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Code · REGISTER · 2006-12-29 · Department of Veterans Affairs · Notices

Notices. Notice with request for comments

108,618 words·~494 min read·/register/2006/12/29/06-9849

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 6720-01-M DEPARTMENT OF VETERANS AFFAIRS Disciplinary Appeals Board Panel AGENCY: Department of Veterans Affairs ACTION: Notice with request for comments. SUMMARY: Section 203 of the Department of Veterans Affairs Health Care Personnel Act of 1991 (Pub. L.102-40), dated May 7, 1991, revised the disciplinary grievance and appeal procedures for employees appointed under 38 U.S.C. 7401(1). It also required the periodic designation of employees of the Department who are qualified to serve on Disciplinary Appeals Boards.
These employees constitute the Disciplinary Appeals Board Panel from which Board members in a case are appointed. This notice announces that the roster of employees on the Panel is available for review and comment. Employees, employee organizations, and other interested parties shall be provided, without charge, a list of the names of employees on the Panel upon request and may submit comments concerning the suitability for service on the Panel of any employee whose name is on the list.
DATES: Names that appear on the Panel may be selected to serve on a Board or as a grievance examiner after January 29, 2007. ADDRESSES: Requests for the list of names of employees on the Panel and written comments may be directed to: Secretary of Veterans Affairs (051), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Requests and comments may also be faxed to
(202)273-9776. FOR FURTHER INFORMATION CONTACT: Latoya Smith, Employee Relations and Performance Management Service, Office of Human Resources Management and Labor Relations, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Ms. Smith may be reached at
(202)273-9935. SUPPLEMENTARY INFORMATION: Pub. L. 102-40 requires that the availability of the roster be posted in the **Federal Register** periodically, and not less than annually. Dated: December 18, 2006. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. [FR Doc. E6-22341 Filed 12-28-06; 8:45 am] BILLING CODE 8320-01-P 71 250 Friday, December 29, 2006 Rules and Regulations Part II Department of Labor Office of Workers' Compensation Programs 20 CFR Parts 1 and 30 Performance of Functions; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act of 2000, as Amended; Final Rule DEPARTMENT OF LABOR Office of Workers' Compensation Programs 20 CFR Parts 1 and 30 RIN 1215-AB51 Performance of Functions; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act of 2000, as Amended AGENCY: Office of Workers' Compensation Programs, Employment Standards Administration, Labor. ACTION: Final rule. SUMMARY: On June 8, 2005, the Department of Labor
(DOL)published interim final regulations that govern its responsibilities under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act). Part B of the Act provides lump-sum payments of $150,000 and medical benefits to covered employees and, where applicable, to survivors of such employees, of the Department of Energy (DOE), its predecessor agencies and certain of its vendors, contractors and subcontractors. Part B also provides lump-sum payments of $50,000 and medical benefits to individuals found eligible by the Department of Justice
(DOJ)for $100,000 under section 5 of the Radiation Exposure Compensation Act
(RECA)and, where applicable, to their survivors. Part E of the Act provides variable lump-sum payments (based on a worker's permanent impairment and/or calendar years of qualifying 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 calendar years of qualifying 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. At the same time the Department published the interim final regulations, it also invited written comments and advice from interested parties regarding possible changes to those regulations. This document amends the interim final regulations based on comments that the Department received. DATES: *Effective Date:* This rule will be effective on February 27, 2007, and will apply to all claims filed on or after that date. This rule will also apply to any claims that are pending on February 27, 2007. FOR FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of Workers' Compensation Programs, Employment Standards Administration, 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 interim final regulations implementing its responsibilities under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384 *et seq.* ), were published in the **Federal Register** on June 8, 2005 (70 FR 33590). They took effect immediately and included a 60-day period for comment. During the comment period, the Department received 533 timely comments: two joint comments from 39 congressional representatives; two from labor organizations; four from attorneys; four from advocacy groups; one from a lay representative; one from DOE; one from a DOE contractor; and 518 from individuals. The Department also received untimely comments from one physician, one attorney, one advocacy group, the Coconino County (Arizona) Board of Supervisors, one labor organization, the Navajo Nation and 23 individuals; all of the points they raised were also raised by the timely comments. Almost all of the timely comments
(521)addressed the issue of eligibility for survivor benefits under Part E of EEOICPA; 494 of the comments addressed this issue alone. They also addressed a number of other issues, including the administrative claims process used to adjudicate claims under EEOICPA, entitlement qualifications, and the extent of coverage provided under Part E. The Department's section-by-section analysis of the timely comments it received is set forth below (see sections I and II). Some minor changes have been made to the interim final regulations that did not result from any comments. One such change is the addition of new language to § 30.112(b) to recognize that pursuant to § 30.106, entities other than DOE may be verifying alleged periods of employment that claimants have reported to OWCP. A second change is the addition of language to § 30.301(c) clarifying that OWCP will also not issue a subpoena for the testimony of employees of the National Institute for Occupational Safety and Health (NIOSH) or contractors of either OWCP or NIOSH acting in their official capacities with respect to the EEOICPA claims adjudication process. In addition, the existing language of § 30.316(c) has been modified so that a recommended decision on a claim that is pending for more than one year after the date it was reopened for issuance of a new final decision will be considered a final decision on that claim as of that date, and § 30.400(a) has been modified to reflect the current practice of OWCP to pay for medically necessary treatment of a primary cancer in claims where the accepted occupational illness or covered illness is a secondary cancer. When publishing a final rule following a comment period, it is customary to publish only the changes that have been made to the rule; however, in order to be more user-friendly, the Department is publishing the entire rule, including the parts that have not been changed. By doing so, only one document containing all of the regulations and commentary needs to be consulted rather than multiple documents. I. Comments on the Interim Final Regulations The section numbers used in the headings of the following analysis are those that were used in the interim final regulations. Unless otherwise stated, the section numbers in the text of the analysis refer to the numbering used for the final regulations. No comments were received with respect to part 1. Section 30.5 One individual suggested that the definition for the statutory term “Department of Energy facility” be modified to more clearly identify the “list of facilities established by the Department of Energy” referred to in the interim final regulation. To eliminate any confusion with respect to this list, and as suggested by the comment, § 30.5(x) has been amended in this final rule to specify which list of facilities the Department has adopted. Another individual believed that the five-year latency period requirement for specified cancers listed in § 30.5(ff)(5) was “in error” and suggested that it be deleted. However, the latency period requirement is contained within section 7384l(17)(A) of the Act and cannot be modified in these regulations. Therefore, the suggested change was not made. A third individual suggested that § 30.5(gg) be modified to more clearly describe the requirements for eligibility of survivors under Part E. Section 30.5(gg) is only intended to inform readers that survivors must be alive to receive a payment. Because complete descriptions of the requirements for eligibility of survivors under Part B and Part E of EEOICPA already appear at § 30.500, the suggested change is unnecessary and was not made. Sections 30.100, 30.101, 30.102 and 30.103 One attorney pointed out that while employees and survivors can use Forms EE-1 and EE-2 to file their initial claims with OWCP, there was no form provided for filing a claim for an alleged consequential illness or injury. The absence of a specific form for claiming an alleged consequential illness or injury is intentional since in those situations, OWCP would already have all of the necessary factual information that could be requested by a form. Claimants need only submit written “words of claim” to OWCP, together with the type of supporting medical evidence described in §§ 30.207(d), 30.215, 30.222(b), 30.226 or 30.232(c), to file a claim for a consequential illness or injury. Therefore, no new form has been designed and the suggested changes to §§ 30.100 and 30.101 were not made. Two individuals disputed the provision in § 30.101(c) that a survivor must be alive to receive a payment under the Act and noted that if all of the eligible survivors die before payment can be made, no payment can be made to any other individual as the heir of a deceased eligible survivor. However, this result is required under both Parts B and E of EEOICPA pursuant to sections 7384s(e)(1) and 7385s-3(c), which require that survivors under both Part B and Part E must be alive at the time of payment, and cannot be altered by regulation. Therefore, the requested change to § 30.101(c) was not made. Three advocacy groups suggested that the provision in § 30.102 that OWCP will only adjudicate a claim for an increased impairment rating if it is filed at least two years from the date of the last award of impairment benefits is unreasonable and proposed that the waiting period to be reduced to either one year or six months. The claim development process that OWCP uses when it determines a covered Part E employee's minimum impairment rating is necessarily complex and usually takes a considerable amount of time to complete. For example, the medical evidence submitted in support of an alleged rating may not contain all of the information that OWCP will need to determine an impairment rating. OWCP would then have to seek that information from another source, or obtain an impairment evaluation by another physician before it would be able to determine the extent of the alleged permanent impairment based on the evidence in the case record. If claimants were permitted to apply for an increased impairment rating sooner than two years after their prior award for impairment benefits, the claims processing system would inevitably become less efficient and claimants who have not had their initial impairment claims adjudicated and who have not received benefits for their compensable permanent impairments would necessarily have to wait even longer to receive a decision from OWCP. Therefore, in order to maintain an efficient system of adjudication for all claimants and to best use its limited resources, OWCP concludes that the two-year waiting period should remain in place and none of the suggested changes to this section have been adopted. One of these same advocacy groups also noted that while § 30.103 requires claimants to use approved forms when filing claims under Part E of EEOICPA, “the present forms do not allow for claiming diseases other than cancer, berylliosis or silicosis.” On June 20, 2005, the Office of Management and Budget approved new versions of Forms EE-1 and EE-2 that allow claimants to file for all illnesses potentially compensable under Part E. As noted in § 30.103(b), these forms are available on the Internet at *http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm* . Therefore, the suggested change to § 30.103 is unnecessary and has not been made. Section 30.106 One individual questioned whether DOE was in possession of sufficient employment data to enable it to verify alleged periods of employment for “most” claims. OWCP does not dispute that there are a number of facilities for which DOE does not have access to any employment data. However, OWCP has developed a number of alternative methods to be used for verifying alleged employment at those facilities. In acknowledgement of this situation, § 30.106 describes the various alternative methods by which OWCP may seek to verify alleged periods of employment at those facilities for which DOE has no employment data, and no change to this section was made in the final rule. Sections 30.111, 30.113 and 30.114 One individual and two labor organizations questioned the description of the *general* burden of proof that all claimants must meet in order to establish their entitlement to any compensation under either Parts B or E of EEOICPA. Section 30.111(a) describes the general burden of proof that claimants must meet, “[e]xcept where otherwise provided in the Act and these regulations,” with respect to all of the required elements involved in a claim. As one of these labor organizations noted, there are differing burdens of proof between Parts B and E, as well as between different claimed illnesses within a single Part of the Act. This fact, however, does not mean that the description of the *general* burden of proof in § 30.111(a) is incorrect. OWCP is committed to helping claimants meet their burden of proof and is aware that some claimants may have difficulty proving both the presence of and their exposure to a toxic substance at a particular facility under Part E. In an effort to remedy this situation, OWCP is currently developing exposure matrices that will compile information provided by a variety of sources, including DOE, former worker medical survey programs, and epidemiological studies. For all of the DOE facilities, extensive documentation exists covering thousands of toxic materials. The matrices now being developed will be posted on our Web site and will be available to claimants and their representatives. While it is not possible to define precisely in a regulation how these complex matrices will be used in each case, OWCP's procedural guidance documents will provide additional clarity in this regard, and those documents will also be available to the public on our Web site. Nevertheless, it would not be appropriate to relieve claimants of their ultimate obligation to prove their claims, which is a standard requirement of all state and federal workers' compensation programs. Since Part E was intended to substitute for the state workers' compensation benefits that claimants could have sought DOE's assistance in obtaining under former Part D of EEOICPA, OWCP's application of standard workers' compensation principles is appropriate and no changes were made to § 30.111(a). Another individual suggested that OWCP amend § 30.111(c) to state that an affidavit submitted by a claimant is not, in and of itself, sufficient to establish a period of alleged employment. Section 30.111(c) currently states that such affidavits “may be relied on in determining whether a claim meets the requirements of the Act. * * *” However, since § 30.112(b)(3) already makes clear that OWCP may reject a claim when the only evidence of covered employment is a “self-serving affidavit,” the suggested change is unnecessary and was not adopted in the final rule. A third individual suggested that language be added to § 30.111 stating that when OWCP requests a second opinion from a medical specialist, it will only provide such specialist with copies of the “medical” evidence in the case file to review instead of all “relevant” evidence in the file. This suggestion ignores the fact that factual evidence from a case file may be highly relevant ( *e.g.* , evidence of exposure levels, environmental assessments, etc.) to the probative value of the specialist's medical opinion and as a result, the requested change was not made. A third individual requested that § 30.113(a) be changed to indicate that OWCP will accept various types of “electronic” submissions in support of claims for compensation under EEOICPA, while an advocacy group suggested that § 30.113(c) be changed due to its belief that all statements regarding the substance of lost or destroyed factual or medical evidence would be “self-serving” and therefore not acceptable. Both of these provisions have been in effect since the issuance of the first final rule on December 26, 2002, and have not proved problematic in practice. Therefore, the requested changes were not made in this final rule. A fourth individual disagreed with the general requirement in § 30.114 that claims for compensation under EEOICPA be supported with medical evidence that establishes the existence of the alleged occupational illness under Part B or covered illness under Part E. However, these medical requirements are derived from the statutory requirements in the Act itself and cannot be altered through the rulemaking process. Therefore, the requested change to § 30.114 was not made. Section 30.115 Two individuals asserted that application of the dose reconstruction process discussed in § 30.115 of the interim final regulations to Part E cancer claims would be neither just nor fair, and one advocacy group asked how OWCP planned to adjudicate the claims of employees with non-specified cancers (those not listed at § 30.5(ff)) at newly designated Special Exposure Cohort worksites. With respect to the first of these two concerns, the discussion of § 30.213 in the preamble to the interim final rule described the scientific and administrative reasons why OWCP decided to use the existing dose reconstruction process from Part B to adjudicate certain radiogenic cancer claims filed under Part E, and the two commenters have not presented any arguments challenging the underlying bases for that decision. As for the comment regarding OWCP's adjudication of non-specified cancer claims following an administrative addition of a class of employees to the Special Exposure Cohort, this question involves the manner in which the Department of Health and Human Services
(HHS)defines the new class of employees and the unique factual basis for its addition to the Special Exposure Cohort. However, since neither of these matters are within the jurisdiction of OWCP, they cannot be addressed in the context of this rulemaking (see § 30.2(b)). For the above reasons, no changes were made to § 30.115 in the final rule based on these three comments. Section 30.213 OWCP received 19 comments regarding the operation of § 30.213 with respect to the 50 percent compensable level of probability of causation
