinent records discovered within the sources 
identified in paragraphs (b), (c) and (d) of this section.
    (b) Where appropriate, the Radiation Exposure Compensation Program 
will search the records of the PHS (including NIOSH), created or 
gathered during the course of any health study of uranium workers 
conducted or being conducted by these agencies, to determine whether 
those records contain proof of the claimant's medical condition. (In 
cases where the claimant is deceased, the Program will accept as proof 
of medical condition the verification of the PHS or NIOSH that it 
possesses medical records or abstracts of medical records of the 
claimant that contain a verified diagnosis of lung cancer.)
    (c) If a claimant was diagnosed as having lung cancer in the State 
of Arizona, Colorado, Nevada, New Mexico, Utah, or Wyoming, and the 
claimant or eligible surviving beneficiary submits with the claim an 
Authorization To Release Medical or Other Information, valid in the 
state of diagnosis, that authorizes the Radiation Exposure Compensation 
Program to contact the appropriate state cancer or tumor registry, the 
Program will, where appropriate, request the relevant information from 
that registry and will review records that it obtains from the 
registry. (In cases where the claimant is deceased, the Program will 
accept as proof of medical condition verification from the state cancer 
or tumor registry that it possesses medical records or abstracts of 
medical records of the claimant that contain a verified diagnosis of 
lung cancer.)
    (d) If medical records regarding the claimant were gathered during 
the course of any federally supported, health-related study of uranium 
workers, and the claimant or eligible surviving beneficiary submits 
with the claim an Authorization To Release Medical or Other Information 
that authorizes the Program to contact the custodian of the records of 
the study to determine if proof of the claimant's medical condition is 
contained in the records of the study, the Program will, where 
appropriate, request such records from that custodian and will review 
records that it obtains from the custodian. (In cases where the 
claimant is deceased, the Program will accept as proof of the 
claimant's medical condition such medical records or abstracts of 
medical records containing a verified diagnosis of lung cancer.)
    (e)(1) A claimant or beneficiary may submit any of the following 
forms of medical documentation in support of a claim that the claimant 
contracted lung cancer. Such documentation will be most useful where it 
contains an explicit statement of diagnosis or such other information 
or data from which the appropriate authorities at the National Cancer 
Institute can make a diagnosis to a reasonable degree of medical 
certainty:
    (i) Pathology report of tissue biopsy, including, but not limited 
to, specimens obtained by any of the following methods:
    (A) Surgical resection;
    (B) Endoscopic endobronchial or transbronchial biopsy;
    (C) Bronchial brushings and washings;
    (D) Pleural fluid cytology;
    (E) Fine needle aspirate;
    (F) Pleural biopsy;
    (G) Sputum cytology;
    (ii) Autopsy report;
    (iii) Bronchoscopy report;
    (iv) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Operative report;
    (D) Radiation therapy summary report;
    (E) Oncology summary or consultation report;
    (v) Reports of radiographic studies, including:

[[Page 51450]]

    (A) X-rays of the chest;
    (B) Chest tomograms;
    (C) Computer-assisted tomography (CT);
    (D) Magnetic resonance imaging (MRI);
    (vi) Death certificate, provided that it is signed by a physician 
at the time of death; or
    (vii) Any type of documentation enumerated in paragraph (e)(2) of 
this section.
    (2) Notwithstanding any other documentation provided, a living 
claimant must at a minimum provide the following medical documentation:
    (i) Either:
    (A) An arterial blood gas study administered at rest in a sitting 
position, or an exercise arterial blood gas test, reflecting values 
equal to or less than the values set forth in the Tables in Appendix B 
of this part; or
    (B) A written diagnosis by a physician in accordance with 
Sec. 79.51(s); and
    (ii) One of the following:
    (A) A chest x-ray on full-size film administered in accordance with 
standard techniques accompanied by:
    (1) Interpretive reports of the x-ray by two NIOSH certified ``B'' 
readers, rating the film at quality 1 or 2 and classifying the 
existence of disease of category 1/0 or higher according to a 1980 
report of the International Labor Office (known as the ``ILO'') or 
subsequent revisions; or
    (2) Medical documentation interpreting the chest x-ray from a 
physician employed by the Indian Health Service or the Department of 
Veterans Affairs who has a documented, ongoing physician-patient 
relationship with the claimant (which may include referrals to 
physicians employed by the Indian Health Service or the Department of 
Veterans Affairs for the purposes of diagnosis or treatment);
    (B) High-resolution computed tomography scans (commonly known as 
``HRCT scans''), including computer assisted tomography scans (commonly 
known as ``CAT scans''), magnetic resonance imaging scans (commonly 
known as ``MRI scans''), and positron emission tomography scans 
(commonly known as ``PET scans''), and interpretive reports of such 
scans;
    (C) Pathology reports of tissue biopsies; or
    (D) Pulmonary function tests indicating restrictive lung function 
and consisting of three tracings recording the results of the forced 
expiratory volume in one second (FEV1) and the forced vital capacity 
(FVC) administered and reported in accordance with the Standardization 
of Spirometry--1987 Update by the American Thoracic Society, and 
reflecting values for FEV1 or FVC that are less than or equal to 80% of 
the predicted value for an individual of the claimant's age, sex, and 
height, as set forth in the Tables in Appendix A.
    (f) The Assistant Director shall treat any documentation described 
in paragraph (e)(2)(i)(B) or paragraph (e)(2)(ii)(A) as conclusive 
evidence of the claimant's lung cancer; provided, however, that the 
Program may subject such documentation to a fair and random audit 
procedure to guarantee its authenticity and reliability for purposes of 
treating it as conclusive evidence; and provided further that, in order 
to be treated as conclusive evidence, a written diagnosis described in 
paragraph (e)(2)(i)(B) must be by a physician who is employed by the 
Indian Health Service or the Department of Veterans Affairs or who is 
certified by a state medical board, and who must have a documented, 
ongoing physician-patient relationship with the claimant. 
Notwithstanding the conclusive effect given to certain evidence, 
nothing in this paragraph shall be construed as relieving a living 
claimant of the obligation to provide the Program with the forms of 
documentation required under paragraph (e)(2).


