[Federal Register Volume 75, Number 22 (Wednesday, February 3, 2010)]
[Rules and Regulations]
[Pages 5499-5502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1925]


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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Part 10

RIN 1215-AB66


Claims for Compensation; Death Gratuity Under the Federal 
Employees' Compensation Act

AGENCY: Office of Workers' Compensation Programs, Labor.

ACTION: Final rule.

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SUMMARY: On August 18, 2009, the Department of Labor (DOL) published an 
interim final rule in order to administer the death gratuity created by 
section 1105 of the National Defense Authorization Act for Fiscal Year 
2008, Public Law 110-181. Section 1105 provides a death gratuity 
payment to eligible survivors of federal employees and non-appropriated 
fund instrumentality employees (NAFI employees) who die of injuries 
incurred in connection with service with an Armed Force in a 
contingency operation.
    Section 1105 amended the Federal Employees' Compensation Act (FECA) 
to add a new section, designated as section 8102a. The Secretary of 
Labor has the authority to administer and to decide all questions 
arising under FECA. 5 U.S.C. 8145. FECA authorizes the Secretary to 
prescribe rules and regulations necessary for the administration and 
enforcement of the Act. 5 U.S.C. 8149. The Secretary has delegated the 
authority provided by 5 U.S.C. 8145 and 8149 to the Director of the 
Office of Workers' Compensation Programs (OWCP), who is responsible for 
the administration and implementation of FECA. 20 CFR 1.1. Thus OWCP 
will administer the adjudication of claims and the payment of the death 
gratuity under new section 8102a.
    At the same time the DOL published the interim final rule, it also 
invited written comments and advice from interested parties regarding 
possible changes to those regulations. This document amends the interim 
final rule based on the single comment received by the DOL.

DATES: Effective Date: This final rule is effective on April 5, 2010. 
Applicability dates: This final rule will apply to all claims filed on 
or after April 5, 2010. This rule will also apply to any claims that 
are pending on April 5, 2010.

FOR FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of 
Workers' Compensation Programs, U.S. Department of Labor, Room S-3524, 
200 Constitution Avenue, NW., Washington, DC 20210, Telephone: 202-693-
0031 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: The Department of Labor's (DOL) interim 
final rule governing the administration of the death gratuity created 
by section 1105 of the National Defense Authorization Act for Fiscal 
Year 2008, Public Law 110-181, by the DOL was published in the Federal 
Register on August 18, 2009 (74 FR 41617). The rule took effect 
immediately and included a 60-day period for comment. During the 
comment period, DOL received one timely comment from an individual. 
This comment addressed the issue of timeliness for retroactive claims 
under Sec.  10.912, as well as some comments regarding what forms 
should be used under Sec. Sec.  10.903 and 10.911. The DOL's section-
by-section analysis of the timely comment it received is set forth 
below.

I. Comments on the Interim Final Rule

    The section numbers used in the headings of the following analysis 
are those that were used in the interim final rule.

Sections 10.903 and 10.911

    The commenter suggested that the interim final rule and forms be 
amended to indicate that, for retroactive claims under 5 U.S.C. 8102a, 
claimants would not need to submit the new forms CA-41 and CA-42 as 
other forms applied during the period prior to enactment of the death 
gratuity benefit on January 28, 2008 and that those forms be amended 
accordingly. The commenter also suggested that, in the alternative, the 
regulations could be amended at Sec. Sec.  10.903 and 10.911 to 
reference that forms CA-5 and CA-6, which are used for death benefit 
claims under the FECA, could be used to file for the new death gratuity 
benefit. This comment, however, misconstrues the relationship between 
death benefits under the FECA and the new death gratuity benefit. 
Specifically, the death gratuity is a new benefit that did not exist 
prior to January 28, 2008, which involves different burdens of proof, 
different information, and potentially different beneficiaries than a 
claim for death benefits under the FECA. The new information sought in 
the new forms is required so that the DOL may make a proper 
determination as to eligibility under the new death gratuity benefit. 
Therefore, the suggested changes to Sec. Sec.  10.903 and 10.911 have 
not been made.