(PoC)it will use to adjudicate claims for radiogenic cancer under Part E of EEOICPA (three comments were received from advocacy groups, 11 from individuals, two from congressional representatives, one from a lay representative, and two from a single labor organization). These comments requested that OWCP lower the compensability level below the 50 percent level that is used for Part B claims, but gave no scientific or other rationale for setting the compensability level at any particular point below 50 percent. Rather, the commenters base their arguments on the fact that the statutory causation standard for Part E uses language that differs from the language used for Part B. For the reasons set forth below, OWCP has determined that it is more consistent with congressional intent and current science to continue to use HHS's regulations in making the determination required by section 7385s-4(c)(1)(A) of the Act because those regulations provide the only reasonable factual basis upon which OWCP can determine if it is “at least as likely as not” that exposure to radiation at a DOE facility or RECA section 5 facility was a “significant factor in aggravating, contributing to, or causing” radiogenic cancer for which compensation is claimed under Part E. It is clear from the scientific literature that it is not possible to definitively attribute any individual's cancer to any particular cause, and no commenter identified a method of attribution. As noted in Science Panel Report No. 6, *Use of Probability of Causation by the Veterans Administration in the Adjudication of Claims of Injury Due to Ionizing Radiation,* issued by the Committee on Interagency Radiation Research and Policy Coordination of the Office of Science and Technology Policy, Executive Office of the President (August 1988), “[a]nalysis of medical findings cannot separate the ‘radiogenic cases’ from those unrelated to radiation exposure; no ‘biological markers' have yet been identified that can unequivocally point to radiogenic cancers as distinct from non-radiogenic cancers. An excess incidence of cancer is identifiable in a statistical sense only.” It is, thus, not surprising that Congress required the use of statistical probability in the determination whether to compensate an individual with a claimed cancer under Part B. Under Part B, an individual will be determined to have sustained “cancer in the performance of duty for purposes of the compensation program if, and only if, the cancer [at issue] was at least as likely as not *related to* employment at the facility” (emphasis added), determined pursuant to guidelines based upon radiation dose and “the upper 99 percent confidence interval of the probability of causation in the radioepidemiological tables published under section 7(b) of the Orphan Drug Act (42 U.S.C. 241 note),” as well as a number of other factors. The technical documentation prepared by HHS to explain the computer program used to make this calculation similarly notes that “it is not possible to determine, for a given individual, whether his or her cancer resulted from workplace exposure to ionizing radiation.” (NIOSH—Interactive RadioEpidemiological Program
(IREP)Technical Documentation, June 18, 2002). Part B, thus, requires that a claimed cancer be determined to be “related to” employment at a covered facility if the radiation dose and other factors combined indicate that there is a statistical probability that the cancer would not have occurred in the absence of work-related exposure to radiation. In other words, the PoC determination made for purposes of Part B is actually a determination that there is a 50 percent or better chance that radiation was a factor, however slight, “in aggravating, contributing to, or causing” a claimed cancer because, in the absence of work-related exposure to radiation, the cancer would not have occurred at all. Because it is impossible to determine the extent to which any individual factor contributed to the development of cancer, OWCP has concluded that the only way to comply with the statutory mandate in Part E is, in effect, to interpret “a significant factor” as including any factor. Accordingly, the determination made pursuant to HHS regulations issued under Part B whether there is a 50 percent probability that radiation was a factor in the development of cancer ( *i.e.* , that in the absence of work-related exposure to radiation, the cancer would not have occurred at all) will be deemed sufficient to establish that radiation was not only a factor, but was also a significant factor “in aggravating, contributing to, or causing” the cancer in question. The position taken by the commenters appears to be based on a misunderstanding of the test used by Congress in Part B of EEOICPA for determining coverage for cancer due to exposure to radiation. The standard used is whether a cancer suffered by a worker is “related to” his or her employment at a covered facility. The commenters suggest that Part B awards benefits only for cancers caused by exposure to radiation, while Part E was intended to award benefits where the cancer was either caused by or contributed to by exposure to radiation. This misunderstanding may well stem from use of the term “probability of causation” to describe the results of the statistical determination made by the radioepidemiological tables used in the process. By using the term “related to” in Part B, however, Congress encompassed all cancers for which there is a statistical probability that exposure to radiation was a factor in the development of the cancer. Despite the use of the word “causation” in the term “probability of causation,” the determination reached is not an individual determination of the mechanism of cause and effect leading to a particular cancer, which as explained above is not scientifically possible, but a statistical prediction of the probability that the cancer would not have occurred in the absence of exposure to radiation. Thus, the HHS technical documentation describes PoC as “the likelihood that an existing cancer resulted from that [workplace radiation] exposure.” (NIOSH-IREP Technical Documentation, June 18, 2002). Scientific analysis does not distinguish between cancers that are caused or contributed to by radiation. Since the actual mechanisms of cause (or contribution) for a given cancer are not known, only probabilistic assertions can be made, and they address only whether the cancer is more or less likely not to have occurred absent the exposure. The IREP approach identifies all conceivable cancers that might have resulted from the radiation exposure. This probabilistic approach is the only generally accepted scientific means of assigning responsibility for cancers in relation to radiation exposure. The Department of Veterans Affairs and the Defense Department also utilize essentially the same statistical probability test to adjudicate benefits for potentially radiogenic cancer cases incurred by veterans exposed to radiation. Further, it should be noted that the epidemiological method utilized in this determination is actually far more favorable towards claimants than merely requiring a determination that radiation exposure was “at least as likely as not” a significant factor. The method specified by Congress for Part B and adopted by OWCP for Part E requires that OWCP use the upper 99 percent confidence interval to determine whether cancers of employees are to be compensable. In essence, a confidence interval indicates the likelihood that a statistical sample will reflect actual results and is often demonstrated in terms of a margin of error ( *e.g.* , ±5 percentage points in a poll). The precise statistical definition of the 99 percent confidence interval is that if a study or poll were conducted 100 times, the results would be within the sample's margin of error 99 times and one time the results would be either higher or lower. For purposes of the calculations performed under Parts B and/or E of EEOICPA, an upper 99 percent confidence interval establishes a significant margin of error in favor of claimants for whether the exposures that appeared at least as likely as not to cause cancer actually did. That is, use of this confidence interval means that there is only a one percent chance that the exposure level has been underestimated and a 99 percent chance that it has been overestimated. Because of this extremely claimant-favorable margin of error, we believe that it is reasonable to conclude that the use of this method for adjudicating radiogenic cancer claims under Part E will provide compensation in any case in which it is at least as likely as not that an employee would not have suffered cancer absent his or her employment-related exposure to radiation. This conclusion finds further support in the *Report of the NCI-CDC Working Group to Revise the 1985 NIH Radioepidemiological Tables* (September 2003), which found that the PoC model was a viable method to adjudicate claims for radiation-related instances of cancer that appropriately summarized “the likelihood that prior radiation exposure might be causally related to cancer occurrence.” The report described the Department of Veterans Affairs' use of PoC calculated at the 99 percent credibility limit (the term used in that report for confidence interval) as “highly unlikely to exclude persons with meritorious claims. However it is likely to award many persons whose true [PoC's] are very much less than 50 percent.” For example, as noted in that report, because of the substantial margin for error established by use of the 99 percent confidence level, a cancer that is actually nine percent likely to have been caused by the alleged exposure, but for which data is limited, could yield a PoC of 82 percent under the HHS PoC guidelines. OWCP also believes that utilizing the 50 percent PoC process for Part E is more likely to result in a scientifically valid and consistent determination process than attempting to reach a determination based on medical opinions from physicians that inevitably contain a significant speculative component. Use of the PoC guidelines for claims under both Part B and Part E allows OWCP to adjudicate the entitlement of radiogenic cancers that are potentially compensable under both Part B and Part E in a uniform manner. Any process for determining coverage of claims for radiogenic cancers that would yield inconsistent results as to whether that cancer is compensable under Parts B and E is unlikely to be understood or accepted by claimants and other stakeholders. The commenters' argument that eligibility for a radiogenic cancer under Part E should be based on a lower than 50 percent PoC level apparently is based on their interpretation of the language of section 7385s-4(c)(1)(A), which requires a determination that it is “at least as likely as not that exposure to a toxic substance at a Department of Energy facility was a significant factor in aggravating, contributing to, or causing” the claimed cancer. While Congress utilized different terminology to establish the test for compensation in Part E and Part B, the differences reflect the fact that Part B was intended to establish narrowly drawn tests for specific medical conditions, such as radiogenic cancer or chronic beryllium disease. Part E, on the other hand, sets forth a broad test that must be used to determine the compensability of a virtually unlimited array of illnesses potentially caused by exposure to the tens of thousands of toxic substances present at Department of Energy facilities. While there is no way to distinguish between causation and contribution in regard to cancer related to exposure to radiation (because it is only possible to determine the statistical probability that, absent work-related exposure to radiation, the employee in question would not have incurred the cancer or cancers from which he or she suffered), Part E applies to other types of illnesses for which the concept of “contribution” may be highly relevant. Indeed, unlike the case of radiogenic cancer, it is possible to determine that toxic exposure contributed to a number of other illnesses or that other pre-existing illnesses were aggravated by toxic exposure. Therefore, the difference in the statutory language between the standard in Part B and the standard in Part E does not indicate that Part E was intended to establish a more lenient test, but can be explained by the fact that it was designed to cover a wide variety of situations and circumstances, as opposed to the more narrowly drawn Part B radiogenic cancer standard, where no difference existed between causation and contribution. It should also be noted that the regulation specifies that the PoC model will be determinative under Part E only with respect to claims where the sole alleged condition is radiogenic cancer. When a claim for cancer under Part E cannot be accepted based on exposure to radiation alone because the PoC was determined to be less than 50 percent, the claimant is provided the opportunity to establish that the cancer was caused by a combination of exposure to radiation and exposure to one or more other toxic substances. OWCP will adjudicate those claims for cancer allegedly due to exposure to radiation combined with exposure to one or more other toxic substances using the eligibility criteria for other covered illnesses in §§ 30.230 through 30.232. As a result, no changes were made to § 30.213(c) in the final rule. Sections 30.230, 30.231 and 30.232 One labor organization suggested that the statutory terms “aggravated,” “contributed to” and “caused” from one portion of the Part E causation standard appearing in section 7385s-4(c)(1)(A) of EEOICPA be defined in § 30.230 of the final rule so it will be “possible to determine how DOL will adjudicate claims.” However, these statutory terms have a long and settled history in workers' compensation law, and OWCP believes any attempt to further define those terms (which involve matters of administrative discretion and professional medical opinion) would only lead to increased confusion. As a result, § 30.230 has not been amended in the final rule. Two comments from congressional representatives, three from advocacy groups and one from an individual asserted that it would be extremely difficult for claimants to satisfy their burden of proof under § 30.231 to establish both the presence of a toxic substance and the employee's exposure to the substance without the development of site exposure assessments of toxic substances. OWCP shares this concern and is committed to studying all of the available information pertaining to these sites and making publicly available a listing of the toxic substances present at such sites. The information compiled from these studies will be accepted as probative evidence in determining the eligibility of claimants, barring extraordinary and unusual circumstances, and § 30.231(b) has been modified to clarify OWCP's policies regarding this matter. However, the remainder of the suggested changes to the burden of proof described in § 30.231 have not been adopted. One advocacy group objected to the requirement in § 30.232(a)(2) that each claimant under Part E provide a signed medical release authorizing the release of any diagnosis, medical opinion or medical records documenting the employee's alleged covered illness and that it resulted from exposure to a toxic substance. The advocacy group is concerned that in some cases such documents may no longer exist. OWCP is aware of this problem and has established procedures in § 30.113 by which a claimant can nevertheless meet this requirement through the submission of affidavits attesting to medical evidence that was contained in documents that no longer exist. However, a signed medical release is needed in all Part E claims so OWCP may thoroughly investigate the claim. Thus, the suggestion to drop this requirement was not adopted. The same advocacy group and another advocacy group suggested that the requirement contained in § 30.232(c) that a claimant establish that a covered Part E employee suffered an injury, illness, impairment or disease as a consequence of a covered illness be deleted. These commenters feel that OWCP claims examiners should have enough documentation and medical evidence in the case file to made these determinations without requiring the submission of additional medical evidence. However, the nature of these consequential conditions is that they only arise subsequent to the development of an underlying condition, thus necessitating the submission of more recent medical evidence establishing their causal relationship to an existing covered illness. Accordingly, the suggestion was not adopted in the final rule. Section 30.300 Two comments from individuals, two from congressional representatives and one from an advocacy group suggested that OWCP use Physicians Panels to make determinations when there is a dispute with regard to issues of causation or the degree of impairment. After considering the use of Physicians Panels in the adjudication of Part E claims, OWCP decided in the interim final rule to base the formal adjudicatory and review structure for those claims on the same successful and streamlined structure that has been used for Part B claims since 2001. The use of Physicians Panels as deciding bodies for claims submitted to DOE under former Part D of EEOICPA proved to be both inefficient and extremely time-consuming. Nevertheless, OWCP will use a full range of qualified medical specialists to assist in the development of claims, especially the kind of complex cases these comments discuss. When a claim involves extreme complexity and multiple medical disciplines, OWCP may refer the claimant to a panel of physicians for a medical evaluation. Once a report is received, OWCP's adjudicatory staff will then consider it when they make a decision on the claim. OWCP continues to believe that this type of claims adjudication process provides for a more efficient and expeditious handling of medical disputes and the application of more uniform criteria to resolve such disputes. Thus, the suggested changes have not been adopted. The same advocacy group suggested that OWCP state in the regulations the processes it will follow with respect to classified information that may be pertinent to a claim under EEOICPA, and urged that in situations where the claimant or his or her representative lacked the requisite security clearances, OWCP should ask the Ombudsman to provide a properly cleared lawyer or qualified technical expert to evaluate the factual evidence and advocate on behalf of the claimant during the claims adjudication process. OWCP is also concerned about the impact of using classified information to adjudicate claims under the Act. However, since it is not the classifying agency with respect to such information, it cannot allow greater access to the information than is currently permitted. As for the suggestion that OWCP should ask the Ombudsman to nominate or otherwise provide a person with the requisite security clearance to advocate for claimants, the Ombudsman is not authorized to perform that function by either the statute or Secretary's Order 1-2005 (70 FR 33328), which established the Office of the Ombudsman within the Department. The Ombudsman does not have any role in the claims adjudication process administered by OWCP. Thus, the suggestions were not adopted in the final rule. Another advocacy group suggested that the claims adjudication processes described in § 30.300 be altered to include a review by an “independent entity” like an administrative law judge. This same suggestion was made by several commenters with respect to this section as it appeared in the first interim final rule governing its administration of the Act that OWCP published on May 25, 2001 (66 FR 28948). As it noted when it subsequently published the first final rule governing its administration of EEOICPA on December 26, 2002 (67 FR 78874), OWCP believed that utilizing administrative law judges or another type of independent review body would unnecessarily complicate and delay the claims adjudication process to the detriment of claimants. The commenter did not present any new reason not previously considered by OWCP when it originally decided to retain the adjudicatory structure described in § 30.300, or any evidence of problems with it since its inception in 2001. Therefore, the suggested change to this section of the regulations was not adopted. Sections 30.301 and 30.302 One advocacy group suggested that OWCP extend the ability to request issuance of a subpoena to include Part E claims as well as Part B claims, and that this ability should be extended to all stages of the claims adjudication process. Section 30.301 indicates that a claimant may request that a Final Adjudication Branch
