[Federal Register Volume 69, Number 57 (Wednesday, March 24, 2004)]
[Rules and Regulations]
[Pages 13709-13712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6555]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 69, No. 57 / Wednesday, March 24, 2004 / 
Rules and Regulations  

[[Page 13709]]



DEPARTMENT OF ENERGY

10 CFR Part 852

RIN 1901-AB13


Guidelines for Physician Panel Determinations on Worker Requests 
for Assistance in Filing for State Worker's Compensation Benefits; 
Procedural Amendments

AGENCY: Department of Energy.

ACTION: Interim final rule; request for comment.

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

SUMMARY: In order to expedite the handling of applications submitted by 
contractor employees or their survivors to the Department of Energy 
(DOE) Office of Worker Advocacy for assistance in pursuing workers' 
compensation under State law for illness or death arising from exposure 
to toxic substances at a DOE workplace, DOE today publishes and makes 
immediately effective certain procedural amendments. Today's procedural 
amendments will help streamline the processing of applications 
submitted to DOE under part D of the Energy Employees Occupational 
Illness Compensation Program Act of 2000 (``EEOICPA''). The amendments 
reduce from three to one the minimum number of physicians required for 
an affirmative physician panel determination in most instances. To 
ensure that the procedural amendments in today's rule accomplish their 
purpose, DOE invites public comment on today's rule.

DATES: Effective Date: March 24, 2004. Comment Date: Comments are due 
April 23, 2004.

ADDRESSES: You may submit comments, identified by RIN 1901-AB13, by any 
of the following methods:
    Electronic comments may be submitted at the Federal eRulemaking 
Portal: http://www.regulations.gov.
    E-mail comments may be submitted to: [email protected]. 
Comments may be mailed to: Judy Keating, Room 6B-128, U.S. Department 
of Energy, Office of Worker Advocacy, EH-8, 1000 Independence Avenue, 
SW., Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT: Judy Keating, U.S. Department of 
Energy, Office of Worker Advocacy, EH-8, 1000 Independence Avenue, SW., 
Washington, DC 20585, (202) 586-7551, e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On August 14, 2002, DOE published a final rule implementing part D 
of the Energy Employees Occupational Illness Compensation Program Act 
of 2000 (``the Act'') (42 U.S.C. 7384, et seq.), Guidelines for 
Physician Panel Determinations on Worker Requests for Assistance in 
Filing for State Workers' Compensation Benefits, 67 FR 52841. The rule, 
codified at 10 CFR part 852, sets forth procedures under which a DOE 
contractor employee or an employee's estate or survivor may seek 
assistance from the DOE Office of Worker Advocacy (``Program Office'') 
in filing a claim with the appropriate State workers' compensation 
system based on an illness or death that arose out of exposure to a 
toxic substance during the course of employment at a DOE facility. The 
rule also establishes the internal procedures to be followed by DOE in 
processing and considering an application for assistance.
    DOE has received more than 20,000 applications for assistance under 
Part D of the Act. The Program Office conducts an initial screening of 
the applications to identify applications that are not eligible for 
assistance. An application must contain reasonable evidence that the 
following three conditions are met. First, the application was filed by 
or on behalf of a DOE contractor employee or the employee's estate or 
survivor. Second, the illness or death of the DOE contractor employee 
may have been caused by exposure to a toxic substance. Third, the 
illness or death may have been related to employment at a DOE facility. 
(See 67 FR at 52842-43, 52845).
    Applications that pass the initial screening process are then 
submitted to a case development and document acquisition process 
whereby documents within DOE's control and relevant to the application 
are acquired from DOE's facilities and contractors, the files are 
organized, and a case summary is prepared. The complete application 
package is then presented to a Physician Panel for review. Pursuant to 
the terms of DOE's regulations, the Physician Panel reviews the package 
and determines whether the illness or death arose out of and in the 
course of employment by a DOE contractor and exposure to a toxic 
substance at a DOE facility. The Physician Panel determination is then 
forwarded to the Program Office.
    Under DOE's regulations issued in August 2002, a Physician Panel is 
composed of three physicians appointed by the Secretary of Health and 
Human Services (``HHS''). The physicians are compensated at a rate not 
exceeding the cap established by law in 42 U.S.C. 7385o(d)(2)(B). 
Moreover, the Act requires that Physician Panel members have 
occupational medicine experience and competency in diagnosing 
occupational illnesses. (42 U.S.C. 7385o(d)(2)(A)). Only a small 
percentage of licensed physicians have the experience and competency in 
diagnosing occupational illnesses necessary to be qualified by HHS. 
While HHS has qualified over 150 physicians, participation on panels by 
qualified physicians is limited by the physicians' other professional 
obligations and a reluctance to devote time to this program for a 
number of reasons, including the compensation rate cap established by 
the Act (42 U.S.C. 7385o(d)(2)(B)).
    The Physician Panels' review process is labor intensive; each 
physician is required to review all materials relating to the 
application. All panel members meet in conference, in person or by 
teleconference, in order to discuss the application and arrive at a 
determination agreed to by a majority of the members of the panel.
    Today's rule permits a Physician Panel to be composed of a single 
qualified physician. Permitting single-physician panels will have the 
immediate effect of increasing the number of panels available to review 
completed applications. Single-physician panels will also simplify 
logistics by largely eliminating the time expended in coordinating and 
attending conferences, teleconferences, or meetings (though any panel 
physician is still free to consult with other appointed