Sec. 79.55  Proof of nonmalignant respiratory disease.

    (a) In determining whether a claimant developed a nonmalignant 
respiratory disease following pertinent employment as a miller, the 
Assistant Director shall resolve all reasonable doubt in favor of the 
claimant. A conclusion that a claimant developed a nonmalignant 
respiratory disease must be supported by medical documentation. In 
cases where the claimant is deceased, the claimant's beneficiary may 
submit any form of medical documentation specified in paragraph (d)(1) 
of this section, and for proof of cor pulmonale must also submit one or 
more forms of documentation specified in paragraph (d)(2). A living 
claimant also may submit any form of medical documentation. However, a 
living claimant must at a minimum submit the medical documentation 
required in paragraph (d)(3) of this section, and for proof of cor 
pulmonale must also submit one or more forms of documentation specified 
in paragraph (d)(2). In all cases, the Program will review submitted 
medical documentation, and will, in addition and where appropriate, 
review any pertinent records discovered within the sources referred to 
in paragraphs (b) and (c) of this section. With respect to a deceased 
claimant, the Program will treat as equivalent to a diagnosis of 
pulmonary fibrosis any diagnosis of ``restrictive lung disease'' made 
by a physician employed by the Indian Health Service.
    (b) Where appropriate, the Radiation Exposure Compensation Program 
will search the records of the PHS (including NIOSH), created or 
gathered during the course of any health study of uranium workers 
conducted or being conducted by these agencies, to determine whether 
those records contain proof of the claimant's medical condition. (In 
cases where the claimant is deceased, the Program will accept as proof 
of medical condition the verification of the PHS or NIOSH that it 
possesses medical records or abstracts of medical records of the 
claimant that contain a verified diagnosis of a nonmalignant 
respiratory disease.)
    (c) If medical records regarding the claimant were gathered during 
the course of any federally supported, health-related study of uranium 
workers, and the claimant or eligible surviving beneficiary submits 
with the claim an Authorization To Release Medical or Other Information 
that authorizes the Program to contact the custodian of the records of 
the study to determine if proof of the claimant's medical condition is 
contained in the records of the study, the Program will, where 
appropriate, request such records from that custodian and will review 
records that it obtains from the custodian. (In cases where the 
claimant is deceased, the Program will accept as proof of the 
claimant's medical condition such medical records or abstracts of 
medical records containing a verified diagnosis of a nonmalignant 
respiratory disease.)
    (d)(1) A claimant or beneficiary may submit any of the following 
forms of medical documentation in support of a claim that the claimant 
contracted a nonmalignant respiratory disease, including pulmonary 
fibrosis, fibrosis of the lung, cor pulmonale, silicosis, and 
pneumoconiosis. Such documentation will be most useful where it 
contains an explicit statement of diagnosis or such other information 
or data from which the appropriate authorities at the National Cancer 
Institute can make a diagnosis to a reasonable degree of medical 
certainty:
    (i) Pathology report of tissue biopsy;
    (ii) Autopsy report;
    (iii) If an x-ray exists, the x-ray and interpretive reports of the 
x-ray by two NIOSH certified ``B'' readers classifying the existence of 
disease of category 1/0 or higher according to a 1980 report of the 
International Labor Office (known as the ``ILO''), or subsequent 
revisions;
    (iv) If no x-rays exist, an x-ray report;
    (v) Physician summary report;

[[Page 51451]]

    (vi) Hospital discharge summary report;
    (vii) Hospital admitting report;
    (viii) Death certificate, provided that it is signed by a physician 
at the time of death; or
    (ix) Any of the types of documentation enumerated in paragraphs 
(d)(2) and (d)(3) of this section.
    (2) In order to demonstrate that the claimant developed cor 
pulmonale related to fibrosis of the lung, the claimant or beneficiary 
must, at a minimum, submit one or more of the following medical 
records:
    (i) Right heart catheterization;
    (ii) Cardiology summary or consultation report;
    (iii) Electrocardiogram;
    (iv) Echocardiogram;
    (v) Physician summary report;
    (vi) Hospital discharge report;
    (vii) Autopsy report;
    (viii) Report of physical examination;
    (ix) Death certificate, provided that it is signed by a physician 
at the time of death.
    (3) Notwithstanding any other documentation provided, a living 
claimant must at a minimum provide the following medical documentation:
    (i) Either:
    (A) An arterial blood gas study administered at rest in a sitting 
position, or an exercise arterial blood gas test, reflecting values 
equal to or less than the values set forth in the Tables in Appendix B 
of this part; or
    (B) A written diagnosis by a physician in accordance with 
Sec. 79.51(s); and
    (ii) One of the following:
    (A) A chest x-ray on full-size film administered in accordance with 
standard techniques accompanied by:
    (1) Interpretive reports of the x-ray by two NIOSH certified ``B'' 
readers, rating the film at quality 1 or 2 and classifying the 
existence of disease of category 1/0 or higher according to a 1980 
report of the International Labor Office (known as the ``ILO'') or 
subsequent revisions; or
    (2) Medical documentation interpreting the chest x-ray from a 
physician employed by the Indian Health Service or the Department of 
Veterans Affairs who has a documented, ongoing physician-patient 
relationship with the claimant (which may include referrals to 
physicians employed by the Indian Health Service or the Department of 
Veterans Affairs for the purposes of diagnosis or treatment);
    (B) High-resolution computed tomography scans (commonly known as 
``HRCT scans''), including computer-assisted tomography scans (commonly 
known as ``CAT scans''), magnetic resonance imaging scans (commonly 
known as ``MRI scans''), and positron emission tomography scans 
(commonly known as ``PET scans''), and interpretive reports of such 
scans;
    (C) Pathology reports of tissue biopsies; or
    (D) Pulmonary function tests indicating restrictive lung function 
and consisting of three tracings recording the results of the forced 
expiratory volume in one second (FEV1) and the forced vital capacity 
(FVC) administered and reported in accordance with the Standardization 
of Spirometry--1987 Update by the American Thoracic Society, and 
reflecting values for FEV1 or FVC that are less than or equal to 80% of 
the predicted value for an individual of the claimant's age, sex, and 
height, as set forth in the Tables in Appendix A.
    (e) The Assistant Director shall treat any documentation described 
in paragraph (d)(3)(i)(B) or paragraph (d)(3)(ii)(A) of this section as 
conclusive evidence of the claimant's nonmalignant respiratory disease; 
provided, however, that the Program may subject such documentation to a 
fair and random audit to guarantee its authenticity and reliability for 
purposes of treating it as conclusive evidence; and provided further 
that, in order to be treated as conclusive evidence, a written 
diagnosis described in paragraph (d)(3)(i)(B) must be by a physician 
who is employed by the Indian Health Service or the Department of 
Veterans Affairs or who is certified by a state medical board, and who 
must have a documented, ongoing physician-patient relationship with the 
claimant. Notwithstanding the conclusive effect given to certain 
evidence, nothing in this paragraph shall be construed as relieving a 
living claimant of the obligation to provide the Program with the forms 
of documentation required under paragraph (d)(3).