(FAB)reviewer issue a subpoena in connection with a claim under Part B of EEOICPA. The statutory authority underlying this section is derived from section 7384w, which only applies to claims filed under Part B; Part E does not contain a similar provision. Therefore, OWCP does not have authority to extend the ability to request a subpoena to claimants under Part E. Further, OWCP has found it to be more efficient to limit the use of subpoenas by claimants to the portion of the claims adjudication process that includes the right to request an oral hearing, *i.e.* , the portion before the FAB. OWCP claims examiners regularly assist claimants in obtaining relevant documents and information in the early development of claims under EEOICPA, and adding subpoena requests to this assistance would not appear to be either efficient or productive. Therefore, the suggested changes to § 30.301 have not been adopted. One attorney suggested that § 30.302 be modified so that claimants will be relieved of their obligation to pay the costs associated with subpoenas they have requested when the subpoenaed witness submits evidence into the case record that is relevant to the claimant's case and where the witness failed before the hearing to provide written evidence after being requested to provide such evidence by the claimant. OWCP believes that the suggested modification erroneously presumes that there will likely be situations where a witness will refuse to provide requested evidence without issuance of a subpoena by a FAB reviewer. This has not been the experience of OWCP in other benefit programs it administers, and OWCP does not contemplate that it will occur in its future administration of Part B. Up to the present time, OWCP has not encountered significant difficulty obtaining the factual or medical evidence necessary for it to adjudicate these claims, and there is no reason to think that these sorts of difficulties will occur in the future. Therefore, the suggestion to modify § 30.302 was not adopted in the final rule. Section 30.303 DOE commented that the 60-day period within which it was required to respond to a request from OWCP for information or documents relevant to a claim under Part E of the Act in § 30.303 was unreasonable, and noted that it would not be able to respond to such a request in a timely manner if the evidence needed to be reviewed for declassification purposes. As an alternative, DOE proposed that the standard for compliance with such a request be “as soon as possible.” While it does not dispute the validity of this concern, OWCP believes that the suggested proposal would effectively remove the time period for response from § 30.303. However, in order to accommodate DOE's belief that it requires additional time to comply with these necessary requests, OWCP has amended § 30.303(a) to provide DOE with 90 days within which to respond. Sections 30.307 and 30.316 One attorney suggested that §§ 30.307(a) and 30.316(e) be amended to provide that a copy of the recommended decision and the final decision be sent to both the claimant and the claimant's representative. These sections currently provide that the recommended decision and final decision be sent to the claimant, unless he or she has a representative. In such a case, the recommended decision and final decision are to be sent only to the representative. OWCP believes that these suggestions have merit, and also notes that this has been the administrative practice of the program for some time. Thus, §§ 30.307(a) and 30.316(e) have been amended in the final rule to provide that OWCP will send a copy of the recommended decision and the final decision on a claim to both the claimant and the claimant's representative, if any. Section 30.315 One attorney suggested that § 30.315 be amended to permit, at the discretion of the FAB reviewer, a postponement of a hearing if the claimant's representative provides reasonable notice that the representative has a medical reason that prevents his or her attendance at the claimant's hearing. The interim final rule permits such a postponement where the claimant is prevented from attending the hearing for medical reasons, and it is the current practice of OWCP to permit such postponements for representatives whose attendance is prevented for the same reasons. Thus, § 30.315(b) has been amended as suggested by the commenter. Section 30.320 One attorney suggested that § 30.320(b) be amended to require the reopening of a final adverse decision on a claim if the claimant submits new evidence of a medical condition or discovers additional medical reports. The section currently requires the Director for Energy Employees Occupational Illness Compensation to a reopen a final decision on a claim if he concludes that the claimant has submitted new and material evidence with regard to either covered employment or exposure to a toxic substance, or identifies either a material change in the PoC guidelines, a material change in the dose reconstruction methods or a material addition of a class of employees to the Special Exposure Cohort. The experience of OWCP with respect to the processing and adjudicating of claims based on occupational or covered illnesses is that new medical evidence of a condition is easily obtained and, upon consideration, rarely sufficient to warrant the reversal of an earlier determination regarding a claimed condition. To permit an automatic reopening of a final decision based on such evidence would inevitably lead to numerous frivolous reopenings and the attendant administrative inefficiencies would deprive claimants with meritorious claims of the opportunity to have those claims adjudicated in a timely manner. It should be noted, however, that claims may be reopened on the basis of new medical evidence by the Director under § 30.320(a), which permits the Director, at his discretion, to reopen a final decision at any time. For these reasons, the suggestion regarding § 30.320(b) has not been adopted. Sections 30.400, 30.403, 30.404 and 30.405 OWCP received three comments from advocacy groups, one from an attorney and two from congressional representatives objecting to the wording in §§ 30.400, 30.403, 30.404 and 30.405 that suggested that there was no way for a claimant to administratively challenge a denial of a particular medical benefit. The wording in question was intended to describe the process that OWCP's medical billing contractor uses to inform claimants of decisions on medical bills that are submitted for payment. However, this wording incorrectly suggested that there was no administrative method by which a claimant could challenge an adverse medical billing determination by OWCP's contractor. To rectify this situation, and as suggested by the commenters, §§ 30.400, 30.403, 30.404 and 30.405 have been changed to indicate that a claimant may administratively challenge an adverse medical billing determination by utilizing the internal adjudicatory processes described in subpart D of the regulations. Sections 30.410 and 30.411 One advocacy group asked that OWCP clarify the provisions in §§ 30.410(b) and 30.411(c) regarding disruptions of directed medical examinations. The provisions in question are intended to remind employees and their representatives that these medical examinations are under the control of medical professionals and are not, therefore, a proper forum for disputing aspects of individual claim adjudications. These physicians have been asked to conduct an examination at the request of OWCP in order to further clarify aspects of an employee's alleged medical condition, not to treat the employee, and therefore they do not have the type of ethical obligations regarding the employee that would otherwise naturally arise with a normal “doctor-patient” relationship. Since any attempt to interfere with a directed examination would disrupt the purpose of the examination, § 30.410(b) and § 30.411(c) set out the consequences of taking such actions, and have not been altered in the final rule. This same advocacy group disagreed with § 30.411(b), which states that when OWCP finds that a conflict in the medical evidence exists, OWCP will select a third physician to conduct a referee examination that resolves such conflict. This process has been in place since the inception of OWCP's administration of Part B, and was not altered in any way with the promulgation of the interim final rule. Further, this same process has been used successfully in other benefit programs administered by OWCP. Accordingly, § 30.411(b) was not modified in the final rule. The same advocacy group and another advocacy group criticized the absence of any “conflict of interest” provisions with respect to physicians in the interim final rule. These comments asserted that it was important that OWCP indicate that physicians involved in the claims adjudication process who submitted medical evidence upon which OWCP claims examiners would make determinations on claims would be subject to some sort of constraints regarding such matters as prior involvement with a claimant, former work for a claimant's employer, etc. OWCP agrees with the general thrust of these comments, and has added provisions to §§ 30.410 and 30.411 that indicate that physicians who perform directed medical examinations at the request of OWCP in connection with the claims adjudication process will be subject to “conflict of interest” standards devised by OWCP to ensure their compliance with ethical standards of professional conduct. Sections 30.500 and 30.501 A total of 521 comments objecting to the definitions of “covered” child and “surviving spouse” for the purposes of Part E in § 30.500(a) were received from 502 individuals and one lay representative (several individual commenters submitted multiple comments on this issue). While the definition of a “surviving spouse” is the same one that applies to Part B claims, a “covered” child under Part E must meet the same definition of a “child” used in Part B and, as of the date of the covered Part E employee's death, be either under the age of 18, under the age of 23 and a full-time student who was continuously enrolled in one or more educational institutions since attaining the age of 18 years, or any age and incapable of self-support. These definitions merely follow, as they must, the definitions for these two terms that appear in section 7385s-3(d). Since these terms cannot be altered through the rulemaking process, the suggestions were not adopted and no changes were made to § 30.500(a). The same lay representative and two of the same individuals also objected to the order of precedence for survivors under Part E that is set out in § 30.501(b) and argued that a surviving spouse should not be required to share an award with children of a deceased Part E employee under any circumstances. This section states that if there is a surviving spouse and at least one “covered” child of a deceased covered Part E employee who is living at the time of payment and who is not a recognized natural child or adopted child of such surviving spouse, half of the payment is made to the surviving spouse and the other half is shared equally among all “covered” children of the employee who are living at the time of payment. As was the case with the survivor definitions discussed in the preceding paragraph, the regulatory order of precedence for survivors under Part E of the Act merely tracks the statutory order of precedence contained in section 7385s-3(c)(3) of EEOICPA. Since the order of precedence for survivors under Part E cannot be modified by regulation, the suggestion was not adopted. Section 30.505 Two advocacy groups suggested that the unified benefit payment processes for both Parts B and E described in § 30.505(a) be amended to require OWCP to issue a “partial” award of $12,500 to covered Part E employees at the time it determines that they have contracted a covered illness, and to determine the balance of any compensation due them within another six months. Unlike Part B of EEOICPA, which compensates individuals upon a finding that a covered Part B employee contracted an occupational illness, Part E monetary compensation can only be awarded if OWCP further determines that a covered Part E employee's wage-loss, impairment or death was due to his or her covered illness. Thus, this suggestion would result in the issuance of a monetary award to a claimant before OWCP has determined that the statutory entitlement criteria established by Part E have been met, and that a payment is due after any required offsets have been calculated. Shortening the monetary benefit payment processes for Part E as suggested by these two commenters would violate the explicit terms of EEOICPA, and therefore the suggestions to change § 30.505(a) have not been adopted. One labor organization suggested that § 30.505(d) be amended to permit a claimant to receive up to the $250,000 maximum aggregate compensation payable under Part E for both wage-loss and impairment, for each of his or her covered illnesses. As OWCP noted in the preamble discussion of this provision of the interim final rule, 42 U.S.C. 7385s-12 “limits the aggregate compensation (other than medical benefits) that OWCP may pay under Part E to all claimants for each individual whose illness or death serves as a basis for compensation or benefits under Part E to a total of $250,000. This is the only reading of the statutory language that is consistent with the statutory requirement that the computation of both impairment benefits and wage-loss benefits under [section] 7385s-2 be based upon impairment or wage-loss that is 'the result of any covered illness.' This reading is also consistent with congressional intent, as reflected in the Conference Report for Public Law 108-375, which states that the ‘maximum aggregate benefit available under [Part] E of EEOICPA is $250,000.’ *See* H.R. Conf. Rep. No. 108-767, at 894 (2004).” Thus, the suggested changes have not been adopted. Section 30.509 Two advocacy groups asked why § 30.509(c) indicates that OWCP will only make an impairment determination for a deceased Part E employee if an eligible survivor makes an election to receive the compensation of the employee as permitted by section 7385s-1(2)(B) of EEOICPA, when the Conference Report states that survivors under Part E are to receive a minimum lump-sum payment of $125,000. These comments are based on a misunderstanding of the operation of § 30.509, which describes the very limited universe of survivors who are eligible to make the election described in section 7385s-1(2)(B), and the fact that the only survivors entitled to utilize this election provision would not be entitled to survivor benefits because the election is only available to survivors of a covered Part E employee who died “from a cause other than the covered illness of the employee.” Survivors who make this election will therefore not be eligible to receive any other compensation (such as the $125,000 lump-sum payment) under the terms of section 7385s-3. Accordingly, the provision discussed in § 30.509(c) is correct, and no changes were made to this section in the final rule. Sections 30.513 Through 30.517 One lay representative suggested that in § 30.517, OWCP should more specifically describe the circumstances under which it would decide to waive its statutory right to recover an overpayment pursuant to section 7385j-2 of EEOICPA. While § 30.513 of the interim final regulations notes the general authority of OWCP to waive recovery of an overpayment of EEOICPA benefits, §§ 30.514 through 30.517 elaborate on that authority with a substantial amount of detail. In light of the variety of factual circumstances and fairness considerations that may apply in any specific case, it is not possible to identify particular circumstances rather than general principles concerning how this authority is to be exercised. Therefore, since §§ 30.513 through 30.517 in the interim final regulations adequately identify the standards that OWCP will use to make these determinations without depriving OWCP of sufficient flexibility to administer this aspect of the program, the suggested changes have not been adopted. Section 30.600 One individual suggested that § 30.600(b) make it clearer that a claimant can grant a person a “power of attorney” to act on his or her behalf, and that such person can then designate a representative to pursue the claim under EEOICPA. OWCP believes there is merit in this suggestion. Thus, additional language was added to § 30.600(b) to clarify that a person who has been granted a power of attorney by a claimant under EEOICPA may designate a representative to pursue that claim before OWCP. Also, one attorney suggested that OWCP change § 30.600(c)(2) to allow an attorney or representative to complete, but not sign, a Form EN-20. OWCP believes that this suggestion has merit, and § 30.600(c)(2) has been amended as requested. Section 30.603 One attorney suggested that the 10 percent limit for attorney fees for filing objections to a recommended decision should apply to the amount of the lump-sum awarded in the final decision. The interim final rule currently applies this limit to the amount by which the lump-sum award is *increased* as a result of the objections, and is consistent with the mandate in section 7385s-9 to limit such fees in Part E cases in the same manner as Part B cases. Since Part B claimants either receive a full lump-sum award or no award at all, successful objections to a recommended decision provide a claimant with an “increased” lump-sum award equal to the entire amount payable under Part B. Section 30.603(b)(2) in the interim final rule merely applies this same principle to Part E cases as required by the explicit terms of the Act. Since lump-sum awards to covered Part E employees may vary according to their level of impairment and the extent of their wage-loss, there may be instances where an objection to a recommended decision proposing to award benefits under Part E may result in a final decision awarding greater benefits. In such a case, the gain to the covered Part E employee from the filing of the objection will not be the entire lump-sum award; the gain will the difference between the lump-sum payment and the amount proposed in the recommended decision. To be consistent with Part B, as required by the statute, the attorney fees under Part E have to be limited to the difference in lump-sum amounts. Thus, the suggested change has not been adopted. This attorney and two other attorneys also objected to the provision in § 30.603(b)(1) that does not permit a representative to charge a two percent fee unless he or she was retained prior to the initial filing of the claim. This provision, however, is based on the limitation contained in 42 U.S.C. 7385g(b)(1), which states that a representative may only charge a two percent fee “for the filing of an initial claim for payment of lump-sum compensation. * * *” OWCP believes that it would violate the statute to permit a representative to charge a fee of two percent of the lump-sum award if the representative was retained after the claim was filed. One of these two other attorneys also suggested that the term “initial claim” be defined to include the filing of amended claim forms, the submission of additional documents or data, or the reopening of the claim following the issuance of a final decision by the FAB; in the alternative, he also suggested that the limitations described in the interim final rule not apply to claims that were filed prior to the effective date of that rule, *i.e.