[[Page 13710]]

physicians, Office of Worker Advocacy physicians, or other competent 
health care professionals, in accordance with DOE's regulations, to 
discuss assigned applications).
    Today's rule also requires that negative determinations issued by a 
single-physician panel be reviewed independently by an additional 
single-physician panel. If the second single-physician panel issues a 
negative opinion, the Program Office accepts the two negative results. 
If the second single-physician panel issues a positive opinion, the 
case is reviewed independently by a third single-physician panel. The 
Program Office accepts the opinion of the majority of the three single-
physician panels. Reexamination of an initial single-physician panel 
negative opinion assures that no application will receive a final 
negative determination based on the opinion of a single physician. DOE 
believes the use of single-physician panels coupled with a 
reexamination of single-physician panel negative determinations by 
additional single-physician panels will significantly increase the 
number of applications that can be reviewed by panels in a given time 
frame, while at the same time ensuring that this procedural change does 
not disadvantage applicants. Moreover, in DOE's experience, the usual 
time frame for providing a panel determination has been less than 20 
days from the time of receipt by the panel. In less frequent cases, the 
rule would allow for the panels to request more time.
    Today's rule amends Sec.  852.13 to shorten the time permitted for 
a Physician Panel to make a determination and to submit the 
determination to the Program Office. DOE believes that the increased 
efficiencies of a single-physician panel will permit a more expeditious 
review of the application.
    Today's rule will apply to all applications processed under part D 
of the EEOICPA. Cases that are presently being reviewed by three-
physician panels will proceed to a determination by the panels as 
assigned. Cases assigned after the effective date of this rule will be 
assigned to single-physician panels or three-physician as determined by 
the Program Office.