Sec. 79.56  Proof of renal cancer.

    (a) In determining whether a claimant developed renal cancer 
following pertinent employment as a miller, the Assistant Director 
shall resolve all reasonable doubt in favor of the claimant. A 
conclusion that a claimant developed renal cancer must be supported by 
medical documentation. In all cases, the Program will review submitted 
medical documentation, and will, in addition and where appropriate, 
review any pertinent records discovered within the sources referred to 
in paragraphs (b) and (c) of this section.
    (b) Where appropriate, the Radiation Exposure Compensation Program 
will search the records of the PHS (including NIOSH), created or 
gathered during the course of any health study of uranium workers 
conducted or being conducted by these agencies, to determine whether 
those records contain proof of the claimant's medical condition. The 
Program will accept as proof of medical condition the verification of 
the PHS or NIOSH that it possesses medical records or abstracts of 
medical records of the claimant that contain a verified diagnosis of 
renal cancer.
    (c) If a claimant was diagnosed as having renal cancer in the State 
of Arizona, Colorado, Nevada, New Mexico, Utah, or Wyoming, and the 
claimant or eligible surviving beneficiary submits with the claim an 
Authorization To Release Medical or Other Information, valid in the 
state of diagnosis, that authorizes the Radiation Exposure Compensation 
Program to contact the appropriate state cancer or tumor registry, the 
Program will, where appropriate, request the relevant information from 
that registry and will review records that it obtains from the 
registry. The Program will accept as proof of medical condition 
verification from the state cancer or tumor registry that it possesses 
medical records or abstracts of medical records of the claimant that 
contain a verified diagnosis of renal cancer.
    (d) If medical records regarding the claimant were gathered during 
the course of any federally supported, health-related study of uranium 
workers, and the claimant or eligible surviving beneficiary submits 
with the claim an Authorization To Release Medical or Other Information 
that authorizes the Program to contact the custodian of the records of 
the study to determine if proof of the claimant's medical condition is 
contained in the records of the study, the Program will, where 
appropriate, request such records from that custodian and will review 
records that it obtains from the custodian. The Program will accept as 
proof of the claimant's medical condition such medical records or 
abstracts of medical records containing a verified diagnosis of renal 
cancer.
    (e) A claimant or beneficiary may submit any of the following forms 
of medical documentation in support of a claim that the claimant 
contracted renal cancer. Such documentation will be most useful where 
it contains an explicit statement of diagnosis or such other 
information or data from which the appropriate authorities at the 
National Cancer Institute can make a diagnosis to a reasonable degree 
of medical certainty:
    (1) Pathology report of tissue biopsy or resection;
    (2) Autopsy report;

[[Page 51452]]

    (3) One of the following summary medical reports:
    (i) Physician summary report;
    (ii) Hospital discharge summary report;
    (iii) Operative report;
    (iv) Radiotherapy summary report;
    (v) Medical oncology summary or consultation report;
    (4) Report of one of the following radiology examinations:
    (i) Computerized tomography (CT) scan;
    (ii) Magnetic resonance imaging (MRI); or
    (5) Death certificate, provided that it is signed by a physician at 
the time of death.


Sec. 79.57  Proof of chronic renal disease.

    (a) In determining whether a claimant developed chronic renal 
disease following pertinent employment as a miller, the Assistant 
Director shall resolve all reasonable doubt in favor of the claimant. A 
conclusion that a claimant developed chronic renal disease must be 
supported by medical documentation. The Assistant Director shall not 
conclude that a claimant developed chronic renal disease if there is 
evidence of any of the following:
    (1) Volume depletion as a cause of elevated creatinine;
    (2) Urinary obstruction as a cause of elevated creatinine;
    (3) Diabetes mellitus; or
    (4) Diabetic nephropathy (by pathology report of tissue biopsy or 
autopsy, or heavy proteinuria in diabetic patient).
    (b) A claimant or beneficiary may submit any of the following forms 
of medical documentation in support of a claim that the claimant 
contracted chronic renal disease. Such documentation will be most 
useful where it contains an explicit statement of diagnosis or such 
other information or data from which the appropriate authorities at the 
National Cancer Institute can make a diagnosis to a reasonable degree 
of medical certainty.
    (1) Pathology report of tissue biopsy;
    (2) If blood or renal function tests exist:
    (i) Plasma creatinine values greater than age and gender adjusted 
normal values; and
    (ii) Glomerular filtration tests (using either creatinine or 
iothalamate clearance) with values less than age and gender adjusted 
normal values; and
    (iii) Bilateral small kidneys by ultrasound, CT scan, or MRI scan 
with parenchymal changes consistent with chronic renal disease;
    (3) Autopsy report;
    (4) Physician summary report;
    (5) Hospital discharge summary report;
    (6) Hospital admitting report; or
    (7) Death certificate, provided that it is signed by a physician at 
the time of death.

Subpart G--Ore Transporters


Sec. 79.60  Scope of subpart.