* , June 8, 2005. OWCP believes that an expansive definition of the term “initial claim” would be inconsistent with the plain meaning of the statute, which has not changed in this regard since section 7385g was amended on December 28, 2001. For this same reason, OWCP also believes that there would be no justification for applying the fee limitations described in § 30.603 only to claims filed on or after June 8, 2005. Thus, none of these suggested changes were adopted in the final rule. Section 30.609 Two advocacy groups disagreed with the requirement in § 30.609 that claimants must report (for offset purposes) any payments that they receive due to medical malpractice resulting from treatment of their occupational illness or covered illness. Such medical malpractice payments have as their genesis exposures for which compensation is payable under Part B or Part E of EEOICPA. Under section 7385 of EEOICPA, benefits payable under Part B or Part E must be offset to reflect these types of payments. Thus, OWCP must be informed of these types of payments so it can perform the statutorily mandated offset of EEOICPA benefits, and the suggestion to eliminate this section has not been adopted in the final rule. Section 30.626 One lay representative and five individuals objected to § 30.626, which describes the required coordination of payments under Part E of EEOICPA with benefits from state workers' compensation programs for the same covered illness or illnesses. However, OWCP is required to coordinate Part E benefits in this manner by section 7385s-11 of the Act. Thus, the suggestion to eliminate this section has not been adopted. Sections 30.801, 30.805, 30.806 and 30.815 One individual suggested that § 30.801 indicate that compensation will be provided to employees who have suffered occasional days of lost pay due to their covered illnesses. However, Part E is not a program that provides compensation for *any* wage-loss, regardless of amount, that a covered Part E employee may experience due to his or her covered illness. Instead, Part E only provides compensation under a specific formula in section 7385s-2(a)(2)(A) based on a qualifying amount of wage-loss sustained in a given calendar year, and this formula cannot be altered in this final rule. Thus, the suggestion has not been adopted. One labor organization asserted that it is more difficult for employees who worked intermittently at DOE facilities to establish their average annual wage and their alleged calendar years of wage-loss through reliance on wage data received from the Social Security Administration, and that this will result in employees having to use the methods of § 30.806 to convince OWCP to determine a different average annual wage and/or the extent of compensable calendar years of wage-loss than it determined using § 30.805. However, the labor organization did not put forward any discernable proposal to address the purported problem it raised in its comment. While it is possible that some employees may incur difficulties in securing the type of records described as acceptable to OWCP in § 30.806, these difficulties alone should not relieve them of their burden to produce records that show a level of wage-loss sufficient to make them eligible for an award. OWCP claims examiners are instructed to accept tax returns, pay stubs, union records and pension records as evidence of earnings. In addition, claims examiners can request earning records from employers. Therefore, no change has been made to § 30.806 in the final rule. However, because of these concerns, § 30.805 has been amended in the final rule to more precisely define the term “wages.” Another labor organization asserted that some occupations are more likely to be affected by the business cycle than others, and asked that the wages of employees in these occupations be determined by looking to the average wages of their “peer group” rather than to their own individual wages. OWCP does not believe that adjustments for fluctuations in demand for labor in certain occupations can be made fairly or efficiently, nor does it believe that it has the authority to make this type of change to the statutory formulae for determining these matters by regulation. As a result, this suggested change has also not been adopted. One individual suggested a stylistic change for the wording of § 30.815(b), which he felt was too confusing. Section 30.815(b) is merely intended to inform readers that in most situations, OWCP will determine the number of compensable years of wage-loss in accordance with the procedures described in §§ 30.800 through 30.811. The suggested change is not substantive in nature and would be, in OWCP's opinion, more confusing than the language that currently appears in § 30.815(b). Therefore, the suggested change to this section has not been adopted in the final rule. Section 30.901 One labor organization questioned OWCP's ability to make the type of apportionment determinations described in § 30.901(a) of the interim final rule and asserted that there was no reasoned basis for allocating the cause of a permanent impairment of an organ or body function among both compensable and non-compensable exposures. This provision was based on the somewhat ambiguous language of section 7385s-2(a)(1)(A) of the Act, which can be read in such a way as to require the apportionment described in § 30.901(a) of the interim final rule. However, after carefully considering both the dearth of support for such apportionments in the medical literature and the practical difficulties that claims examiners would be faced with if they were required to make these particular types of determinations, OWCP agrees with the commenter and has decided to interpret the statutory provision in question as not requiring such an apportionment. Thus, OWCP has modified § 30.901(a) in the final rule to remove this requirement. Conforming changes have also been made to §§ 30.901(d), 30.902, and 30.908(b) and (c). One lay representative, four individuals and the same labor organization also criticized the description of the criteria for physicians to perform impairment evaluations set out in § 30.901(b), and suggested that OWCP modify that description to make the criteria less restrictive so as to increase the potential pool of physicians who can perform impairment evaluations acceptable to OWCP. After considering several different potential criteria since the issuance of the interim final rule, OWCP believes that it has developed criteria that will satisfy the commenters' concern that there will be few physicians who meet the criteria in a given locality, or that claimants will not be able to use their local physicians to perform the testing and measurements upon which an impairment evaluation under Part E can be performed by a physician who meets the criteria. As changed, these criteria will now provide that a physician has to establish (to OWCP's satisfaction) that he or she possesses knowledge and experience in using the American Medical Association's *Guides to the Evaluation of Permanent* Impairment (AMA's *Guides* ) and/or possesses the requisite professional background and work experience to conduct acceptable impairment evaluations. Further, while a claimant's local physician may not be able to satisfy all of the criteria described in § 30.901(b) and perform the impairment evaluation itself, the claimant can still elect to have such a physician perform the underlying objective testing and other procedures that another physician who does satisfy the criteria could rely upon in arriving at an evaluation of his or her impairment. Since OWCP has changed the policy to which the commenters objected, no changes were made to § 30.901(b) in the final rule. Sections 30.905 and 30.906 One individual objected to the provision in § 30.905(b)(1) that only impairment evaluations performed by physicians who meet the criteria identified by OWCP will be considered probative. The comment suggests that impairment evaluations performed by physicians of the Radiation Exposure Screening and Education Program (RESEP) that is administered by the Health Resources and Services Administration within HHS be considered probative under Part E of EEOICPA. OWCP has no objection to claimants submitting impairment evaluations performed by a RESEP physician, so long as that physician meets the qualifications set forth by OWCP. The same would be true for physicians who are affiliated with other government-sponsored health clinics. Not all physicians, however, have the necessary training to perform impairment evaluations (as noted above, claimants can utilize any physician to perform the testing and measurements upon which an impairment evaluation can be performed by a physician who meets OWCP's criteria). Thus, OWCP must put into place certain criteria to identify those physicians who are qualified to perform impairment evaluations upon which it can base its ratings. As a result, no changes to § 30.905(b)(1) were made in the final rule. Two other individuals objected to the requirement found in § 30.905(b)(2) that an impairment evaluation must have been performed within one year of its submission to OWCP for it to be considered probative in determining the permanent impairment of a covered Part E employee and suggested that this requirement be deleted. OWCP does not find any merit to this objection because the Act requires OWCP to determine the minimum impairment rating of the employee as of the time it is adjudicating the claim for the award. In light of this requirement, OWCP believes that it is reasonable to insist that the rating be based on an impairment evaluation that is no more than one year old. Two advocacy groups also suggested that this same requirement be deleted because covered Part E employees with previous temporary impairments from which they have recovered would not receive compensation. OWCP believes that the reasoning behind these latter comments ignores the mandate in the Act to compensate covered Part E employees for their permanent impairment rather than their temporary impairment. Thus, the suggestions to delete the requirement in § 30.905(b)(2) were not adopted. Two attorneys suggested that § 30.906 be amended to provide that OWCP will pay for the cost of any additional impairment evaluation if such impairment evaluation increases the minimum impairment rating. In the interim final rule, this section states that OWCP will pay for one evaluation if it meets the criteria set forth in § 30.905(b), and that it will also pay for any additional impairment evaluations that it directs the employee to undergo (and reimburse the employee for reasonable expenses, as defined in the rule, that are associated with such an evaluation). OWCP is not persuaded that there is a reasonable basis for paying for additional impairment evaluations beyond those already described in § 30.906, and therefore the suggestion was not adopted in the final rule. Sections 30.907 and 30.908 Two advocacy groups asserted that § 30.907(b) did not provide a process whereby a dispute regarding a covered Part E employee's impairment evaluation could be resolved. While § 30.907(b) in the interim final rule noted that the procedures for “directed medical examinations” set out in §§ 30.410 and 30.411 of the regulations applied to these types of disputes, OWCP acknowledges that it did not explicitly note that such procedures include the process by which OWCP resolves medical disputes in general. Therefore, in order to make this provision more clear, § 30.907(b) has been modified slightly in the final rule to explicitly note that OWCP will resolve medical disputes regarding impairment through the “referee examination” process set out in § 30.411. One labor organization objected to the provisions in § 30.908 requiring that medical evidence of impairment submitted to the FAB in opposition to the impairment evaluation that was relied upon in a recommended decision conform to the requirements set out in § 30.905(b) in order to be afforded any probative value, and noted that claimants have the burden of proving that the new medical evidence has greater probative value than the impairment evaluation relied upon in the recommended decision. Requirements of this sort that set out minimum standards for new evidence and the assumption of the burden of proof when challenging a determination made below are standard features of any adjudicative system, and are necessary to conserve scarce administrative resources. OWCP does not agree that their use in this context is either unduly burdensome on claimants or inherently unfair in a system such as Part E. Therefore, no changes were made to § 30.908 as a result of the comment. Section 30.910 Two comments from congressional representatives, four from advocacy groups and two from individuals objected to the provision in § 30.910(a) of the interim final rule that an impairment that cannot be assigned a numerical percentage using the AMA's *Guides* will not be included in a covered Part E employee's impairment rating, and noted that the Conference Report for Public Law 108-375 suggests that for those illnesses for which the AMA's *Guides* do not provide a method to assign a numerical percentage, the Department should devise another method to determine the amount of an impairment award to a covered Part E employee. *See* H.R. Conf. Rep. No. 108-767, at 893 (2004). However, as the Department pointed out when it promulgated § 30.910, the plain language of section 7385s-2(b) requires OWCP to determine the amount of an impairment award to a covered Part E employee in accordance with the AMA's *Guides* and does not contain the exception referred to in the Conference Report for “an illness for which the [AMA's *Guides* ] do not provide an impairment rating. * * *” It should be noted that this suggestion appears to be based on the assumption that the AMA's *Guides* cannot be used to determine an impairment rating for an illness unless they explicitly provide a method to evaluate that particular illness. However, because the *Guides* evaluate the impairment of organs and body functions rather than illnesses *per se* , even a newly identified illness can be evaluated using the *Guides* so long as its effects on those organs and/or body functions are known and quantifiable. As noted above, section 7385s-2(b) of EEOICPA requires that impairment ratings “shall be determined in accordance with the American Medical Association's *Guides to the Evaluation of Permanent Impairment* .” The discussion of mental impairments that do not originate from documented physical dysfunctions of the nervous system in Chapter 14 (Mental and Behavioral Disorders) of the AMA's *Guides* states that “there are no precise measures of impairment in mental disorders. The use of percentages implies a certainty that does not exist.” Chapter 14 then explains that the authors of the current (fifth) edition of the AMA's *Guides* are “unaware of data that show the reliability” of any percentages for these particular types of impairments and that “the Committee on Disability and Rehabilitation of the American Psychiatric Association advised *Guides* contributors against the use of percentages in the chapter on mental and behavioral disorders of the fourth edition, and that remains the opinion of the authors of the present chapter.” In support of their decision not to assign numerical percentages to mental impairments that do not originate from documented physical dysfunctions of the nervous system, the authors point out that “[n]o available empirical evidence supports any method for assigning a percentage of impairment of the whole person” to these disorders. Since the AMA's *Guides* clearly takes the position that there is no basis to calculate numerical percentages of mental impairment due to mental disorders, attempting to do so by devising a rating mechanism independent of the AMA's *Guides* would violate EEOICPA's requirement that impairment ratings be determined “in accordance with” the AMA's *Guides* . Thus, § 30.910(b) indicates that these types of mental impairments will not be included in an impairment rating; no change was made to this section in the final rule. Section 30.911 Two comments from individuals, two from congressional representatives, two from advocacy groups and two from attorneys questioned the appropriateness of the provision in § 30.911(a) in light of the progressive nature of the covered illnesses that would be compensable under Part E of EEOICPA. OWCP's intent in the interim final rule was to apply the requirement that an individual reach “maximum medical improvement” in order for an impairment rating to be determined in a manner that is appropriate for the conditions covered by EEOICPA. OWCP recognizes that many of these covered illnesses are progressive, and that many employees may find themselves in a situation where their accepted condition is not likely to improve but can be expected to gradually deteriorate. The intent in the interim final rule was to allow for minimum impairment ratings to be calculated and compensated in such circumstances. However, since the wording of § 30.911(a) in the interim final rule did not convey this intent as clearly as it could have, this provision has been modified slightly in the final rule by changing the word “change” to “improve” in the final rule. II. Miscellaneous Comments Several of the 533 timely comments the Department received raised issues that either were not addressed in the interim final regulations or involved extraneous matters. The Department's analysis of these miscellaneous comments follows: The Ombudsman OWCP received one comment from an advocacy group pointing out that the interim final regulations did not address the role and functions of the Ombudsman provided for in section 7385s-15 of EEOICPA. However, this omission was intentional and required by the terms of section 7385s-15(d), which requires that the Ombudsman be independent “from other officers and employees of the Department [of Labor] engaged in activities relating to the administration of the provisions of” Part E of EEOICPA. Instead, the role and the functions of the Ombudsman are set out in Secretary's Order 1-2005. Therefore, the final rule also does not address either the role or the functions of the Ombudsman. The Rulemaking Process OWCP received one comment from an attorney on a specific aspect of the rulemaking process. Without identifying any particular provision of the regulations, the commenter opined that at least some of them would not be comprehensible to some members of the public and should be rewritten in “plain English.” OWCP acknowledges that some of the regulations for Part E involve complex medical matters or complicated arithmetic calculations. However, while these concepts can be difficult to comprehend, OWCP went to great lengths in an effort to ensure that the corresponding regulations in subparts I and J were written in a clear and understandable manner. Since the commenter neither identified a particularly incomprehensible provision of the regulations nor provided any suggested improvements, no additional changes were made to the regulations based on this comment. Coverage One DOE contractor and four individuals made suggestions about which workers or survivors should be covered by Part E of EEOICPA. However, the Act mandates the categories of workers and survivors covered under Part B and Part E and the regulations cannot be changed to either expand or restrict these categories unless the Act is amended. Therefore, the suggested changes have not been made in this final rule. III. Publication in Final The Department of Labor has determined, pursuant to 5 U.S.C. 553(b)(B), that good cause exists for waiving public comment on this final rule with respect to the following changes:
(1)Corrections of typographical errors; and