Section 10.912

    The commenter also suggested that Sec.  10.912 be modified to 
indicate that a retroactive claim for the new death gratuity benefit is 
timely if a death benefit claim is filed for the same death within the 
three-year time limit for filing a FECA claim. The DOL notes that the 
regulation specifically covers such a situation, in that it states that 
a claim for the new death gratuity benefit is timely if it is filed 
within the time limits specified by the FECA pursuant to 5 U.S.C. 8122. 
That section of the FECA states that a claim for benefits is timely if 
it is filed within three years of the date of injury or death. That 
section further states that a claim for disability that is timely filed 
will be a timely filing for a death benefit based on the same injury. 
It is the position of the DOL that this section covers the 
circumstances noted by the commenter, and that the timely filing of a 
claim for death benefits under the FECA is a timely filing for a 
retroactive death gratuity benefit. Furthermore, the DOL notes that 
section 8122 of the FECA also states that a claim is also timely if an 
immediate supervisor had knowledge of an injury

[[Page 5500]]

within 30 days from the date of injury, which will cover the vast 
majority of retroactive death gratuity claims under section 8102a.
    The commenter's contention that there is potential confusion 
regarding the time limitations for a retroactive death gratuity 
benefit, however, is well taken. The DOL notes that, since it would 
have been impossible to file a claim for a benefit that did not exist, 
Congress could not have intended for the statute of limitations to 
begin to run from the date of death for retroactive death gratuity 
claims. Furthermore, as DOL had no procedures for the filing of 
retroactive death gratuity claims prior to the enactment of the Interim 
Final Rule on August 18, 2009, the three-year time limitation for 
filing a retroactive death gratuity claim could not have begun to run 
until that date. Accordingly, the DOL has amended Sec.  10.912(a) by 
adding a sentence at the end of that subsection to clarify when the 
statute of limitations started running for retroactive claims for the 
FECA death gratuity benefit. This section also has been slightly 
renumbered.

II. Administrative Requirements for the Rulemaking

Executive Order 12866

    This regulatory action constitutes a ``significant'' rule within 
the meaning of Executive Order 12866 in that any executive agency could 
be required to participate in the development of claims for benefits 
under this regulatory action. The Department believes, however, that 
this regulatory action will not have a significant economic impact on 
the economy, or any person or organization subject to the changes, in 
that the annual amount of benefits paid under this section is expected 
to be approximately one million dollars. The changes have been reviewed 
by the Office of Management and Budget (OMB) for consistency with the 
President's priorities and the principles set forth in Executive Order 
12866.

Regulatory Flexibility Act of 1980

    This rule has been reviewed in accordance with the Regulatory 
Flexibility Act of 1980, as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 601-612. The Department has 
concluded that the rule does not involve regulatory and informational 
requirements regarding businesses, organizations, and governmental 
jurisdictions subject to regulation.

Paperwork Reduction Act (PRA)

    This rule contains information collection requirements subject to 
the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501 et seq. The 
requirements set out in Sec. Sec.  10.909, 10.911, 10.912, 10.914 and 
10.915 of this rule were both submitted to and approved by the OMB 
under the OMB Control Number 1215-0206 (expires May 31, 2010).

The National Environmental Policy Act of 1969

    The Department certifies that this rule has been assessed in 
accordance with the requirements of the National Environmental Policy 
Act of 1969, 42 U.S.C. 4321 et seq. (NEPA). The Department concludes 
that NEPA requirements do not apply to this rulemaking because this 
rule includes no provisions impacting the maintenance, preservation, or 
enhancement of a healthful environment.

Federal Regulations and Policies on Families

    The Department has reviewed this rule in accordance with the 
requirements of section 654 of the Treasury and General Government 
Appropriations Act of 1999, 5 U.S.C. 601 note. These regulations were 
not found to have a potential negative affect on family well-being as 
it is defined thereunder.

Executive Order 13045: Protection of Children From Environmental Health 
Risks and Safety Risks

    The Department certifies that this rule has been assessed regarding 
environmental health risks and safety risks that may disproportionately 
affect children. These were not found to have a potential negative 
affect on the health or safety of children.