II. Section by Section Analysis

    The definition of ``Physician Panel'' is revised to permit a single 
physician to constitute a ``panel'' for the purpose of determining 
whether a death or illness arose out of and in the course of employment 
by a DOE contractor and exposure to a toxic substance at a DOE facility 
under Sec.  852.8. Previously, ``Physician Panel'' was defined as ``a 
group of three physicians. * * *'' This formulation proved to be 
burdensome, too resource-intensive and unnecessary for a thorough 
review of applications for assistance. Analyzing an application for 
assistance and issuing a determination under Sec.  852.8 can be 
performed efficiently and thoroughly by a single physician. The 
definition adopted today preserves DOE's discretion to convene three-
physician panels. Nevertheless, DOE contemplates that a single-
physician panel will be used in most instances in order to expedite 
processing of the applications. DOE also has modified the definition of 
``Physician Panel'' so that it more accurately describes the functions 
of such panels.
    Section 852.16 is amended by adding two new paragraphs (a) and (b) 
that read as follows. ``(a) If a panel composed of a single physician 
issues a negative determination, the negative determination is 
considered an initial opinion and the Program Office must direct an 
additional single-physician panel to review the application and issue 
an independent opinion. If the second single-physician panel issues a 
negative determination, the Program Offices considers the opinions as a 
negative determination by the Physician Panel for purposes of Sec.  
852.17(a) of this part. (b) If a second single-physician panel issues a 
positive opinion, the Program Office must direct an additional single-
physician panel to review the application and issue an independent 
opinion. The Program Office reviews the three opinions and considers 
the majority of the three opinions as the determination by the 
Physician Panel for purposes of Sec.  852.17(a) of this part.'' The 
independent reviews must occur before the Program Office can accept a 
negative determination under Sec.  852.17. The entire text of the 
original Sec.  852.16 is unchanged, but has been redesignated as 
paragraph (c).
    Section 852.11(b) is amended by adding the phrase, ``If a Physician 
Panel has more than one physician,'' to recognize that this paragraph 
does not apply to a panel composed of a single physician. The rule 
continues to allow Physician Panels to be composed of more than one 
physician. DOE thus would retain the discretion to use multi-physician 
panels should it decide do so. DOE might determine that particular 
groups of applications or applications presenting a particular type of 
alleged illness were appropriate for multi-physician panels. Or 
experience might demonstrate that in certain circumstances single-
physician panels were less efficient than three-physician panels. The 
rule preserves DOE's ability to use single-physician and multi-
physician panels in the most efficient, most fair way, based on DOE's 
experience as this program progresses. If DOE uses panels composed of 
more than one physician, the panels will continue to be required to 
meet, discuss the application, and arrive at a determination agreed to 
by a majority. However, a negative determination by panels composed of 
more than one physician would not automatically be submitted for review 
by additional physicians, as will be done with negative determinations 
by panels composed of only one physician.
    Section 852.13 sets a limit on the time that may elapse between the 
submission of the completed application to the Physician Panel and the 
submission of the panel's determination to the Program Office. Today's 
rule adjusts the time for this action from 30 working days to 20 
working days.

III. Regulatory Review

A. Review under Executive Order 12866

    This regulatory action has been determined to be a ``significant 
regulatory action'' under Executive Order 12866, Regulatory Planning 
and Review. See 58 FR 51735 (October 4, 1993). Accordingly, today's 
action was subject to review under the Executive Order by the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget.

B. Review Under the Paperwork Reduction Act

    No new information collection requirements subject to the Paperwork 
Reduction Act, 44 U.S.C. 501 et seq. are imposed by today's regulatory 
action.

C. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism'' (64 FR 43255, August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. Agencies are required to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and carefully assess 
the necessity for such actions. The Executive Order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications. On March 14, 2000, DOE 
published a statement of policy

[[Page 13711]]

describing the intergovernmental consultation process it will follow in 
the development of such regulations (65 FR 13735). DOE has examined 
today's rule and has determined that it does not preempt State law and 
does not have a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. No further action is required by Executive Order 13132.

D. Review Under the National Environmental Policy Act

    DOE has concluded that today's rule falls into a class of actions 
that would not individually or cumulatively have a significant impact 
on the human environment, as determined by DOE's regulations 
implementing the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.). Specifically, today's amendment to the Physician Panel 
procedures is covered under the Categorical Exclusion for rulemakings 
that are strictly procedural in paragraph A6 of appendix A to subpart 
D, 10 CFR part 1021. Accordingly, neither an environmental assessment 
nor an environmental impact statement is required.

E. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 requires each 
agency to prepare a written assessment of the effects of any Federal 
mandate in a proposed or final rule that may result in the expenditure 
by State, local, and tribal governments and the private sector, of $100 
million in any single year. DOE has determined that today's regulatory 
action does not impose a Federal mandate on State, local, or tribal 
governments or on the private sector.

F. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., directs 
agencies to prepare a regulatory flexibility analysis whenever an 
agency is required to publish a general notice of proposed rulemaking 
for a rule. DOE has determined that today's rule is procedural and is 
not subject to prior notice and opportunity for public comment. In 
accordance with 5 U.S.C. 604(a), no regulatory flexibility analysis has 
been prepared for today's rule.

G. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4729, February 7, 1996), imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this rule meets the relevant standards of Executive 
Order 12988.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This rule would not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

I. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed 
today's notice under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

J. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), requires Federal agencies to prepare and submit 
to OIRA, a Statement of Energy Effects for any proposed significant 
energy action. A ``significant energy action'' is defined as any action 
by an agency that promulgated or is expected to lead to promulgation of 
a final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. Today's regulatory 
action is not a significant energy action. Accordingly, DOE has not 
prepared a Statement of Energy Effects.

K. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's rule. The report will state that it 
has been determined that the rule is not a ``major rule'' as defined by 
5 U.S.C. 804(2).

List of Subjects in 10 CFR Part 852

    Administrative practice and procedure, Government contracts, 
Hazardous substances, Workers' compensation.

    Issued in Washington, DC, on March 17, 2004.
Robert G. Card,
Under Secretary for Energy, Science and Environment.

0
For the reasons set forth in the preamble, 10 CFR part 852 is amended 
as follows:

PART 852--GUIDELINES FOR PHYSICIAN PANEL DETERMINATIONS ON WORKER 
REQUESTS FOR ASSISTANCE IN FILING FOR STATE WORKER'S COMPENSATION 
BENEFITS

0
1. The authority citation for part 852 continues to read as follows:


[[Page 13712]]


    Authority: 42 U.S.C. 7384, et seq.; 42 U.S.C. 2201 and 7101, et 
seq.; 50 U.S.C. 2401 et seq.


0
2. Section 852.2 is amended by revising the definition of the term 
``Physician Panel'' to read as follows:


Sec.  852.2  What are the definitions of terms used in this part?

* * * * *
    Physician panel means one or more physicians (as determined by the 
Program Office), who are appointed by the Secretary of Health and Human 
Services, pursuant to part D of the Act, to evaluate applications of 
DOE contractor employees, under the procedures and requirements of this 
part.
* * * * *

0
3. Section 852.11 is amended by revising paragraph (b) as follows:


Sec.  852.11  How is a Physician Panel to carry out its deliberations 
and arrive at a determination?

* * * * *
    (b) If a Physician Panel has more than one physician, all panel 
members meet in conference, in person, or by teleconference in order to 
discuss the application and arrive at a determination agreed to by a 
majority of the members of the Physician Panel.
* * * * *

0
4. Section 852.13 is amended by revising paragraph (a) as follows:


Sec.  852.13  When must a Physician Panel issue its determination?

    (a) A Physician Panel must submit its determination and findings to 
the Program Office within 20 working days of the time that panel 
member(s) have received the complete application for review from the 
Program Office.
* * * * *

0
5. Section 852.16 is revised to read as follows:


Sec.  852.16  When may the Program Office ask a Physician Panel to 
reexamine an application that has undergone prior Physician Panel 
review?

    (a) If a panel composed of a single physician issues a negative 
determination, the negative determination is considered an initial 
opinion and the Program Office must direct an additional single-
physician panel to review the application and issue an independent 
opinion. If the second single-physician panel issues a negative 
determination, the Program Offices considers the opinions as a negative 
determination by the Physician Panel for purposes of Sec.  852.17(a) of 
this part.
    (b) If a second single-physician panel issues a positive opinion, 
the Program Office must direct an additional single-physician panel to 
review the application and issue an independent opinion. The Program 
Office reviews the three opinions and considers the majority of the 
three opinions as the determination by the Physician Panel for purposes 
of Sec.  852.17(a) of this part.
    (c) The Program Office may direct the original Physician Panel or a 
different Physician Panel to reexamine an application that has 
undergone prior Physician Panel review if:
    (1) There is significant evidence contrary to the panel 
determination;
    (2) The Program Office obtains new information the consideration of 
which would be reasonably likely to result in a different 
determination;
    (3) The Program Office becomes aware of a real or potential 
conflict of interest of a member of the original panel in relation to 
the application under review; or
    (4) Reexamination is necessary to ensure consistency among panels.

[FR Doc. 04-6555 Filed 3-23-04; 8:45 am]
BILLING CODE 6450-01-P