(2)minor wording changes and clarifications that do not affect the substance of the regulations. For these changes, publication of a proposed rule and solicitation of comments would be neither necessary nor fruitful. IV. Statutory Authority Section 7384d of EEOICPA provides general statutory authority, which E.O. 13179 allocates to the Secretary, to prescribe rules and regulations necessary for administration of Part B of the Act. Section 7385s-10(e) also provides the Secretary with the general statutory authority to prescribe regulations necessary for administration of Part E of the Act. Sections 7384t, 7384u and 7385s-8 provide the specific authority regarding medical treatment and care, including authority to determine the appropriateness of charges. The Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701 *et seq.* ), authorizes imposition of interest charges and collection of debts by withholding funds due the debtor. V. Paperwork Reduction Act This final rule contains information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 *et seq.* The requirements set out in §§ 30.401, 30.404, 30.420, 30.421, 30.512, 30.518, 30.700, 30.701 and 30.702 of this rule were both submitted to and approved by OMB under the PRA in OMB Control Nos. 1215-0054 (expires June 30, 2007), 1215-0055 (expires October 31, 2009), 1215-0137 (expires March 31, 2007), 1215-0144 (expires October 31, 2009), 1215-0176 (expires January 31, 2007), 1215-0193 (expires March 31, 2007) and 1215-0194 (expires March 31, 2007). The requirements in §§ 30.100, 30.101, 30.102, 30.103, 30.111, 30.112, 30.113, 30.114, 30.206, 30.207, 30.212, 30.213, 30.214, 30.215, 30.221, 30.222, 30.226, 30.231, 30.232, 30.415, 30.416, 30.417, 30.505, 30.620, 30.806, 30.905 and 30.907of this rule were also both submitted to and approved by OMB under the PRA in OMB Control No. 1215-0197 (expires August 31, 2007). Following publication of this final rule, the Department plans to seek OMB approval of two new information collections under the PRA and will issue 60-day **Federal Register** notices seeking public comment on
(1)a collection that will annually request updated information relating to state workers' compensation benefits received by EEOICPA Part E beneficiaries; and
(2)a collection annually requesting verifying information on state workers' compensation benefits from state authorities. These collections will implement the Department's responsibilities under section 7385s-11 of EEOICPA. VI. Executive Order 12866 This rule is being treated as a “significant regulatory action,” within the meaning of E.O. 12866, because it is “economically significant” as defined by section 3(f)(1) of that Order. The payment of the benefits provided for by EEOICPA through the program administered pursuant to this regulatory action has an annual effect on the economy of $100 million or more. However, this rule does not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, the environment, public health or safety, or State, local, or tribal governments or communities, as defined by section 3(f)(1) of E.O. 12866. This rule is also a “significant regulatory action” because it meets the criterion of section 3(f)(4) of that Order in that it raises novel or legal policy issues arising out of the legal mandate established by EEOICPA. Based on the factors and assumptions set forth below, DOL's estimate of the aggregate cost of benefits and administrative expenses of this regulatory action implementing Part B and Part E of EEOICPA is, in millions of dollars: FY2007 FY2008 FY2009 FY2010 FY2011 Admin $162 $163 $147 $127 $111 Benefits 1,123 861 752 656 579 The Department's estimate of the benefits to be paid pursuant to EEOICPA and of the administrative costs of providing those benefits is based on program experience to date, data collected from other federal agencies, assumptions about the incidence of cancer, covered beryllium disease, chronic silicosis and other covered illnesses in the claimant population, life expectancy tables, dose reconstruction acceptance rates, Physicians Panel acceptances under the former Part D of the Act, the anticipated distribution of benefit amounts, and its experience in estimating administrative and medical costs of workers' compensation programs. The Department's benefit estimates are not based on any projections regarding the number of future additions to the Special Exposure Cohort (SEC). For Part B benefits, estimates for cancer claims are based on the actual number of claims received by OWCP, the anticipated number of future claims, and the historical approval rates for both SEC and non-SEC claims. Part B benefit estimates for beryllium exposure are based on the actual number of such claims received by OWCP, anticipated future claims, and the historical approval rate. Benefit estimates for chronic silicosis are based on similar factors. Benefit estimates for claims that require receipt of an award from DOJ under section 5 of RECA are based on historical claim receipts and include the amounts awarded by DOJ under RECA but paid from the compensation fund. Medical benefits for living employees eligible under Part B are computed using an average of $10,000 per year. Part E benefit estimates for Part E cases are based on cases received by OWCP to date, future expected receipts, and the average Part B approval rate. The benefit amounts for Part E are calculated based on an estimated distribution of approved claims with varying degrees of compensable impairment and wage-loss, with an average benefit amount of $135,000 and average medical costs of $10,000 per year for each eligible living employee. Additional Part E benefits for individuals who are determined to be eligible RECA section 5 uranium workers are computed based upon the number of such claims received to date and the expected number of such claims in the future. Administrative cost estimates were developed based upon OWCP's experience to date in administering Part B and the other workers' compensation programs that fall within its area of administrative responsibility, using calculations of the number of incoming claims and forecasting the necessary full-time equivalents and other resources that are necessary to efficiently administer the program. No more extensive economic impact analysis of this rule is necessary because this regulatory action only addresses the transfer of funds from the federal government to individuals who qualify under EEOICPA and to providers of medical services in that program. This regulatory action has no affect on the functioning of the economy and private markets, on the health and safety of the general population, or on the natural environment. In addition, because this rule implements a statutory mandate, there are no feasible alternatives to this regulatory action. Finally, to the extent that policy choices have been made in interpreting statutory terms, those choices have no significant impact on the cost of this regulatory action. Such policy choices may affect who will be entitled to receive benefits (such as covered Part E employees with unratable impairments due to a covered illness), but will not have a significant impact on the number of eligible Part B or E beneficiaries or the level of benefits to which they are entitled. OMB has reviewed the rule for consistency with the President's priorities and the principles set forth in E.O. 12866. VII. Small Business Regulatory Enforcement Fairness Act As required by Congress under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 *et seq.* ), the Department will report to Congress promulgation of this final rule prior to its effective date. The report will state that the Department has concluded that this final rule is a “major rule” because it will likely result in an annual effect on the economy of $100 million or more. VIII. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 *et seq.* ) directs agencies to assess the effects of federal regulatory actions on state, local, and tribal governments, and the private sector, “other than to the extent that such regulations incorporate requirements specifically set forth in law.” For purposes of the Unfunded Mandates Reform Act, this final rule does not include any federal mandate that may result in increased annual expenditures in excess of $100 million by state, local or tribal governments in the aggregate, or by the private sector. IX. Regulatory Flexibility Act The Department believes that this rule has “no significant economic impact upon a substantial number of small entities” within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The provisions of this rule that apply cost-control measures to payments for medical expenses are the only ones that could have a monetary effect on small businesses, and have been in effect since OWCP began administration of Part B of EEOICPA on July 31, 2001. The economic effect of these cost-control measures are not significant for a substantial number of those businesses who participate in the program under Parts B and E of EEOICPA, however, because no one business bills a significant amount to OWCP for EEOICPA-related services, and the monetary effect on bills that are submitted, while a worthwhile savings for the Government in the aggregate, are not significant for any individual business affected. The cost-control provisions are:
(1)A set schedule of maximum allowable fees for professional medical services;
(2)a set schedule for payment of pharmacy bills; and
(3)a prospective payment system for hospital inpatient services. The methodologies used for the first two of these provisions were explained in the text of the preamble to two earlier regulatory actions that implemented EEOICPA in 2001 (66 FR 28948) and 2002 (67 FR 78874), which essentially adopted payment systems that are prevalent in the industry. Their adoption for use in connection with OWCP's administration of Part E of the Act results in continued efficiencies for the Government and providers. The Government benefits because OWCP did not develop new cost containment measures for Part E claims, but rather adopted existing and well-recognized measures that were already in place. The providers benefit because submitting a bill and receiving a payment is almost the same as submitting it to Medicare, a program with which they are already familiar and have existing systems in place for billing—they do not have to incur unnecessary administrative costs to learn a new process because the EEOICPA bill process for Part E claims is identical to the bill process that applies to Part B claims, and is not readily distinguishable from the Medicare billing process. Similarly, pharmacies are familiar with billing through clearing houses and having their charges subject to limits by private insurance carriers. By adopting private sector uniform billing requirements and a familiar cost control methodology, OWCP has not altered the billing environment with which pharmacies are already familiar. The methods chosen, therefore, represent systems familiar to the providers. The third of these three provisions does not have an effect on a substantial number of “small entities” under Small Business Administration
(SBA)standards, since most hospitals providing services for medical conditions covered by EEOICPA have annual receipts that exceed the set maximum. The implementation of these cost-control methods does not have a significant effect on any single medical professional or pharmacy since they are already used by Medicare, CHAMPUS, and the Departments of Labor and Veterans Affairs, among Government entities, and by private insurance carriers. In actual terms, the amount by which these provider bills are reduced does not have a significant impact on any one small entity since these charges are currently being processed by other payers applying similar cost-control provisions. The costs to providers whose charges are reduced also are relatively small because EEOICPA bills simply do not represent a large share of any single provider's total business. Since the small universe of potential claimants is spread across the United States and this bill processing system covers only those employees who have sustained an occupational illness or a covered illness and require medical treatment on or after October 30, 2000, the number of bills submitted by any one small entity which may be subject to these provisions is likely to be very small. Therefore, the “cost” of this rule to any one pharmacy or medical professional is negligible. On the other hand, OWCP reaps substantial aggregate cost savings that benefit both OWCP (by strengthening the integrity of the program) and the taxpayers to whom the costs of the program are eventually charged. The Assistant Secretary for Employment Standards has certified to the Chief Counsel for Advocacy of the SBA that this rule does not have a significant impact on a substantial number of small entities. The factual basis for this certification has been provided above. Accordingly, no regulatory impact analysis is required. X. Executive Order 12988 (Civil Justice Reform) This final rule has been drafted and reviewed in accordance with E.O. 12988 and will not unduly burden the federal court system. While Part B of EEOICPA does not provide any specific procedures that claimants under that Part must follow in order to seek review of decisions on their claims, Part E specifies that claimants under that Part have 60 days to file petitions for review of decisions on their claims in the United States district courts, and mandates the use of an “arbitrary and capricious” standard of review. It is reasonably likely that some EEOICPA claimants will seek review of adverse decisions in United States district courts pursuant to 28 U.S.C. 1331 (for claims under Part B of EEOICPA) or the EEOICPA itself (for claims under Part E). This rule should help minimize the burden placed on courts by litigation seeking to challenge decisions under EEOICPA by providing claimants with an opportunity to seek administrative review of adverse decisions prior to resorting to the court system, and by providing a clear legal standard for affected conduct. The rule has been reviewed carefully to eliminate drafting errors and ambiguities. XI. Executive Order 13045 (Protection of Children From Environmental, Health Risks and Safety Risks) In accordance with E.O. 13045, the Department has evaluated the environmental health and safety effects of this rule on children. The Department has determined that the final rule will have no effect on children. XII. Executive Order 13132 (Federalism) The Department has reviewed this final rule in accordance with E.O. 13132 and has determined that it does not have any “federalism implications.” The final rule does not “have 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.” XIII. Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) In accordance with E.O. 13211, the Department has evaluated the effects of this final rule on energy supply, distribution or use, and has determined that this rule is not likely to have a significant adverse effect on them. XIV. Submission to Congress and the General Accountability Office In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the Department will submit to each House of the Congress and to the Comptroller General a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this notice. The report will note that this rule constitutes a “major rule” as defined by 5 U.S.C. 804(2). XV. Catalog of Federal Domestic Assistance Number This program is listed in the Catalog of Federal Domestic Assistance as No. 17.310. List of Subjects 20 CFR Part 1 Organization and functions (Government agencies). 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 set forth in the preamble, 20 CFR Chapter 1 is amended as follows: Subchapter A—Organization and Procedures 1. Part 1 is revised to read as follows: PART 1—PERFORMANCE OF FUNCTIONS Sec. 1.1 Under what authority was the Office of Workers' Compensation Programs established? 1.2 What functions are assigned to OWCP? 1.3 What rules are contained in this chapter? 1.4 Where are other rules concerning OWCP functions found? 1.5 When was the former Bureau of Employees' Compensation abolished? 1.6 How were many of OWCP's current functions administered in the past? Authority: 5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No. 6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat. 1263); 42 U.S.C. 7384d and 7385s-10; Executive Order 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 13-71, 36 FR 8155; Employment Standards Order No. 2-74, 39 FR 34722. § 1.1 Under what authority was the Office of Workers' Compensation Programs established? The Assistant Secretary of Labor for Employment Standards, by authority vested in him by the Secretary of Labor in Secretary's Order No. 13-71 (36 FR 8755), established in the Employment Standards Administration an Office of Workers' Compensation Programs
(OWCP)by Employment Standards Order No. 2-74 (39 FR 34722). The Assistant Secretary subsequently designated as the head thereof a Director who, under the general supervision of the Assistant Secretary, administers the programs assigned to OWCP by the Assistant Secretary. § 1.2 What functions are assigned to OWCP? The Assistant Secretary of Labor for Employment Standards has delegated authority and assigned responsibility to the Director of OWCP for the Department of Labor's programs under the following statutes:
(a)The Federal Employees' Compensation Act, as amended and extended (5 U.S.C. 8101 *et seq.* ), except 5 U.S.C. 8149 as it pertains to the Employees' Compensation Appeals Board.
(b)The War Hazards Compensation Act (42 U.S.C. 1701 *et seq.* ).
(c)The War Claims Act (50 U.S.C. App. 2003).
(d)The Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384 *et seq.* ), except activities, pursuant to Executive Order 13179 (“Providing Compensation to America's Nuclear Weapons Workers”) of December 7, 2000, assigned to the Secretary of Health and Human Services, the Secretary of Energy and the Attorney General.
(e)The Longshore and Harbor Workers' Compensation Act, as amended and extended (33 U.S.C. 901 *et seq.* ), except: 33 U.S.C. 919(d) with respect to administrative law judges in the Office of Administrative Law Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review Board; and activities, pursuant to 33 U.S.C. 941, assigned to the Assistant Secretary of Labor for Occupational Safety and Health.
(f)The Black Lung Benefits Act, as amended (30 U.S.C. 901 *et seq.* ). § 1.3 What rules are contained in this chapter? The rules in this chapter are those governing the OWCP functions under the Federal Employees' Compensation Act, the War Hazards Compensation Act, the War Claims Act and the Energy Employees Occupational Illness Compensation Program Act of 2000. § 1.4 Where are other rules concerning OWCP functions found?
(a)The rules of the OWCP governing its functions under the Longshore and Harbor Workers' Compensation Act and its extensions are set forth in subchapter A of chapter VI of this title.
(b)The rules of the OWCP governing its functions under the Black Lung Benefits Act program are set forth in subchapter B of chapter VI of this title.
(c)The rules and regulations of the Employees' Compensation Appeals Board are set forth in chapter IV of this title.
(d)The rules and regulations of the Benefits Review Board are set forth in Chapter VII of this title. § 1.5 When was the former Bureau of Employees' Compensation abolished? By Secretary of Labor's Order issued September 23, 1974 (39 FR 34723), issued concurrently with Employment Standards Order 2-74 (39 FR 34722), the Secretary revoked the prior Secretary's Order No. 18-67 (32 FR 12979), which had delegated authority and assigned responsibility for the various workers' compensation programs enumerated in § 1.2, except the Black Lung Benefits Program and the Energy Employees Occupational Illness Compensation Program not then in existence, to the Director of the former Bureau of Employees' Compensation. § 1.6 How were many of OWCP's current functions administered in the past?
(a)Administration of the Federal Employees' Compensation Act and the Longshore and Harbor Workers' Compensation Act was initially vested in an independent establishment known as the U.S. Employees' Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR, 1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the Commission was abolished and its functions were transferred to the Federal Security Agency to be performed by a newly created Bureau of Employees' Compensation within such Agency. By Reorganization Plan No. 19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat. 1271), said Bureau was transferred to the Department of Labor (DOL), and the authority formerly vested in the Administrator, Federal Security Agency, was vested in the Secretary of Labor. By Reorganization Plan No. 6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp., page 1004, 64 Stat. 1263), the Secretary of Labor was authorized to make from time to time such provisions as he shall deem appropriate, authorizing the performance of any of his functions by any other officer, agency, or employee of the DOL.