Unfunded Mandates Reform Act of 1995 and Executive Order 13132

    The Department has reviewed this rule in accordance with the 
requirements of Exec. Order No. 13132, 64 FR 43225 (Aug. 10, 1999), and 
the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and 
has found no potential or substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. As there is no Federal mandate contained herein that 
could result in increased expenditures by State, local, or tribal 
governments or by the private sector, the Department has not prepared a 
budgetary impact statement.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    The Department has reviewed this rule in accordance with Exec. 
Order 13175, 65 FR 67,249 (Nov. 9, 2000), and has determined that it 
does not have ``tribal implications.'' The rule does not ``have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes.''

Executive Order 12630: Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    The Department has reviewed this rule in accordance with Exec. 
Order 12630, 53 FR 8859 (Mar. 15, 1988), and has determined that it 
does not contain any ``policies that have takings implications'' in 
regard to the ``licensing, permitting, or other condition requirements 
or limitations on private property use, or that require dedications or 
exactions from owners of private property.''

Executive Order 13211: Energy Supply, Distribution, or Use

    The Department has reviewed this regulation and has determined that 
the provisions of Exec. Order 13211, 66 FR 28355 (May 18, 2001), are 
not applicable as there are no direct or implied effects on energy 
supply, distribution, or use.

The Privacy Act of 1974, 5 U.S.C. 552a, as Amended

    While claims filed under section 8102a of the FECA will be a 
separate claim file and bear a separate claim number from any other 
FECA claim file maintained on the covered employee, the collection and 
release of these files will be conducted under the provisions of the 
Privacy Act and the published systems of record notices for FECA claims 
files. Therefore, the Department has determined that this rule will 
require a minor revision of the current Privacy Act System of Records, 
DOL/GOVT-1, Office of Workers' Compensation Programs, Federal 
Employees' Compensation Act File, 67 FR 16826 (April 8, 2002).

Clarity of This Regulation

    Executive Order 12866, 58 FR 51735 (September 30, 1993), and the 
President's memorandum of June 1, 1998, require each agency to write 
all rules in plain language. The Department

[[Page 5501]]

invites comments on how to make this rule easier to understand.


List of Subjects in 20 CFR Part 10

    Administrative practice and procedure, Claims, Death gratuity, 
Government employees, Labor, Workers' compensation, NAFI.

Text of the Rule

0
For the reasons set forth in the preamble, the interim final rule, 
which added subpart J to 20 CFR Part 10 and which was published at 74 
FR 41617 on August 18, 2009, is adopted as a final rule with the 
following change:

PART 10--CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES' 
COMPENSATION ACT, AS AMENDED

Subpart J--Death Gratuity

0
1. The authority citation for Part 10, Subpart J continues to read as 
follows:

    Authority:  5 U.S.C. 8102a.


0
2. Revise Sec.  10.912 to read as follows:


Sec.  10.912  What is required to establish a claim for the death 
gratuity payment?