    The regulations in this subpart define the eligibility criteria for 
compensation under section 5 of the Act pertaining to uranium or 
vanadium-uranium ore transporters and the nature of evidence that will 
be accepted as proof that a claimant satisfies such criteria. Section 5 
of the Act provides for a payment of $100,000 to persons who contracted 
lung cancer, one of a limited number of nonmalignant respiratory 
diseases, renal cancer, or chronic renal disease, following employment 
for at least one year as a transporter of uranium ore or vanadium-
uranium ore from a uranium mine or uranium mill located in a specified 
state during the period beginning January 1, 1942, and ending December 
31, 1971.


Sec. 79.61  Definitions.

    (a) Chronic nephritis means an inflammatory process of the kidneys 
resulting in chronic renal disease.
    (b) Chronic renal disease means the chronic, progressive, and 
irreversible destruction of the nephrons. It is exhibited by renal 
atrophy and diminution of renal function.
    (c) Cor pulmonale means heart disease, including hypertrophy of the 
right ventricle, due to pulmonary hypertension secondary to fibrosis of 
the lung.
    (d) Designated time period means the period beginning on January 1, 
1942, and ending on December 31, 1971.
    (e) Employment as an ore transporter means employment involving the 
transporting or hauling of uranium ore or vanadium-uranium ore from a 
uranium mine or uranium mill, including the transportation or hauling 
of ore from an ore buying station, ``upgrader,'' ``concentrator'' 
facility, or pilot plant area of a mill by means of truck, rail or 
barge.
    (f) Employment for at least one year means employment for a total 
of at least one year (12 consecutive or cumulative months).
    (g) Fibrosis of the lung or pulmonary fibrosis means chronic 
inflammation and scarring of the pulmonary interstitium and alveoli 
with collagen deposition and progressive thickening causing pulmonary 
impairment.
    (h) Kidney tubal tissue injury means structural damage to the 
kidney tissues or tubules that results in chronic renal disease.
    (i) Lung cancer means any physiological condition of the lung, 
trachea, or bronchus that is recognized under that name or nomenclature 
by the National Cancer Institute. The term includes in situ lung 
cancers.
    (j) National Institute for Occupational Safety and Health (NIOSH) 
certified ``B'' reader means a physician who is certified as such by 
NIOSH. A list of certified ``B'' readers is available from the 
Radiation Exposure Compensation Program upon request.
    (k) Nonmalignant respiratory disease means fibrosis of the lung, 
pulmonary fibrosis, cor pulmonale related to fibrosis of the lung, 
silicosis, and pneumoconiosis.
    (l) Pneumoconiosis means a chronic lung disease resulting from 
inhalation and deposition in the lung of particulate matter, and the 
tissue reaction to the presence of the particulate matter.
    (m) Readily available documentation means documents in the 
possession, custody, or control of the claimant or an immediate family 
member.
    (n) Renal cancer means any physiological condition of the kidneys 
that is recognized under that name or nomenclature by the National 
Cancer Institute.
    (o) Silicosis means a pneumoconiosis due to the inhalation of the 
dust of stone, sand, flint or other materials containing silicon 
dioxide, characterized by the formation of pulmonary fibrotic changes.
    (p) Specified state means Colorado, New Mexico, Arizona, Wyoming, 
South Dakota, Washington, Utah, Idaho, North Dakota, Oregon, or Texas. 
Additional states may be included, provided:
    (1) An Atomic Energy Commission uranium mine was operated in such 
state at any time during the period beginning on January 1, 1942, and 
ending on December 31, 1971;
    (2) The state submits an application to the Assistant Director 
(specified in 28 CFR 79.70(a)) to include such state; and
    (3) The Assistant Director makes a determination to include such 
state.
    (q) Uranium mill means any milling operation involving the 
processing of uranium ore or vanadium-uranium ore, including carbonate 
plants and acid leach plants. The term applies to ore-buying stations 
where ore was weighed and sampled prior to delivery to a mill for 
processing; ``upgrader'' or ``concentrator'' facilities located at the 
mill or at a remote location where uranium or vanadium-uranium ore was 
processed prior to delivery to a mill; and pilot plants where uranium 
ore or vanadium-uranium ore was processed.

[[Page 51453]]

    (r) Uranium mine means any underground excavation, including ``dog 
holes,'' as well as open-pit, strip, rim, surface, or other aboveground 
mines the primary or significant purpose of which was the extraction of 
uranium ore or vanadium-uranium ore.
    (s) Written diagnosis by a physician means a written determination 
of the nature of a disease made from a study of the signs and symptoms 
of a disease that is based on a physical examination of the patient, 
medical imaging or a chemical, microscopic, microbiologic, immunologic, 
or pathologic study of physiologic and functional tests, secretions, 
discharges, blood, or tissue. For purposes of satisfying the 
requirement of a ``written diagnosis by a physician'' for living 
claimants specified in Secs. 79.64 and 79.65, a physician submitting a 
written diagnosis of a nonmalignant respiratory disease or lung cancer 
must be employed by the Indian Health Service or the Department of 
Veterans Affairs or be certified by a state medical board, and must 
have a documented, ongoing physician-patient relationship with the 
claimant. An ``ongoing physician-patient relationship'' can include 
referrals made to specialists from a primary care provider (and 
accepted by the primary care provider) for purposes of diagnosis or 
treatment.


Sec. 79.62  Criteria for eligibility.

    To establish eligibility for compensation under this subpart, a 
claimant or eligible surviving beneficiary of a claimant must establish 
each of the following:
    (a) The claimant was employed as an ore transporter in a specified 
state;
    (b) The claimant was so employed for at least one year (12 
consecutive or cumulative months) during the period beginning on 
January 1, 1942, and ending on December 31, 1971; and
    (c) The claimant contracted lung cancer, a nonmalignant respiratory 
disease, renal cancer, or chronic renal disease (including nephritis 
and kidney tubal tissue injury) following such employment.


Sec. 79.63  Proof of employment as an ore transporter.