(b)In 1972, two separate organizational units were established within the Bureau: an Office of Workmen's Compensation Programs (37 FR 20533) and an Office of Federal Employees' Compensation (37 FR 22979). In 1974, these two units were abolished and one organizational unit, the Office of Workers' Compensation Programs, was established in lieu of the Bureau of Employees' Compensation (39 FR 34722). 2. Subchapter C consisting of part 30 is revised to read as follows: Subchapter C—Energy Employees Occupational Illness Compensation Program Act of 2000 PART 30—CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED Subpart A—General Provisions Introduction Sec. 30.0 What are the provisions of EEOICPA, in general? 30.1 What rules govern the administration of EEOICPA and this chapter? 30.2 In general, how have the tasks associated with the administration of the EEOICPA claims process been assigned? 30.3 What do these regulations contain? Definitions 30.5 What are the definitions used in this part? Information in Program Records 30.10 Are all OWCP records relating to claims filed under EEOICPA considered confidential? 30.11 Who maintains custody and control of claim records? 30.12 What process is used by a person who wants to obtain copies of or amend EEOICPA claim records? Rights and Penalties 30.15 May EEOICPA benefits be assigned, transferred or garnished? 30.16 What penalties may be imposed in connection with a claim under the Act? 30.17 Is a beneficiary who defrauds the government in connection with a claim for EEOICPA benefits still entitled to those benefits? Subpart B—Filing Claims; Evidence and Burden of Proof; Special Procedures for Certain Cancer Claims Filing Claims for Benefits Under EEOICPA 30.100 In general, how does an employee file an initial claim for benefits? 30.101 In general, how is a survivor's claim filed? 30.102 In general, how does an employee file a claim for additional impairment or wage-loss under Part E of EEOICPA? 30.103 How does a claimant make sure that OWCP has the evidence necessary to process the claim? Verification of Alleged Employment 30.105 What must DOE do after an employee or survivor files a claim? 30.106 Can OWCP request employment verification from other sources? Evidence and Burden of Proof 30.110 Who is entitled to compensation under the Act? 30.111 What is the claimant's responsibility with respect to burden of proof, production of documents, presumptions, and affidavits? 30.112 What kind of evidence is needed to establish covered employment and how will that evidence be evaluated? 30.113 What are the requirements for written medical documentation, contemporaneous records, and other records or documents? 30.114 What kind of evidence is needed to establish a compensable medical condition and how will that evidence be evaluated? Special Procedures for Certain Radiogenic Cancer Claims 30.115 For those radiogenic cancer claims that do not seek benefits under Part B of the Act pursuant to the Special Exposure Cohort provisions, what will OWCP do once it determines that an employee contracted cancer? Subpart C—Eligibility Criteria General Provisions 30.200 What is the scope of this subpart? Eligibility Criteria for Claims Relating to Covered Beryllium Illness Under Part B of EEOICPA 30.205 What are the criteria for eligibility for benefits relating to beryllium illnesses covered under Part B? 30.206 How does a claimant prove that the employee was a “covered beryllium employee” exposed to beryllium dust, particles or vapor in the performance of duty? 30.207 How does a claimant prove a diagnosis of a beryllium disease covered under Part B? Eligibility Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E of EEOICPA 30.210 What are the criteria for eligibility for benefits relating to radiogenic cancer? 30.211 How does a claimant establish that the employee has or had contracted cancer? 30.212 How does a claimant establish that the employee contracted cancer after beginning employment at a DOE facility, an atomic weapons employer facility or a RECA section 5 facility? 30.213 How does a claimant establish that the radiogenic cancer was at least as likely as not related to employment at the DOE facility, the atomic weapons employer facility, or the RECA section 5 facility? 30.214 How does a claimant establish that the employee is a member of the Special Exposure Cohort? 30.215 How does a claimant establish that the employee has sustained an injury, illness, impairment or disease as a consequence of a diagnosed cancer? Eligibility Criteria for Claims Relating to Chronic Silicosis Under Part B of EEOICPA 30.220 What are the criteria for eligibility for benefits relating to chronic silicosis? 30.221 How does a claimant prove exposure to silica in the performance of duty? 30.222 How does a claimant establish that the employee has been diagnosed with chronic silicosis or has sustained a consequential injury, illness, impairment or disease? Eligibility Criteria for Certain Uranium Employees Under Part B of EEOICPA 30.225 What are the criteria for eligibility for benefits under Part B of EEOICPA for certain uranium employees? 30.226 How does a claimant establish that a covered uranium employee has sustained a consequential injury, illness, impairment or disease? Eligibility Criteria for Other Claims Under Part E of EEOICPA 30.230 What are the criteria necessary to establish that an employee contracted a covered illness under Part E of EEOICPA? 30.231 How does a claimant prove employment-related exposure to a toxic substance at a DOE facility or a RECA section 5 facility? 30.232 How does a claimant establish that the employee has been diagnosed with a covered illness, or sustained an injury, illness, impairment or disease as a consequence of a covered illness? Subpart D—Adjudicatory Process 30.300 What process will OWCP use to decide claims for entitlement and to provide for administrative review of those decisions? 30.301 May subpoenas be issued for witnesses and documents in connection with a claim under Part B of EEOICPA? 30.302 Who pays the costs associated with subpoenas? 30.303 What information may OWCP request in connection with a claim under Part E of EEOICPA? Recommended Decisions on Claims 30.305 How does OWCP determine entitlement to EEOICPA compensation? 30.306 What does the recommended decision contain? 30.307 To whom is the recommended decision sent? Hearings and Final Decisions on Claims 30.310 What must the claimant do if he or she objects to the recommended decision or wants to request a hearing? 30.311 What happens if the claimant does not object to the recommended decision or request a hearing within 60 days? 30.312 What will the FAB do if the claimant objects to the recommended decision but does not request a hearing? 30.313 How is a review of the written record conducted? 30.314 How is a hearing conducted? 30.315 May a claimant postpone a hearing? 30.316 How does the FAB issue a final decision on a claim? 30.317 Can the FAB request a further response from the claimant or return a claim to the district office? 30.318 Can the FAB consider objections to HHS's reconstruction of a radiation dose or to the guidelines OWCP uses to determine if a claimed cancer was at least as likely as not related to employment? 30.319 May a claimant request reconsideration of a final decision of the FAB? Reopening Claims 30.320 Can a claim be reopened after the FAB has issued a final decision? Subpart E—Medical and Related Benefits Medical Treatment and Related Issues 30.400 What are the basic rules for obtaining medical treatment? 30.401 What are the special rules for the services of chiropractors? 30.402 What are the special rules for the services of clinical psychologists? 30.403 Will OWCP pay for the services of an attendant? 30.404 Will OWCP pay for transportation to obtain medical treatment? 30.405 After selecting a treating physician, may an employee choose to be treated by another physician instead? 30.406 Are there any exceptions to these procedures for obtaining medical care? Directed Medical Examinations 30.410 Can OWCP require an employee to be examined by another physician? 30.411 What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee? 30.412 Who pays for second opinion and referee examinations? Medical Reports 30.415 What are the requirements for medical reports? 30.416 How and when should medical reports be submitted? 30.417 What additional medical information may OWCP require to support continuing payment of benefits? Medical Bills 30.420 How should medical bills and reimbursement requests be submitted? 30.421 What are the time frames for submitting bills and reimbursement requests? 30.422 If an employee is only partially reimbursed for a medical expense, must the provider refund the balance of the amount paid to the employee? Subpart F—Survivors; Payments and Offsets; Overpayments Survivors 30.500 What special statutory definitions apply to survivors under EEOICPA? 30.501 What order of precedence will OWCP use to determine which survivors are entitled to receive compensation under EEOICPA? 30.502 When is entitlement for survivors determined for purposes of EEOICPA? Payment of Claims and Offset for Certain Payments 30.505 What procedures will OWCP follow before it pays any compensation? 30.506 To whom and in what manner will OWCP pay compensation? 30.507 What compensation will be provided to covered Part B employees who only establish beryllium sensitivity under Part B of EEOICPA? 30.508 What is beryllium sensitivity monitoring? 30.509 Under what circumstances may a survivor claiming under Part E of the Act choose to receive the benefits that would otherwise be payable to a covered Part E employee who is deceased? Overpayments 30.510 How does OWCP notify an individual of a payment made on a claim? 30.511 What is an “overpayment” for purposes of EEOICPA? 30.512 What does OWCP do when an overpayment is identified? 30.513 Under what circumstances may OWCP waive recovery of an overpayment? 30.514 If OWCP finds that the recipient of an overpayment was not at fault, what criteria are used to decide whether to waive recovery of it? 30.515 Is a recipient responsible for an overpayment that resulted from an error made by OWCP? 30.516 Under what circumstances would recovery of an overpayment defeat the purpose of the Act? 30.517 Under what circumstances would recovery of an overpayment be against equity and good conscience? 30.518 Can OWCP require the recipient of the overpayment to submit additional financial information? 30.519 How does OWCP communicate its final decision concerning recovery of an overpayment? 30.520 How are overpayments collected? Subpart G—Special Provisions Representation 30.600 May a claimant designate a representative? 30.601 Who may serve as a representative? 30.602 Who is responsible for paying the representative's fee? 30.603 Are there any limitations on what the representative may charge the claimant for his or her services? Third Party Liability 30.605 What rights does the United States have upon payment of compensation under EEOICPA? 30.606 Under what circumstances must a recovery of money or other property in connection with an illness for which benefits are payable under EEOICPA be reported to OWCP? 30.607 How is a structured settlement (that is, a settlement providing for receipt of funds over a specified period of time) treated for purposes of reporting the recovery? 30.608 How does the United States calculate the amount to which it is subrogated? 30.609 Is a settlement or judgment received as a result of allegations of medical malpractice in treating an illness covered by EEOICPA a recovery that must be reported to OWCP? 30.610 Are payments to a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary as a result of an insurance policy which the employee or eligible surviving beneficiary has purchased a recovery that must be reported to OWCP? 30.611 If a settlement or judgment is received for more than one medical condition, can the amount paid on a single EEOICPA claim be attributed to different conditions for purposes of calculating the amount to which the United States is subrogated? Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons Employers 30.615 What type of tort suits filed against beryllium vendors or atomic weapons employers may disqualify certain claimants from receiving benefits under Part B of EEOICPA? 30.616 What happens if this type of tort suit was filed prior to October 30, 2000? 30.617 What happens if this type of tort suit was filed during the period from October 30, 2000 through December 28, 2001? 30.618 What happens if this type of tort suit was filed after December 28, 2001? 30.619 Do all the parties to this type of tort suit have to take these actions? 30.620 How will OWCP ascertain whether a claimant filed this type of tort suit and if he or she has been disqualified from receiving any benefits under Part B of EEOICPA? Coordination of Part E Benefits With State Workers' Compensation Benefits 30.625 What does “coordination of benefits” mean under Part E of EEOICPA? 30.626 How will OWCP coordinate compensation payable under Part E of EEOICPA with benefits from state workers' compensation programs? 30.627 Under what circumstances will OWCP waive the statutory requirement to coordinate these benefits? Subpart H—Information for Medical Providers Medical Records and Bills 30.700 What kind of medical records must providers keep? 30.701 How are medical bills to be submitted? 30.702 How should an employee prepare and submit requests for reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses? 30.703 What are the time limitations on OWCP's payment of bills? Medical Fee Schedule 30.705 What services are covered by the OWCP fee schedule? 30.706 How are the maximum fees defined? 30.707 How are payments for particular services calculated? 30.708 Does the fee schedule apply to every kind of procedure? 30.709 How are payments for medicinal drugs determined? 30.710 How are payments for inpatient medical services determined? 30.711 When and how are fees reduced? 30.712 If OWCP reduces a fee, may a provider request reconsideration of the reduction? 30.713 If OWCP reduces a fee, may a provider bill the employee for the balance? Exclusion of Providers 30.715 What are the grounds for excluding a provider for payment under this part? 30.716 What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies? 30.717 When are OWCP's exclusion procedures initiated? 30.718 How is a provider notified of OWCP's intent to exclude him or her? 30.719 What requirements must the provider's reply and OWCP's decision meet? 30.720 How can an excluded provider request a hearing? 30.721 How are hearings assigned and scheduled? 30.722 How are subpoenas or advisory opinions obtained? 30.723 How will the administrative law judge conduct the hearing and issue the recommended decision? 30.724 How can a party request review by OWCP of the administrative law judge's recommended decision? 30.725 What are the effects of non-automatic exclusion? 30.726 How can an excluded provider be reinstated? Subpart I—Wage-Loss Determinations Under Part E of EEOICPA General Provisions 30.800 What types of wage-loss are compensable under Part E of EEOICPA? 30.801 What special definitions does OWCP use in connection with Part E wage-loss determinations? Evidence of Wage-Loss 30.805 What evidence does OWCP use to determine a covered Part E employee's average annual wage and whether he or she experienced compensable wage-loss under Part E of EEOICPA? 30.806 May a claimant submit factual evidence in support of a different determination of average annual wage and/or wage-loss than that found by OWCP? Determinations of Average Annual Wage and Percentages of Loss 30.810 How will OWCP calculate the average annual wage of a covered Part E employee? 30.811 How will OWCP calculate the duration and extent of a covered Part E employee's initial period of compensable wage-loss? 30.812 May a covered Part E employee claim for subsequent periods of compensable wage-loss? Special Rules for Certain Survivor Claims Under Part E of EEOICPA 30.815 Are there special rules that OWCP will use to determine the extent of a deceased covered Part E employee's compensable wage-loss? Subpart J—Impairment Benefits Under Part E of EEOICPA General Provisions 30.900 Who can receive impairment benefits under Part E? 30.901 How does OWCP determine the extent of an employee's impairment that is due to a covered illness contracted through exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as appropriate? 30.902 How will OWCP calculate the amount of the award of impairment benefits that is payable under Part E? Medical Evidence of Impairment 30.905 How may an impairment evaluation be obtained? 30.906 Who will pay for an impairment evaluation? 30.907 Can an impairment evaluation obtained by OWCP be challenged prior to issuance of the recommended decision? 30.908 How will the FAB evaluate new medical evidence submitted to challenge the impairment determination in the recommended decision? Ratable Impairments 30.910 Will an impairment that cannot be assigned a numerical percentage using the AMA's *Guides* be included in the impairment rating? 30.911 Does maximum medical improvement always have to be reached for an impairment to be included in the impairment rating? 30.912 Can a covered Part E employee receive benefits for additional impairment following an award of such benefits by OWCP? 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. 4-2001, 66 FR 29656. Subpart A—General Provisions Introduction § 30.0 What are the provisions of EEOICPA, in general? Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 *et seq.* , provides for the payment of compensation benefits to covered Part B employees and, where applicable, survivors of such employees, of the United States Department of Energy (DOE), its predecessor agencies and certain of its contractors and subcontractors. Part B also provides for the payment of supplemental compensation benefits to other covered Part B employees who have already been found eligible for benefits under section 5 of the Radiation Exposure Compensation Act, as amended (RECA), 42 U.S.C. 2210 note, and where applicable, survivors of such persons. Part E of the Act provides for the payment of compensation benefits to covered Part E employees and, where applicable, survivors of such employees. The regulations in this part describe the rules governing filing, processing, and paying claims for benefits under both Part B and Part E of EEOICPA.
(a)Part B of EEOICPA provides for the payment of either lump-sum monetary compensation for the disability of a covered Part B employee due to an occupational illness or for monitoring for beryllium sensitivity, as well as for medical and related benefits for such illness. Part B also provides for the payment of monetary compensation for the disability of a covered Part B employee to specified survivors if the employee is deceased at the time of payment.
(b)Part E of EEOICPA provides for the payment of monetary compensation for the established wage-loss and/or impairment of a covered Part E employee due to a covered illness, and for medical and related benefits for such covered illness. Part E also provides for the payment of monetary compensation for the death (and established wage-loss, where applicable) of a covered Part E employee to specified survivors if the covered Part E employee is deceased at the time of payment.