    Claim form CA-41 describes the basic requirements. Much of the 
required information will be provided by the employing agency when it 
completes notification form CA-42. However, the claimant bears the 
burden of proof to ensure that OWCP has the evidence needed to 
establish the claim. OWCP may send any request for additional evidence 
to the claimant and to his or her representative, if any. Evidence 
should be submitted in writing. The evidence submitted must be 
reliable, probative, and substantial. Each claim for the death gratuity 
must establish the following before OWCP can pay the gratuity:
    (a) That the claim was filed within the time limits specified by 
the FECA, as prescribed in 5 U.S.C. 8122 and this part. Timeliness is 
based on the date that the claimant filed the claim for the death 
gratuity under Sec.  10.911, not the date the employing agency 
submitted form CA-42. As procedures for accepting and paying 
retroactive claims were not available prior to the publication of the 
interim final rule, the applicable statute of limitations began to run 
for a retroactive payment under this subpart on August 18, 2009.
    (b) That the injured person, at the time he or she incurred the 
injury or disease, was an employee of the United States as defined in 5 
U.S.C. 8101(1) and Sec.  10.5(h) of this part, or a non-appropriated 
fund instrumentality employee, as defined in 10 U.S.C. 1587(a)(1).
    (c) That the injury or disease occurred and that the employee's 
death was causally related to that injury or disease. The death 
certificate of the employee must be provided. Often, the employing 
agency will provide the death certificate and any needed medical 
documentation. OWCP may request from the claimant any additional 
documentation that may be needed to establish the claim.
    (d) That the employee incurred the injury or disease in connection 
with the employee's service with an Armed Force in a contingency 
operation. This will be determined from evidence provided by the 
employing agency or otherwise obtained by OWCP and from any evidence 
provided by the claimant.
    (1) Section 8102a defines ``contingency operation'' to include 
humanitarian operations, peacekeeping operations, and similar 
operations. (``Similar operations'' will be determined by OWCP.)
    (i) A ``contingency operation'' is defined by 10 U.S.C. 101(a)(13) 
as a military operation that--
    (A) Is designated by the Secretary of Defense as an operation in 
which members of the armed forces are or may become involved in 
military actions, operations, or hostilities against an enemy of the 
United States or against an opposing military force; or
    (B) Results in the call or order to, or retention on, active duty 
of members of the uniformed services under section 688, 12301(a), 
12302, 12304, 12305, or 12406 of [Title 10], chapter 15 of [Title 10], 
or any other provision of law during a war or during a national 
emergency declared by the President or Congress.
    (ii) A ``humanitarian or peacekeeping operation'' is defined by 10 
U.S.C. 2302(8) as a military operation in support of the provision of 
humanitarian or foreign disaster assistance or in support of a 
peacekeeping operation under chapter VI or VII of the Charter of the 
United Nations. The term does not include routine training, force 
rotation, or stationing.
    (iii) ``Humanitarian assistance'' is defined by 10 U.S.C. 401(e) to 
mean medical, surgical, dental, and veterinary care provided in areas 
of a country that are rural or are underserved by medical, surgical, 
dental, and veterinary professionals, respectively, including 
education, training, and technical assistance related to the care 
provided; construction of rudimentary surface transportation systems; 
well drilling and construction of basic sanitation facilities; 
rudimentary construction and repair of public facilities.
    (2) A contingency operation may take place within the United States 
or abroad. However, operations of the National Guard are only 
considered ``contingency operations'' for purposes of this subpart when 
the President, Secretary of the Army, or Secretary of the Air Force 
calls the members of the National Guard into service. A ``contingency 
operation'' does not include operations of the National Guard when 
called into service by a Governor of a State.
    (3) To show that the injury or disease was incurred ``in connection 
with'' the employee's service with an Armed Force in a contingency 
operation, the claim must show that the employee incurred the injury or 
disease while in the performance of duty as that phrase is defined for 
the purposes of otherwise awarding benefits under FECA.
    (4)(i) When the contingency operation occurs outside of the United 
States, OWCP will find that an employee's injury or disease was 
incurred ``in connection with'' the employee's service with an Armed 
Force in a contingency operation if the employee incurred the injury or 
disease while performing assignments in the same region as the 
operation, unless there is conclusive evidence that the employee's 
service was not supporting the Armed Force's operation.
    (ii) Economic or social development projects, including service on 
Provincial Reconstruction Teams, undertaken by covered employees in 
regions where an Armed Force is engaged in a contingency operation will 
be considered to be supporting the Armed Force's operation.
    (5) To show that an employee's injury or disease was incurred ``in 
connection with'' the employee's service with an Armed Force in a 
contingency operation, the claimant will be required to establish that 
the employee's service was supporting the Armed Force's operation. The 
death gratuity does not cover federal employees who are performing 
service within the United States that is not supporting activity being 
performed by an Armed Force.
    (e) The claimant must establish his or her relationship to the 
deceased employee so that OWCP can determine whether the claimant is 
the survivor entitled to receive the death gratuity

[[Page 5502]]

payment according to the order of precedence prescribed in Sec.  
10.907.

Shelby Hallmark,
Director, Office of Workers' Compensation Programs.
[FR Doc. 2010-1925 Filed 2-2-10; 8:45 am]
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