    (a) The Department will accept, as proof of employment for the time 
period indicated, information contained in any of the following 
records:
    (1) Records created by or gathered by the Public Health Service 
(PHS) in the course of any health studies of uranium workers during or 
including the period 1942-1990;
    (2) Records of a uranium worker census performed by the PHS at 
various times during the period 1942-1990;
    (3) Records of the Atomic Energy Commission (AEC), or any of its 
successor agencies; and
    (4) Records of federally supported, health-related studies of 
uranium workers.
    (b) The employment history for the time period indicated in such 
records will be presumed to be correct. If the claimant or eligible 
surviving beneficiary wishes to contest the accuracy of such records, 
then the claimant or eligible surviving beneficiary may provide one or 
more of the records identified in paragraph (c) of this section, and 
the Assistant Director will determine whether the employment history 
indicated in the records listed in paragraph (a) is correct.
    (c) If the sources in paragraph (a) of this section do not contain 
information regarding the claimant's ore transporting employment 
history, do not contain sufficient information to establish employment 
for at least one year as an ore transporter during the specified time 
period to qualify under Sec. 79.62(b), or if a claimant or eligible 
surviving beneficiary wishes to contest the accuracy of such records, 
then the claimant or eligible surviving beneficiary may submit records 
from any of the following sources, which the Assistant Director shall 
consider (in addition to any sources listed in paragraph (a) of this 
section) in order to determine whether the claimant has established the 
requisite employment history:
    (1) Records of any of the specified states, including records of 
state regulatory agencies, containing information on uranium ore 
transporters and ore-transporting companies;
    (2) Records of any business entity that owned or operated an ore-
transporting company, or its successor-in-interest;
    (3) Records of the Social Security Administration reflecting the 
identity of the employer, the years and quarters of employment, and the 
wages received during each quarter;
    (4) Federal or state income tax records that contain relevant 
statements regarding the claimant's employer and wages;
    (5) Records containing factual findings by any governmental 
judicial body, state worker's compensation board, or any governmental 
administrative body adjudicating the claimant's rights to any type of 
benefits (which will be accepted only to prove the fact of and duration 
of employment as an ore transporter);
    (6) Statements in medical records created during the period 1942-
1971 indicating or identifying the claimant's employer and occupation;
    (7) Records of an academic or scholarly study, not conducted in 
anticipation of or in connection with any litigation, and completed 
prior to 1990; or
    (8) Any other contemporaneous record that indicates or identifies 
the claimant's occupation or employer.
    (d) To the extent that the documents submitted from the sources 
identified in this section do not so indicate, the claimant or eligible 
surviving beneficiary must set forth under oath on the standard claim 
form the following information, if known:
    (1) The name or other identifying symbol of each employer for which 
the claimant worked during the time period identified in the documents;
    (2) The name of the mine or mill from which uranium or uranium-
vanadium ore was transported;
    (3) The county and state in which the mine or mill was located;
    (4) The actual time period the claimant worked as an ore 
transporter; and
    (5) The method of transportation used to transport the ore.
    (e) The Program may, for the purpose of verifying information 
submitted pursuant to this section, require the claimant or any 
eligible surviving beneficiary to provide an authorization to release 
any record identified in this section, in accordance with the 
provisions of Sec. 79.72(c).
    (f) In determining whether a claimant satisfies the employment 
criteria of the Act, the Assistant Director shall resolve all 
reasonable doubt in favor of the claimant. If the Assistant Director 
concludes that the claimant has not satisfied the employment 
requirements of the Act, the claimant or eligible surviving beneficiary 
will be notified and afforded the opportunity, in accordance with the 
provisions of Sec. 79.72(c), to submit additional records to establish 
that the statutory employment criteria are satisfied.


Sec. 79.64  Proof of lung cancer.

    (a) In determining whether a claimant developed lung cancer 
following pertinent employment as an ore transporter, the Assistant 
Director shall resolve all reasonable doubt in favor of the claimant. A 
conclusion that a claimant developed lung cancer must be supported by 
medical documentation. In cases where the claimant is deceased, the 
claimant's beneficiary may submit any form of medical documentation 
specified in paragraph (e) of this

[[Page 51454]]