(c)All types of benefits and conditions of eligibility listed in this section are subject to the provisions of EEOICPA and this part. § 30.1 What rules govern the administration of EEOICPA and this chapter? In accordance with EEOICPA, Executive Order 13179 and Secretary's Order No. 4-2001, the primary responsibility for administering the Act, except for those activities assigned to the Secretary of Health and Human Services (HHS), the Secretary of Energy and the Attorney General, has been delegated to the Assistant Secretary of Labor for Employment Standards. The Assistant Secretary, in turn, has delegated the responsibility for administering the Act to the Director of the Office of Workers' Compensation Programs (OWCP). Except as otherwise provided by law, the Director of OWCP and his or her designees have the exclusive authority to administer, interpret and enforce the provisions of the Act. § 30.2 In general, how have the tasks associated with the administration of EEOICPA claims process been assigned?
(a)In E.O. 13179, the President assigned the tasks associated with administration of the EEOICPA claims process among the Secretaries of Labor, HHS and Energy, and the Attorney General. In light of the fact that the Secretary of Labor has been assigned primary responsibility for administering EEOICPA, almost the entire claims process is within the exclusive control of OWCP. This means that all claimants file their claims with OWCP, and OWCP is responsible for granting or denying compensation under the Act (see §§ 30.100 through 30.102). OWCP also provides assistance to claimants and potential claimants by providing information regarding eligibility and other program requirements, including information on completing claim forms and the types and availability of medical testing and diagnostic services related to occupational illnesses under Part B of the Act and covered illnesses under Part E of the Act. In addition, OWCP provides an administrative review process for claimants who disagree with its recommended and final adverse decisions on claims of entitlement (see §§ 30.300 through 30.320).
(b)However, HHS has exclusive control of the portion of the claims process under which it provides reconstructed doses for certain radiogenic cancer claims (see § 30.115). HHS also has exclusive control of the process for designating classes of employees to be added to the Special Exposure Cohort under Part B of the Act, and has promulgated regulations governing that process at 42 CFR part 83. Finally, HHS has promulgated regulations at 42 CFR part 81 that set out guidelines that OWCP follows when it assesses the compensability of an employee's radiogenic cancer (see § 30.213). DOE and DOJ must, among other things, notify potential claimants and submit evidence that OWCP deems necessary for its adjudication of claims under EEOICPA (see §§ 30.105, 30.112, 30.206, 30.212 and 30.221). § 30.3 What do these regulations contain? This part 30 sets forth the regulations governing administration of all claims that are filed with OWCP, except to the extent specified in certain provisions. Its provisions are intended to assist persons seeking benefits under EEOICPA, as well as personnel in the various federal agencies and DOL who process claims filed under EEOICPA or who perform administrative functions with respect to EEOICPA. The various subparts of this part contain the following:
(a)Subpart A: The general statutory and administrative framework for processing claims under both Parts B and E of EEOICPA. It contains a statement of purpose and scope, together with definitions of terms, information regarding the disclosure of OWCP records, and a description of rights and penalties involving EEOICPA claims, including convictions for fraud.
(b)Subpart B: The rules for filing claims for entitlement under EEOICPA. It also addresses general standards regarding necessary evidence and the burden of proof, descriptions of basic forms and special procedures for certain cancer claims.
(c)Subpart C: The eligibility criteria for occupational illnesses and covered illnesses compensable under Parts B and E of EEOICPA, respectively.
(d)Subpart D: The rules governing the adjudication process leading to recommended and final decisions on claims for entitlement filed under Parts B and E of EEOICPA. It also describes the hearing and reopening processes.
(e)Subpart E: The rules governing medical care, second opinion and referee medical examinations and impairment evaluations directed by OWCP as part of its adjudication of entitlement, and medical reports and records in general. It also addresses the kinds of medical treatment that may be authorized and how medical bills are paid.
(f)Subpart F: The rules relating to the payment of monetary compensation available under Parts B and E of EEOICPA. It includes provisions on medical monitoring for beryllium sensitivity, on the identification, processing and recovery of overpayments of compensation, and on the maximum aggregate amount of compensation payable under Part E.
(g)Subpart G: The rules concerning the representation of claimants in connection with the administrative adjudication of claims before OWCP, subrogation of the United States, the effect of tort suits against beryllium vendors and atomic weapons employers, and the coordination of benefits under Part E of EEOICPA with state workers' compensation benefits for the same covered illness.
(h)Subpart H: Information for medical providers. It includes rules for medical reports, medical bills, and the OWCP medical fee schedule, as well as the provisions for exclusion of medical providers.
(i)Subpart I: The rules relating to the adjudication of alleged periods of wage-loss of covered Part E employees. It also includes provisions on the use by OWCP of Social Security Administration earnings information and certain medical evidence to establish compensable wage-loss.
(j)Subpart J: The rules relating to the adjudication of alleged permanent impairment due to the exposure of covered Part E employees to toxic substances. It includes provisions relating to the medical evaluation of ratable impairments, the rating of progressive conditions, and qualifications of physicians. Definitions § 30.5 What are the definitions used in this part?
(a)*Act* or *EEOICPA* means the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384 *et seq.* ).
(b)*Atomic weapon* means any device utilizing atomic energy, exclusive of the means for transporting or propelling the device (where such means is a separable and divisible part of the device), the principle purpose of which is for use as, or for development of, a weapon, a weapon prototype, or a weapon test device.
(c)*Atomic weapons employee* means:
(1)An individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; or (2)(i) An individual employed at a facility that the National Institute for Occupational Safety and Health (NIOSH) reported had a potential for significant residual contamination outside of the period described in paragraph (c)(1) of this section;
(ii)By the atomic weapons employer that owned the facility referred to in paragraph (c)(2)(i) of this section, or a subsequent owner or operator of such facility; and
(iii)During a period reported by NIOSH, in its report dated October 2003 and titled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,” or any update to that report, to have a potential for significant residual radioactive contamination.
(d)*Atomic weapons employer* means any entity, other than the United States, that:
(1)Processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and
(2)Is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.
(e)*Atomic weapons employer facility* means any facility, owned by an atomic weapons employer, that:
(1)Is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling; and
(2)Is designated as such in the list periodically published in the **Federal Register** by DOE.
(f)*Attorney General* means the Attorney General of the United States or the United States Department of Justice (DOJ).
(g)*Benefit* or *Compensation* means the money the Department pays to or on behalf of either a covered Part B employee under Part B, or a covered Part E employee under Part E, from the Energy Employees Occupational Illness Compensation Fund. However, the term “compensation” used in section 7385f(b) of EEOICPA (restricting entitlement to only one payment of compensation under Part B) means only the payments specified in section 7384s(a)(1) and in section 7384u(a). Except as used in section 7385f(b), these two terms also include any other amounts paid out of the Fund for such things as medical treatment, monitoring, examinations, services, appliances and supplies as well as for transportation and expenses incident to the securing of such medical treatment, monitoring, examinations, services, appliances, and supplies.
(h)*Beryllium sensitization or sensitivity* means that the individual has an abnormal beryllium lymphocyte proliferation test
(LPT)performed on either blood or lung lavage cells.
(i)*Beryllium vendor* means the specific corporations and named predecessor corporations listed in section 7384l(6) of the Act and any of the facilities designated as such in the list periodically published in the **Federal Register** by DOE.
(j)*Chronic silicosis* means a non-malignant lung disease if:
(1)The initial occupational exposure to silica dust preceded the onset of silicosis by at least 10 years; and
(2)A written diagnosis of silicosis is made by a medical doctor and is accompanied by:
(i)A chest radiograph, interpreted by an individual certified by NIOSH as a B reader, classifying the existence of pneumoconioses of category 1/0 or higher; or
(ii)Results from a computer assisted tomograph or other imaging technique that are consistent with silicosis; or
(iii)Lung biopsy findings consistent with silicosis.
(k)*Claim* means a written assertion to OWCP of an individual's entitlement to benefits under EEOICPA, submitted in a manner authorized by this part.
(l)*Claimant* means the individual who is alleged to satisfy the criteria for compensation under the Act.
(m)*Compensation fund* or *fund* means the fund established on the books of the Treasury for payment of benefits and compensation under the Act.
(n)*Contemporaneous record* means any document created at or around the time of the event that is recorded in the document.
(o)*Covered beryllium illness* means any of the following:
(1)Beryllium sensitivity as established by an abnormal LPT performed on either blood or lung lavage cells.
(2)Established chronic beryllium disease (see § 30.207(c)).
(3)Any injury, illness, impairment, or disability sustained as a consequence of a covered beryllium illness referred to in paragraphs (o)(1) or
(2)of this section.
(p)*Covered Part E employee* means, under Part E of the Act, a Department of Energy contractor employee or a RECA section 5 uranium worker who has been determined by OWCP to have contracted a covered illness (see paragraph
(r)of this section) through exposure at a Department of Energy facility or a RECA section 5 facility, as appropriate.
(q)*Covered Part B employee* means, under Part B of the Act, a covered beryllium employee (see § 30.205), a covered employee with cancer (see § 30.210(a)), a covered employee with chronic silicosis (see § 30.220), or a covered uranium employee (see paragraph
(s)of this section).
(r)*Covered illness* means, under Part E of the Act relating to exposures at a DOE facility or a RECA section 5 facility, an illness or death resulting from exposure to a toxic substance.
(s)*Covered uranium employee* means, under Part B of the Act, an individual who has been determined by DOJ to be entitled to an award under section 5 of RECA, whether or not the individual was the employee or the deceased employee's survivor.
(t)*Current or former employee as defined in 5 U.S.C. 8101(1)* as used in § 30.205(a)(1) means an individual who fits within one of the following listed groups:
(1)A civil officer or employee in any branch of the Government of the United States, including an officer or employee of an instrumentality wholly owned by the United States;
(2)An individual rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual;
(3)An individual, other than an independent contractor or individual employed by an independent contractor, employed on the Menominee Indian Reservation in Wisconsin in operations conducted under a statute relating to tribal timber and logging operations on that reservation;
(4)An individual appointed to a position on the office staff of a former President; or
(5)An individual selected and serving as a Federal petit or grand juror.
(u)*Department* means the United States Department of Labor (DOL).
(v)*Department of Energy* or *DOE* includes the predecessor agencies of the DOE, including the Manhattan Engineering District.
(w)*Department of Energy contractor employee* means any of the following:
(1)An individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months.
(2)An individual who is or was employed at a DOE facility by:
(i)An entity that contracted with the DOE to provide management and operating, management and integration, or environmental remediation at the facility; or
(ii)A contractor or subcontractor that provided services, including construction and maintenance, at the facility. (x)(1) *Department of Energy facility* means, as determined by the Director of OWCP, any building, structure, or premise, including the grounds upon which such building, structure, or premise is located:
(i)In which operations are, or have been, conducted by, or on behalf of, the DOE (except for buildings, structures, premises, grounds, or operations covered by E.O. 12344, dated February 1, 1982, pertaining to the Naval Nuclear Propulsion Program); and
(ii)With regard to which the DOE has or had:
(A)A proprietary interest; or
(B)Entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.
(2)DOL has adopted the determinations of the Department of Energy regarding Department of Energy facilities that were contained in the list of facilities published in the **Federal Register** on August 23, 2004 (69 FR 51825). DOL will periodically update this list as it deems appropriate in its sole discretion by publishing a revised list of Department of Energy facilities in the **Federal Register** .
(y)*Disability* means, for purposes of determining entitlement to payment of Part B benefits under section 7384s(a)(1) of the Act, having been determined by OWCP to have or have had established chronic beryllium disease, cancer, or chronic silicosis.
(z)*Eligible surviving beneficiary* means any individual who is entitled under sections 7384s(e), 7384u(e), or 7385s-3(c) and
(d)of the Act to receive a payment on behalf of a deceased covered Part B employee or a deceased covered Part E employee.
(aa)*Employee* means either a current or former employee.
(bb)*Occupational illness* means, under Part B of the Act, a covered beryllium illness, cancer sustained in the performance of duty as defined in § 30.210(a), specified cancer, chronic silicosis, or an illness for which DOJ has awarded compensation under section 5 of RECA.
(cc)*OWCP* means the Office of Workers' Compensation Programs, United States Department of Labor. One of the four divisions of OWCP is the Division of Energy Employees Occupational Illness Compensation.
(dd)*Physician* includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. The term “physician” includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.
(ee)*Qualified physician* means any physician who has not been excluded under the provisions of subpart H of this part. Except as otherwise provided by regulation, a qualified physician shall be deemed to be designated or approved by OWCP.
(ff)*Specified cancer* (as defined in section 4(b)(2) of RECA and in EEOICPA) means:
(1)Leukemia (other than chronic lymphocytic leukemia) provided that the onset of the disease was at least 2 years after first exposure;
(2)Lung cancer (other than in situ lung cancer that is discovered during or after a post-mortem exam);
(3)Bone cancer;
(4)Renal cancers; or
(5)The following diseases, provided onset was at least 5 years after first exposure:
(i)Multiple myeloma;
(ii)Lymphomas (other than Hodgkin's disease); and
(iii)Primary cancer of the:
(A)Thyroid;
(B)Male or female breast;
(C)Esophagus;
(D)Stomach;
(E)Pharynx;
(F)Small intestine;
(G)Pancreas;
(H)Bile ducts;
(I)Gall bladder;
(J)Salivary gland;
(K)Urinary bladder;
(L)Brain;
(M)Colon;
(N)Ovary; or
(O)Liver (except if cirrhosis or hepatitis B is indicated).
(6)The specified diseases designated in this section mean the physiological condition or conditions that are recognized by the National Cancer Institute under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.
(gg)*Survivor* means:
(1)For claims under Part B of the Act, and subject to paragraph (gg)(3) of this section, a surviving spouse, child, parent, grandchild and grandparent of a deceased covered Part B employee.
(2)For claims under Part E of the Act, and subject to paragraph (gg)(3) of this section, a surviving spouse and child of a deceased covered Part E employee.
(3)Those individuals listed in paragraphs (gg)(1) and (gg)(2) of this section do not include any individuals not living as of the time OWCP makes a lump-sum payment or payments to an eligible surviving beneficiary or beneficiaries.
(hh)*Time of injury* means:
(1)In regard to a claim arising out of exposure to beryllium or silica, the last date on which a covered Part B employee was exposed to such substance in the performance of duty in accordance with sections 7384n(a) or 7384r(c) of the Act; or
(2)In regard to a claim arising out of exposure to radiation under Part B, the last date on which a covered Part B employee was exposed to radiation in the performance of duty in accordance with section 7384n(b) of the Act or, in the case of a member of the Special Exposure Cohort, the last date on which the member of the Special Exposure Cohort was employed at the Department of Energy facility or the atomic weapons employer facility at which the member was exposed to radiation; or
(3)In regard to a claim arising out of exposure to a toxic substance, the last date on which a covered Part E employee was employed at the Department of Energy facility or RECA section 5 facility, as appropriate, at which the exposure took place.
(ii)*Toxic substance* means any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature.
(jj)*Workday* means a single workshift whether or not it occurred on more than one calendar day. Information in Program Records § 30.10 Are all OWCP records relating to claims filed under EEOICPA considered confidential? All OWCP records relating to claims for benefits under EEOICPA are considered confidential and may not be released, inspected, copied or otherwise disclosed except as provided in the Freedom of Information Act and the Privacy Act of 1974. § 30.11 Who maintains custody and control of claim records? All OWCP records relating to claims for benefits filed under the Act are covered by the Privacy Act system of records entitled DOL/ESA-49 (Office of Workers' Compensation Programs, Energy Employees Occupational Illness Compensation Program Act File). This system of records is maintained by and under the control of OWCP, and, as such, all records covered by DOL/ESA-49 are official records of OWCP. The protection, release, inspection and copying of records covered by DOL/ESA-49 shall be accomplished in accordance with the rules, guidelines and provisions of this part, as well as those contained in 29 CFR parts 70 and 71, and with the notice of the system of records and routine uses published in the **Federal Register** . All questions relating to access, disclosure, and/or amendment of claims records maintained by OWCP are to be resolved in accordance with this section. § 30.12 What process is used by a person who wants to obtain copies of or amend EEOICPA claim records?
