[Federal Register Volume 89, Number 136 (Tuesday, July 16, 2024)]
[Rules and Regulations]
[Pages 57730-57731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15512]


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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Part 30

RIN 1240-AA19


Claims for Compensation Under the Energy Employees Occupational 
Illness Compensation Program Act

AGENCY: Office of Workers' Compensation Programs, Department of Labor.

ACTION: Final rule.

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SUMMARY: The Office of Workers' Compensation Programs (OWCP) is 
publishing this final rule to update its criteria for establishing 
beryllium sensitivity. This change brings OWCP's regulations into 
alignment with a statutory provision that was enacted as part of the 
National Defense Authorization Act for Fiscal Year 2024 on December 22, 
2023. The new provision provides an additional way by which both 
previously ineligible and new claimants can establish beryllium 
sensitivity due to occupational exposure to beryllium.

DATES: This final rule is effective on July 16, 2024.

FOR FURTHER INFORMATION CONTACT: Rachel D. Pond, Director, Division of 
Energy Employees Occupational Illness Compensation, Office of Workers' 
Compensation Programs by mail at U.S. Department of Labor, Room C-3510, 
200 Constitution Avenue NW, Washington, DC 20210; by email at [email protected] (please put ``RIN 1240-AA19'' in the subject line); or 
by telephone at 202-693-0081 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: Part B of the Energy Employees Occupational 
Illness Compensation Program Act (EEOICPA), 42 U.S.C. 7384 et seq., 
provides uniform lump-sum payments and medical benefits to covered 
employees or, where applicable, to their survivors of the Department of 
Energy (DOE), its predecessor agencies and certain of its vendors, 
contractors and subcontractors who were diagnosed with a radiogenic 
cancer, chronic beryllium disease, beryllium sensitivity or chronic 
silicosis, as a result of exposure to radiation, beryllium, or silica 
while employed at covered facilities. Part B of EEOICPA also provides 
smaller uniform lump-sum payments and medical benefits to individuals 
found eligible by the Department of Justice for an award under section 
5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. 2210 
(note), or, where applicable, to their survivors. Part E of EEOICPA 
provides variable lump-sum payments (based on a worker's permanent 
impairment and/or qualifying calendar years of established wage-loss) 
and medical benefits for covered DOE contractor employees and, where 
applicable, provides variable lump-sum payments to survivors of such 
employees (based on a worker's death due to a covered illness and any 
qualifying calendar years of established wage-loss). Part E also 
provides these same payments and benefits to uranium miners, millers 
and ore transporters covered by section 5 of RECA and, where 
applicable, to survivors of such employees.
    A claimant who successfully establishes a claim under Part B for 
beryllium sensitivity is eligible for medical monitoring (including all 
tests for chronic beryllium disease), treatment and therapy for this 
illness effective on the date of filing. Previously, a claimant could 
establish beryllium sensitivity under Part B by presenting one abnormal 
beryllium lymphocyte proliferation test (BeLPT) that was performed on 
blood or lung lavage cells. Section 5501(b) of Public Law 118-31, the 
National Defense Authorization Act for Fiscal Year 2024, amended 
section 7384l(8)(A) of EEOICPA to provide that beryllium sensitivity 
can now also be established by submitting three borderline BeLPTs 
performed on blood cells over a period of three years.
    OWCP has already aligned its case adjudication procedures with this 
new statutory provision by issuing EEOICPA Bulletin No. 24-01 on 
January 30, 2024. This final rule will also bring OWCP's regulations 
into conformance with both the above amendment to EEOICPA and its 
procedures. Specifically, OWCP is amending Sec. Sec.  30.5(h) and 
(p)(1), 30.205(b)(1) and 30.207(b) of 20 CFR part 30 by adding new text 
to incorporate the recently enacted amendment to EEOICPA, that an 
alternative to establishing beryllium sensitivity can be by submitting 
three borderline beryllium LPTs performed on blood cells over a period 
of 3 years.
    OWCP's implementation of this action without opportunity for public 
comment is based on the good cause exception in 5 U.S.C. 553(b)(B), in 
that seeking public comment is impracticable, unnecessary, and contrary 
to the public interest. Pursuant to 5 U.S.C. 553(d)(3), an agency may 
``for good cause found'' also dispense with the 30-day delay in the 
effective date of a rule. OWCP has determined that seeking public 
comment is both impracticable and unnecessary because it has no 
discretion to change an entitlement criterion enacted by Congress. 
Thus, this rule merely aligns the regulations with the self-
effectuating changes provided by the National Defense Authorization Act 
for Fiscal Year 2024. Furthermore, OWCP finds that seeking public 
comment and delaying this rule's effective date would be contrary to 
the public interest because it would cause confusion regarding the 
availability of benefits to newly eligible claimants seeking 
compensation for beryllium sensitivity under Part B of EEOICPA if the 
four sections listed above are not updated expeditiously to reflect 
their eligibility.