section. A living claimant also may submit any form of medical 
documentation. However, a living claimant must at a minimum submit the 
medical documentation required in paragraph (e)(2) of this section. In 
all cases, the Program will review submitted medical documentation, and 
will, in addition and where appropriate, review any pertinent records 
discovered within the sources identified in paragraphs (b), (c), and 
(d) of this section.
    (b) Where appropriate, the Radiation Exposure Compensation Program 
will search the records of the PHS (including NIOSH), created or 
gathered during the course of any health study of uranium workers 
conducted or being conducted by these agencies, to determine whether 
those records contain proof of the claimant's medical condition. (In 
cases where the claimant is deceased, the Program will accept as proof 
of medical condition the verification of the PHS or NIOSH that it 
possesses medical records or abstracts of medical records of the 
claimant that contain a verified diagnosis of lung cancer.)
    (c) If a claimant was diagnosed as having lung cancer in the State 
of Arizona, Colorado, Nevada, New Mexico, Utah or Wyoming, and the 
claimant or eligible surviving beneficiary submits with the claim an 
Authorization To Release Medical or Other Information, valid in the 
state of diagnosis, that authorizes the Radiation Exposure Compensation 
Program to contact the appropriate state cancer or tumor registry, the 
Program will, where appropriate, request the relevant information from 
that registry and will review records that it obtains from the 
registry. (In cases where the claimant is deceased, the Program will 
accept as proof of medical condition verification from the state cancer 
or tumor registry that it possesses medical records or abstracts of 
medical records of the claimant that contain a verified diagnosis of 
lung cancer.)
    (d) If medical records regarding the claimant were gathered during 
the course of any federally supported, health-related study of uranium 
workers, and the claimant or eligible surviving beneficiary submits 
with the claim an Authorization To Release Medical or Other Information 
that authorizes the Program to contact the custodian of the records of 
the study to determine if proof of the claimant's medical condition is 
contained in the records of the study, the Program will, where 
appropriate, request such records from that custodian and will review 
records that it obtains from the custodian. (In cases where the 
claimant is deceased, the Program will accept as proof of the 
claimant's medical condition such medical records or abstracts of 
medical records containing a verified diagnosis of lung cancer.)
    (e)(1) A claimant or beneficiary may submit any of the following 
forms of medical documentation in support of a claim that the claimant 
contracted lung cancer. Such documentation will be most useful where it 
contains an explicit statement of diagnosis or such other information 
or data from which the appropriate authorities at the National Cancer 
Institute can make a diagnosis to a reasonable degree of medical 
certainty:
    (i) Pathology report of tissue biopsy, including, but not limited 
to, specimens obtained by any of the following methods:
    (A) Surgical resection;
    (B) Endoscopic endobronchial or transbronchial biopsy;
    (C) Bronchial brushings and washings;
    (D) Pleural fluid cytology;
    (E) Fine needle aspirate;
    (F) Pleural biopsy;
    (G) Sputum cytology;
    (ii) Autopsy report;
    (iii) Bronchoscopy report;
    (iv) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Operative report;
    (D) Radiation therapy summary report;
    (E) Oncology summary or consultation report;
    (v) Reports of radiographic studies, including:
    (A) X-rays of the chest;
    (B) Chest tomograms;
    (C) Computer-assisted tomography (CT);
    (D) Magnetic resonance imaging (MRI);
    (vi) Death certificate, provided that it is signed by a physician 
at the time of death; or
    (vii) Any of the forms of documentation enumerated in paragraph 
(e)(2) of this section.
    (2) Notwithstanding any other documentation provided, a living 
claimant must at a minimum provide the following medical documentation:
    (i) Either:
    (A) An arterial blood gas study administered at rest in a sitting 
position, or an exercise arterial blood gas test, reflecting values 
equal to or less than the values set forth in the Tables in Appendix B 
of this part; or
    (B) A written diagnosis by a physician in accordance with 
Sec. 79.61(s); and
    (ii) One of the following:
    (A) A chest x-ray on full-size film administered in accordance with 
standard techniques accompanied by:
    (1) Interpretive reports of the x-ray by two NIOSH certified ``B'' 
readers, rating the film at quality 1 or 2 and classifying the 
existence of disease of category 1/0 or higher according to a 1980 
report of the International Labor Office (known as the ``ILO'') or 
subsequent revisions; or
    (2) Medical documentation interpreting the chest x-ray from a 
physician employed by the Indian Health Service or the Department of 
Veterans Affairs who has a documented, ongoing physician-patient 
relationship with the claimant (which may include referrals to 
physicians employed by the Indian Health Service or the Department of 
Veterans Affairs for the purposes of diagnosis or treatment);
    (B) High resolution computed tomography scans (commonly known as 
``HRCT scans''), including computer-assisted tomography scans (commonly 
known as ``CAT scans''), magnetic resonance imaging scans (commonly 
known as ``MRI scans''), and positron emission tomography scans 
(commonly known as ``PET scans''), and interpretive reports of such 
scans;
    (C) Pathology reports of tissue biopsies; or
    (D) Pulmonary function tests indicating restrictive lung function 
and consisting of three tracings recording the results of the forced 
expiratory volume in one second (FEV1) and the forced vital capacity 
(FVC) administered and reported in accordance with the Standardization 
of Spirometry--1987 Update by the American Thoracic Society, and 
reflecting values for FEV1 or FVC that are less than or equal to 80% of 
the predicted value for an individual of the claimant's age, sex, and 
height, as set forth in the Tables in Appendix A.
    (f) The Assistant Director shall treat any documentation described 
in paragraph (e)(2)(i)(B) or paragraph (e)(2)(ii)(A) of this section as 
conclusive evidence of the claimant's lung cancer; provided, however, 
that the Program may subject such documentation to a fair and random 
audit procedure to guarantee its authenticity and reliability for 
purposes of treating it as conclusive evidence; and provided further 
that, in order to be treated as conclusive evidence, a written 
diagnosis described in paragraph (e)(2)(i)(B) must be by a physician 
who is employed by the Indian Health Service or the Department of 
Veterans Affairs or who is certified by a state medical board, and who 
must have a documented, ongoing physician-patient relationship with the 
claimant.

[[Page 51455]]

Notwithstanding the conclusive effect given to certain evidence, 
nothing in this paragraph shall be construed as relieving a living 
claimant of the obligation to provide the Program with the forms of 
documentation required under paragraph (e)(2).


Sec. 79.65  Proof of nonmalignant respiratory disease.