Executive Orders 12866: Regulatory Planning and Review; Executive Order 
14094: Modernizing Regulatory Review; and Executive Order 13563: 
Improving Regulation and Regulatory Review

    The Office of Management and Budget has determined that this rule 
is not a significant regulatory action under Executive Order 12866, and 
a Regulatory Impact Analysis is not required. No action is warranted 
for Executive Order 13563 as the rule is not significant and no 
Regulatory Impact Analysis is required.

[[Page 57731]]

Regulatory Flexibility Act of 1980

    An analysis under the Regulatory Flexibility Act of 1980, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (RFA), 5 U.S.C. 601-612, is not needed for this rule. The RFA 
imposes certain requirements on Federal agency rules that are subject 
to the notice and comment requirements of 5 U.S.C. 553(b). OWCP is 
invoking the good cause exception to notice-and-comment procedures for 
this final rule. Accordingly, OWCP is not required to either certify 
that the final rule would not have a significant economic impact on a 
substantial number of small entities or conduct a regulatory 
flexibility analysis.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
requires that OWCP consider the impact of paperwork and other 
information collection burdens imposed on the public. OWCP has 
determined that this final rule does not require any collection of 
information or alter any existing information collections.

Unfunded Mandates Reform Act of 1995 and Executive Order 13132

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

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This regulatory action does not have Tribal implications, as 
specified in Executive Order 13175, 65 FR 67249 (Nov. 9, 2000), which 
focuses on policy directives that burden or otherwise interfere with 
Tribal self-government and sovereignty by limiting the administrative 
discretion of Tribal governments. OWCP has determined that the final 
rule does not have substantial direct effects on Tribal governments, on 
the relationship between the Federal Government and the Indian Tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian Tribes. Because this rulemaking does not 
in any way impinge on an aspect of Tribal self-government or 
sovereignty, Executive Order 13175 does not apply to this action.

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

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

Executive Order 13211: Energy Supply, Distribution, or Use

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

List of Subjects in 20 CFR Part 30

    Administrative practice and procedure, Cancer, Claims, Kidney 
diseases, Leukemia, Lung diseases, Miners, Radioactive materials, Tort 
claims, Underground mining, Uranium, Workers' compensation.

Text of the Rule

    For the reasons stated in the preamble, OWCP amends 20 CFR part 30 
as follows:

PART 30--CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES 
OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED

0
1. The authority citation for part 30 continues to read as follows:

    Authority:  5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 
7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR 
77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 10-
2009, 74 FR 58834.


0
2. Amend Sec.  30.5 by revising paragraphs (h) and (p)(1) to read as 
follows:


Sec.  30.5  What are the definitions used in this part?

* * * * *
    (h) Beryllium sensitization or sensitivity means that the 
individual has either:
    (1) An abnormal beryllium lymphocyte proliferation test (LPT) 
performed on either blood or lung lavage cells; or
    (2) Three borderline beryllium LPTs performed on blood cells over a 
period of 3 years.
* * * * *
    (p) * * *
    (1) Beryllium sensitivity as established by either:
    (i) An abnormal beryllium LPT performed on either blood or lung 
lavage cells; or
    (ii) Three borderline beryllium LPTs performed on blood cells over 
a period of 3 years.
* * * * *

0
3. Amend Sec.  30.205 by revising paragraph (b)(1) to read as follows:


Sec.  30.205  What are the criteria for eligibility for benefits 
relating to beryllium illnesses covered under Part B of EEOICPA?

* * * * *
    (b) * * *
    (1) Beryllium sensitivity as established by either:
    (i) An abnormal beryllium LPT performed on either blood or lung 
lavage cells; or
    (ii) Three borderline beryllium LPTs performed on blood cells over 
a period of 3 years.
* * * * *

0
4. Amend Sec.  30.207 by revising paragraph (b) to read as follows:


Sec.  30.207  How does a claimant prove a diagnosis of a beryllium 
disease covered under Part B?

* * * * *
    (b) Beryllium sensitivity or sensitization is established with 
either:
    (1) An abnormal beryllium LPT performed on either blood or lung 
lavage cells; or
    (2) Three borderline beryllium LPTs performed on blood cells over a 
period of 3 years.
* * * * *

    Signed at Washington, DC, this tenth day of July 2024.
Christopher J. Godfrey,
Director, Office of Workers' Compensation Programs.
[FR Doc. 2024-15512 Filed 7-15-24; 8:45 am]
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