    (a) In determining whether a claimant developed a nonmalignant 
respiratory disease following pertinent employment as an ore 
transporter, the Assistant Director shall resolve all reasonable doubt 
in favor of the claimant. A conclusion that a claimant developed a 
nonmalignant respiratory disease must be supported by medical 
documentation. In cases where the claimant is deceased, the claimant's 
beneficiary may submit any form of medical documentation specified in 
paragraph (d)(1) of this section, and for proof of cor pulmonale must 
also submit one or more forms of documentation specified in paragraph 
(d)(2). A living claimant also may submit any form of medical 
documentation. However, a living claimant must at a minimum submit the 
medical documentation required in paragraph (d)(3) of this section, and 
for proof of cor pulmonale must also submit one or more forms of 
documentation specified in paragraph (d)(2). In all cases, the Program 
will review submitted medical documentation, and will, in addition and 
where appropriate, review any pertinent records discovered within the 
sources referred to in paragraphs (b) and (c) of this section. With 
respect to a deceased claimant, the Program will treat as equivalent to 
a diagnosis of pulmonary fibrosis any diagnosis of ``restrictive lung 
disease'' made by a physician employed by the Indian Health Service.
    (b) Where appropriate, the Radiation Exposure Compensation Program 
will search the records of the PHS (including NIOSH), created or 
gathered during the course of any health study of uranium workers 
conducted or being conducted by these agencies, to determine whether 
those records contain proof of the claimant's medical condition. (In 
cases where the claimant is deceased, the Program will accept as proof 
of medical condition the verification of the PHS or NIOSH that it 
possesses medical records or abstracts of medical records of the 
claimant that contain a verified diagnosis of a nonmalignant 
respiratory disease.)
    (c) If medical records regarding the claimant were gathered during 
the course of any federally supported, health-related study of uranium 
workers, and the claimant or eligible surviving beneficiary submits 
with the claim an Authorization To Release Medical or Other Information 
that authorizes the Program to contact the custodian of the records of 
the study to determine if proof of the claimant's medical condition is 
contained in the records of the study, the Program will, where 
appropriate, request such records from that custodian and will review 
records that it obtains from the custodian. (In cases where the 
claimant is deceased, the Program will accept as proof of the 
claimant's medical condition such medical records or abstracts of 
medical records containing a verified diagnosis of a nonmalignant 
respiratory disease.)
    (d)(1) A claimant or beneficiary may submit any of the following 
forms of medical documentation in support of a claim that the claimant 
contracted a nonmalignant respiratory disease, including pulmonary 
fibrosis, fibrosis of the lung, cor pulmonale, silicosis and 
pneumoconiosis. Such documentation will be most useful where it 
contains an explicit statement of diagnosis or such other information 
or data from which the appropriate authorities at the National Cancer 
Institute can make a diagnosis to a reasonable degree of medical 
certainty.
    (i) Pathology report of tissue biopsy;
    (ii) Autopsy report;
    (iii) If an x-ray exists, the x-ray and interpretive reports of the 
x-ray by two NIOSH certified ``B'' readers classifying the existence of 
disease of category 1/0 or higher according to a 1980 report of the 
International Labor Office (known as the ``ILO''), or subsequent 
revisions;
    (iv) If no x-rays exist, an x-ray report;
    (v) Physician summary report;
    (vi) Hospital discharge summary report;
    (vii) Hospital admitting report;
    (viii) Death certificate, provided that it is signed by a physician 
at the time of death; or
    (ix) Any form of documentation enumerated in paragraphs (d)(2) and 
(d)(3) of this section.
    (2) In order to demonstrate that the claimant developed cor 
pulmonale related to fibrosis of the lung, the claimant or beneficiary 
must, at a minimum, submit one or more of the following medical 
records:
    (i) Right heart catheterization;
    (ii) Cardiology summary or consultation report;
    (iii) Electrocardiogram;
    (iv) Echocardiogram;
    (v) Physician summary report;
    (vi) Hospital discharge report;
    (vii) Autopsy report;
    (viii) Report of physical examination;
    (ix) Death certificate, provided that it is signed by a physician 
at the time of death.
    (3) Notwithstanding any other documentation provided, a living 
claimant must at a minimum provide the following medical documentation:
    (i) Either:
    (A) An arterial blood gas study administered at rest in a sitting 
position, or an exercise arterial blood gas test, reflecting values 
equal to or less than the values set forth in the Tables in Appendix B 
of this part; or
    (B) A written diagnosis by a physician in accordance with 
Sec. 79.61(s); and
    (ii) One of the following:
    (A) A chest x-ray on full-size film administered in accordance with 
standard techniques accompanied by:
    (1) Interpretive reports of the x-ray by two NIOSH certified ``B'' 
readers, rating the film at quality 1 or 2 and classifying the 
existence of disease of category 1/0 or higher according to a 1980 
report of the International Labor Office (known as the ``ILO''), or 
subsequent revisions; or
    (2) Medical documentation interpreting the chest x-ray from a 
physician employed by the Indian Health Service or the Department of 
Veterans Affairs who has a documented, ongoing physician-patient 
relationship with the claimant (which may include referrals to 
physicians employed by the Indian Health Service or the Department of 
Veterans Affairs for the purposes of diagnosis or treatment);
    (B) High-resolution computed tomography scans (commonly known as 
``HRCT scans''), including computer-assisted tomography scans (commonly 
known as ``CAT scans''), magnetic resonance imaging scans (commonly 
known as ``MRI scans''), and positron emission tomography scans 
(commonly known as ``PET scans''), and interpretive reports of such 
scans;
    (C) Pathology reports of tissue biopsies; or
    (D) Pulmonary function tests indicating restrictive lung function 
and consisting of three tracings recording the results of the forced 
expiratory volume in one second (FEV1) and the forced vital capacity 
(FVC) administered and reported in accordance with the Standardization 
of Spirometry--1987 Update by the American Thoracic Society, and 
reflecting values for FEV1 or FVC that are less than or equal to 80% of 
the predicted value for an individual of the claimant's age, sex, and 
height, as set forth in the Tables in Appendix A.
    (e) The Assistant Director shall treat any documentation described 
in paragraph (d)(3)(i)(B) or paragraph (d)(3)(ii)(A) as conclusive 
evidence of

[[Page 51456]]

the claimant's nonmalignant respiratory disease; provided, however, 
that the Program may subject such documentation to a fair and random 
audit to guarantee its authenticity and reliability for purposes of 
treating it as conclusive evidence; and provided further that, in order 
to be treated as conclusive evidence, a written diagnosis described in 
paragraph (d)(3)(i)(B) must be by a physician who is employed by the 
Indian Health Service or the Department of Veterans Affairs or who is 
certified by a state medical board, and who must have a documented, 
ongoing physician-patient relationship with the claimant. 
Notwithstanding the conclusive effect given to certain evidence, 
nothing in this paragraph shall be construed as relieving a living 
claimant of the obligation to provide the Program with the forms of 
documentation required under paragraph (d)(3).


Sec. 79.66  Proof of renal cancer.

    (a) In determining whether a claimant developed renal cancer 
following pertinent employment as an ore transporter, the Assistant 
Director shall resolve all reasonable doubt in favor of the claimant. A 
conclusion that a claimant developed renal cancer must be supported by 
medical documentation. In all cases, the Program will review submitted 
medical documentation, and, in addition and where appropriate, will 
review any pertinent records discovered within the sources referred to 
in paragraphs (b) and (c) of this section.
    (b) Where appropriate, the Radiation Exposure Compensation Program 
will search the records of the PHS (including NIOSH), created or 
gathered during the course of any health study of uranium workers 
conducted or being conducted by these agencies, to determine whether 
those records contain proof of the claimant's medical condition. The 
Program will accept as proof of medical condition the verification of 
the PHS or NIOSH that it possesses medical records or abstracts of 
medical records of the claimant that contain a verified diagnosis of 
renal cancer.
    (c) If a claimant was diagnosed as having renal cancer in the State 
of Arizona, Colorado, Nevada, New Mexico, Utah or Wyoming, and the 
claimant or eligible surviving beneficiary submits with the claim an 
Authorization To Release Medical or Other Information, valid in the 
state of diagnosis, that authorizes the Radiation Exposure Compensation 
Program to contact the appropriate state cancer or tumor registry, the 
Program will, where appropriate, request the relevant information from 
that registry and will review records that it obtains from the 
registry. The Program will accept as proof of medical condition 
verification from the state cancer or tumor registry that it possesses 
medical records or abstracts of medical records of the claimant that 
contain a verified diagnosis of renal cancer.
    (d) If medical records regarding the claimant were gathered during 
thecourse of any federally supported, health-related study of uranium 
workers, and the claimant or eligible surviving beneficiary submits 
with the claim an Authorization To Release Medical or Other Information 
that authorizes the Program to contact the custodian of the records of 
the study to determine if proof of the claimant's medical condition is 
contained in the records of the study, the Program will, where 
appropriate, request such records from that custodian and will review 
records that it obtains from the custodian. The Program will accept as 
proof of the claimant's medical condition such medical records or 
abstracts of medical records containing a verified diagnosis of renal 
cancer.
    (e) A claimant or beneficiary may submit any of the following forms 
of medical documentation in support of a claim that the claimant 
contracted renal cancer. Such documentation will be most useful where 
it contains an explicit statement of diagnosis or such other 
information or data from which the appropriate authorities at the 
National Cancer Institute can make a diagnosis to a reasonable degree 
of medical certainty:
    (1) Pathology report of tissue biopsy or resection;
    (2) Autopsy report;
    (3) One of the following summary medical reports:
    (i) Physician summary report;
    (ii) Hospital discharge summary report;
    (iii) Operative report;
    (iv) Radiotherapy summary report;
    (v) Medical oncology summary or consultation report;
    (4) Report of one of the following radiology examinations:
    (i) Computerized tomography (CT) scan;
    (ii) Magnetic resonance imaging (MRI); or
    (5) Death certificate, provided that it is signed by a physician at 
the time of death.


Sec. 79.67  Proof of chronic renal disease.

    (a) In determining whether a claimant developed chronic renal 
disease following pertinent employment as an ore transporter, the 
Assistant Director shall resolve all reasonable doubt in favor of the 
claimant. A conclusion that a claimant developed chronic renal disease 
must be supported by medical documentation. The Assistant Director 
shall not conclude that a claimant developed chronic renal disease if 
there is evidence of any of the following:
    (1) Volume depletion as a cause of elevated creatinine;
    (2) Urinary obstruction as a cause of elevated creatinine;
    (3) Diabetes mellitus; or
    (4) Diabetic nephropathy (by pathology report of tissue biopsy or 
autopsy, or heavy proteinuria in diabetic patient).
    (b) A claimant or beneficiary may submit any of the following forms 
of medical documentation in support of a claim that the claimant 
contracted chronic renal disease. Such documentation will be most 
useful where it contains an explicit statement of diagnosis or such 
other information or data from which the appropriate authorities at the 
National Cancer Institute can make a diagnosis to a reasonable degree 
of medical certainty.
    (1) Pathology report of tissue biopsy;
    (2) If blood or renal function tests exist:
    (i) Plasma creatinine values greater than age and gender adjusted 
normal values; and
    (ii) Glomerular filtration tests (using either creatinine or 
iothalamate clearance) with values less than age and gender adjusted 
normal values; and
    (iii) Bilateral small kidneys by ultrasound, CT scan, or MRI scan 
with parenchymal changes consistent with chronic renal disease;
    (3) Autopsy report;
    (4) Physician summary report;
    (5) Hospital discharge summary report;
    (6) Hospital admitting report; or
    (7) Death certificate, provided that it is signed by a physician at 
the time of death.

Subpart H--Procedures

* * * * *


Sec. 79.74  Representatives and fees.

    (a) Representation. In submitting and presenting a claim to the 
Program, a claimant or beneficiary may, but need not, be represented by 
an attorney or by a representative of an Indian tribe. To the extent 
that resources are available, the Assistant Director will provide 
assistance to all persons who file claims for compensation.
    (b) Fees. (1) Notwithstanding any contract, the representative of a 
claimant or beneficiary, along with any

[[Page 51457]]

assistants or experts retained on behalf of the claimant or 
beneficiary, may not receive from a claimant or beneficiary any fee for 
services rendered, and costs incurred, in connection with an 
unsuccessful claim, and, except as provided in paragraph (b)(2) of this 
section, may receive from a claimant or beneficiary no more than two 
percent of the total award for all services rendered, and costs 
incurred, in connection with a successful claim.
    (2)(i) If a representative before July 10, 2000, entered into a 
contract with the claimant or beneficiary for services with respect to 
a particular claim, then that representative may receive up to ten 
percent of the total award for services rendered in connection with 
that claim.
    (ii) If a representative resubmits a previously denied claim, then 
that representative may receive up to ten percent of the total award to 
the claimant or beneficiary for services rendered in connection with 
that claim. Resubmitted claims include claims that were previously 
denied and refiled under the Act, claims administratively appealed to 
the designated Appeals Officer, and actions for review filed in United 
States District Court.
    (3) Any violation of this subsection shall result in a fine of not 
more than $5,000.
    (c) Attorney qualifications. An attorney may not represent a 
claimant or beneficiary unless the attorney is a member in good 
standing of the bar of the highest court of a state. If a claimant or 
beneficiary is represented by an attorney, then the attorney must 
submit the following documents to the Program along with the claim:
    (1) A statement of the attorney's membership in good standing of 
the bar of the highest court of a state; and
    (2) A signed representation agreement, retainer agreement, fee 
agreement, or contract, documenting the attorney's authorization to 
represent the claimant or beneficiary.

    Dated: July 24, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-19222 Filed 8-6-02; 8:45 am]
BILLING CODE 4410-12-P