(a)A claimant seeking copies of his or her official EEOICPA file should address a request to the District Director of the OWCP district office having custody of the file.
(b)Any request to amend a record covered by DOL/ESA-49 should be directed to the district office having custody of the official file.
(c)Any administrative appeal taken from a denial issued by OWCP under this section shall be filed with the Solicitor of Labor in accordance with 29 CFR 71.7 and 71.9. Rights and Penalties § 30.15 May EEOICPA benefits be assigned, transferred or garnished?
(a)Pursuant to section 7385f(a) of the Act, no claim for EEOICPA benefits may be assigned or transferred.
(b)Provisions of the Social Security Act (42 U.S.C. 659) and regulations issued by the Office of Personnel Management at 5 CFR part 581 permit the garnishment of payments of EEOICPA monetary benefits to collect overdue alimony and child support. A request to garnish a payment for either of these purposes should be submitted to the district office that is handling the EEOICPA claim, and must be accompanied by a copy of the pertinent state agency or court order. § 30.16 What penalties may be imposed in connection with a claim under the Act?
(a)Other statutory provisions make it a crime to file a false or fraudulent claim or statement with the federal government in connection with a claim under the Act. Included among these provisions is 18 U.S.C. 1001. Enforcement of criminal provisions that may apply to claims under the Act is within the jurisdiction of the Department of Justice.
(b)In addition, administrative proceedings may be initiated under the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801 *et seq.* , to impose civil penalties and assessments against persons or entities who make, submit or present, or cause to be made, submitted or presented, false, fictitious or fraudulent claims or written statements to OWCP in connection with a claim under EEOICPA. The Department's regulations implementing PFCRA are found at 29 CFR part 22. § 30.17 Is a beneficiary who defrauds the government in connection with a claim for EEOICPA benefits still entitled to those benefits? When a beneficiary either pleads guilty to or is found guilty on either federal or state criminal charges of defrauding the federal or a state government in connection with a claim for benefits under the Act or any other federal or state workers' compensation law, the beneficiary forfeits (effective the date either the guilty plea is accepted or a verdict of guilty is returned after trial) any entitlement to any further benefits for any injury, illness or death covered by this part for which the time of injury was on or before the date of such guilty plea or verdict. Any subsequent change in or recurrence of the beneficiary's medical condition does not affect termination of entitlement under this section. Subpart B—Filing Claims; Evidence and Burden of Proof; Special Procedures for Certain Cancer Claims Filing Claims for Benefits Under EEOICPA § 30.100 In general, how does an employee file an initial claim for benefits?
(a)To claim benefits under EEOICPA, an employee must file a claim in writing. Form EE-1 should be used for this purpose, but any written communication that requests benefits under EEOICPA will be considered a claim. It will, however, be necessary for an employee to submit a Form EE-1 for OWCP to fully develop the claim. Copies of Form EE-1 may be obtained from OWCP or on the Internet at *http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.* The employee's claim must be filed with OWCP, but another person may do so on the employee's behalf.
(b)The employee may choose, at his or her own option, to file for benefits for only certain conditions that are potentially compensable under the Act ( *e.g.* , the employee may not want to claim for an occupational illness or a covered illness for which a payment has been received that would necessitate an offset of EEOICPA benefits under the provisions of § 30.505(b) of these regulations). The employee may withdraw his or her claim by so requesting in writing to OWCP at any time before OWCP determines his or her eligibility for benefits.
(c)Except as provided in paragraph
(d)of this section, a claim is considered to be “filed” on the date that the employee mails his or her claim to OWCP, as determined by postmark, or on the date that the claim is received by OWCP, whichever is the earliest determinable date. However, in no event will a claim under Part B of EEOICPA be considered to be “filed” earlier than July 31, 2001, nor will a claim under Part E of EEOICPA be considered to be “filed” earlier than October 30, 2000.
(1)The employee, or the person filing the claim on behalf of the employee, shall affirm that the information provided on the Form EE-1 is true, and must inform OWCP of any subsequent changes to that information.
(2)Except for a covered uranium employee filing a claim under Part B of the Act, the employee is responsible for submitting with his or her claim, or arranging for the submission of, medical evidence to OWCP that establishes that he or she sustained an occupational illness and/or a covered illness. This required medical evidence is described in § 30.114 and does not refer to mere recitations of symptoms the employee experienced that the employee believes indicate that he or she sustained an occupational illness or a covered illness.
(d)For those claims under Part E of EEOICPA that were originally filed with DOE as claims for assistance under former section 7385o of EEOICPA (which was repealed on October 28, 2004), a claim is considered to be “filed” on the date that the employee mailed his or her claim to DOE, as determined by postmark, or on the date that the claim was received by DOE, whichever is the earliest determinable date. However, in no event will a claim referred to in this paragraph be considered to be “filed” earlier than October 30, 2000. § 30.101 In general, how is a survivor's claim filed?
(a)A survivor of an employee who sustained an occupational illness or a covered illness must file a claim for compensation in writing. Form EE-2 should be used for this purpose, but any written communication that requests survivor benefits under the Act will be considered a claim. It will, however, be necessary for a survivor to submit a Form EE-2 for OWCP to fully develop the claim. Copies of Form EE-2 may be obtained from OWCP or on the Internet at *http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.* The survivor's claim must be filed with OWCP, but another person may do so on the survivor's behalf. Although only one survivor needs to file a claim under this section to initiate the development process, OWCP will distribute any monetary benefits payable on the claim among all eligible surviving beneficiaries who have filed claims with OWCP.
(b)A survivor may choose, at his or her own option, to file for benefits for only certain conditions that are potentially compensable under the Act ( *e.g.* , the survivor may not want to claim for an occupational illness or a covered illness for which a payment has been received that would necessitate an offset of EEOICPA benefits under the provisions of § 30.505(b) of these regulations). The survivor may withdraw his or her claim by so requesting in writing to OWCP at any time before OWCP determines his or her eligibility for benefits.
(c)A survivor must be alive to receive any payment under EEOICPA; there is no vested right to such payment.
(d)Except as provided in paragraph
(e)of this section, a survivor's claim is considered to be “filed” on the date that the survivor mails his or her claim to OWCP, as determined by postmark, or the date that the claim is received by OWCP, whichever is the earliest determinable date. However, in no event will a survivor's claim under Part B of the Act be considered to be “filed” earlier than July 31, 2001, nor will a survivor's claim under Part E of the Act be considered to be “filed” earlier than October 30, 2000.
(1)The survivor, or the person filing the claim on behalf of the survivor, shall affirm that the information provided on the Form EE-2 is true, and must inform OWCP of any subsequent changes to that information.
(2)Except for the survivor of a covered uranium employee claiming under Part B of the Act, the survivor is responsible for submitting, or arranging for the submission of, evidence to OWCP that establishes that the employee upon whom the survivor's claim is based was eligible for such benefits, including medical evidence that establishes that the employee sustained an occupational illness or a covered illness. This required medical evidence is described in § 30.114 and does not refer to mere recitations by the survivor of symptoms the employee experienced that the survivor believes indicate that the employee sustained an occupational illness or a covered illness.
(e)For those claims under Part E of EEOICPA that were originally filed with DOE as claims for assistance under former section 7385o of EEOICPA (which was repealed on October 28, 2004), a claim is considered to be “filed” on the date that the survivor mailed his or her claim to DOE, as determined by postmark, or on the date that the claim was received by DOE, whichever is the earliest determinable date. However, in no event will a claim referred to in this paragraph be considered to be “filed” earlier than October 30, 2000.
(f)A spouse or a child of a deceased DOE contractor employee or RECA section 5 uranium worker, who is not a covered spouse or covered child under Part E, may submit a written request to OWCP for a determination of whether that deceased DOE contractor employee or RECA section 5 uranium worker contracted a covered illness under section 7385s-4(d) of EEOICPA.
(1)Any such request submitted pursuant to paragraph
(f)of this section will not be considered a survivor's claim for benefits under Part E of the Act.
(2)As part of its consideration of any request submitted pursuant to paragraph
(f)of this section, OWCP will apply the eligibility criteria in subpart C of this part. However, the adjudicatory procedures contained in subpart D of this part will not apply to OWCP's consideration of such a request, and OWCP's response to the request will not constitute a final agency decision on entitlement to any benefits under EEOICPA. § 30.102 In general, how does an employee file a claim for additional impairment or wage-loss under Part E of EEOICPA?
(a)An employee previously awarded impairment benefits by OWCP may file a claim for additional impairment benefits. Such claim must be based on an increase in the employee's minimum impairment rating attributable to the covered illness or illnesses from the impairment rating that formed the basis for the last award of such benefits by OWCP. OWCP will only adjudicate claims for such an increased rating that are filed at least two years from the date of the last award of impairment benefits. However, OWCP will not wait two years before it will adjudicate a claim for additional impairment that is based on an allegation that the employee sustained a new covered illness.
(b)An employee previously awarded wage-loss benefits by OWCP may be eligible for additional wage-loss benefits for periods of wage-loss that were not addressed in a prior claim only if the employee had not reached his or her Social Security retirement age at the time of the prior award. OWCP will adjudicate claims filed on a yearly basis in connection with each succeeding calendar year for which qualifying wage-loss under Part E is alleged, as well as claims that aggregate calendar years for which qualifying wage-loss is alleged.
(c)Employees should use Form EE-10 to claim for additional impairment or wage-loss benefits under Part E of EEOICPA.
(1)The employee, or the person filing the claim on behalf of the employee, shall affirm that the information provided on Form EE-10 is true, and must inform OWCP of any subsequent changes to that information.
(2)The employee is responsible for submitting with any claim filed under this section, or arranging for the submission of, factual and medical evidence establishing that he or she experienced another calendar year of qualifying wage-loss, and/or medical evidence establishing that he or she has an increased minimum impairment rating, as appropriate. § 30.103 How does a claimant make sure that OWCP has the evidence necessary to process the claim?
(a)Claims and certain required submissions should be made on forms prescribed by OWCP. Persons submitting forms shall not modify these forms or use substitute forms. Form No. Title
(1)EE-1 Claim for Benefits Under the Energy Employees Occupational Illness Compensation Program Act.
(2)EE-2 Claim for Survivor Benefits Under the Energy Employees Occupational Illness Compensation Program Act.
(3)EE-3 Employment History for a Claim Under the Energy Employees Occupational Illness Compensation Program Act.
(4)EE-4 Employment History Affidavit for a Claim Under the Energy Employees Occupational Illness Compensation Program Act.
(b)Copies of the forms listed in this section are available for public inspection at the Office of Workers' Compensation Programs, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. They may also be obtained from OWCP district offices and on the Internet at *http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.* Verification of Alleged Employment § 30.105 What must DOE do after an employee or survivor files a claim?
(a)After it receives a claim for benefits described in §§ 30.100 or 30.101, OWCP may request that DOE verify the employment history provided by the claimant. Upon receipt of such a request, DOE will complete Form EE-5 as soon as possible and transmit the completed form to OWCP. On this form, DOE will certify either that it concurs with the employment history provided by the claimant, that it disagrees with such history, or that it can neither concur nor disagree after making a reasonable search of its records and also making a reasonable effort to locate pertinent records not already in its possession.
(b)Claims for additional impairment or wage-loss benefits under Part E of the Act described in § 30.102 will not require any verification of employment by DOE, since OWCP will have made any required findings on this particular issue when it adjudicated the employee's initial claim for benefits. § 30.106 Can OWCP request employment verification from other sources?
(a)For most claims filed under EEOICPA, DOE has access to sufficient factual information to enable it to fulfill its obligations described in § 30.105(a). However, in instances where it lacks such information, DOE may arrange for other entities to provide OWCP with the information necessary to verify an employment history submitted as part of a claim. These other entities may consist of either current or former DOE contractors and subcontractors, atomic weapons employers, beryllium vendors, or other entities with access to relevant employment information.
(b)On its own initiative, OWCP may also arrange for entities other than DOE to perform the employment verification duties described in § 30.105(a). Evidence and Burden of Proof § 30.110 Who is entitled to compensation under the Act?
(a)Under Part B of EEOICPA, compensation is payable to the following covered Part B employees, or their survivors:
(1)A “covered beryllium employee” (as described in § 30.205(a)) with a covered beryllium illness (as defined in § 30.5(o)) who was exposed to beryllium in the performance of duty (in accordance with § 30.206).
(2)A “covered Part B employee with cancer” (as described in § 30.210(a)).
(3)A “covered Part B employee with chronic silicosis” (as described in § 30.220).
(4)A “covered uranium employee” (as defined in § 30.5(s)).
(b)Under Part E of EEOICPA, compensation is payable to a “covered Part E employee” (as defined in § 30.5(p)), or his or her survivors.
(c)Any claim that does not meet all of the criteria for at least one of these categories, as set forth in the regulations in this part, must be denied.
(d)All claims for benefits under the Act must comply with the claims procedures and requirements set forth in subpart B of this part before any payment can be made from the Fund. § 30.111 What is the claimant's responsibility with respect to burden of proof, production of documents, presumptions, and affidavits?
(a)Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category set forth in § 30.110. Proof by a preponderance of the evidence means that it is more likely than not that the proposition to be proved is true. Subject to the exceptions expressly provided in the Act and the regulations in this part, the claimant also bears the burden of providing to OWCP all written medical documentation, contemporaneous records, or other records and documents necessary to establish any and all criteria for benefits set forth in these regulations.
(b)In the event that the claim lacks required information or supporting documentation, OWCP will notify the claimant of the deficiencies and provide him or her an opportunity for correction of the deficiencies.
(c)Written affidavits or declarations, subject to penalty for perjury, by the employee, survivor or any other person, will be accepted as evidence of employment history and survivor relationship for purposes of establishing eligibility and may be relied on in determining whether a claim meets the requirements of the Act for benefits if, and only if, such person attests that due diligence was used to obtain records in support of the claim, but that no records exist.
(d)A claimant will not be entitled to any presumption otherwise provided for in these regulations if substantial evidence exists that rebuts the existence of the fact that is the subject of the presumption. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. When such evidence exists, the claimant shall be notified and afforded the opportunity to submit additional written medical documentation or records. § 30.112 What kind of evidence is needed to establish covered employment and how will that evidence be evaluated?
(a)Evidence of covered employment may include: employment records; pay stubs; tax returns; Social Security records; and written affidavits or declarations, subject to penalty of perjury, by the employee, survivor or any other person. However, no one document is required to establish covered employment and a claimant is not required to submit all of the evidence listed above. A claimant may submit other evidence not listed above to establish covered employment. To be acceptable as evidence, all documents and records must be legible. OWCP will accept photocopies, certified copies, and original documents and records.
(b)Pursuant to §§ 30.105 and/or 30.106, DOE or another entity verifying alleged employment shall certify that it concurs with the employment information provided by the claimant, that it disagrees with the information provided by the claimant, or, after a reasonable search of its records and a reasonable effort to locate pertinent records not already in its possession, it can neither concur nor disagree with the information provided by the claimant.
(1)If DOE or another entity certifies that it concurs with the employment information provided by the claimant, then the criterion for covered employment will be established.
(2)If DOE or another entity certifies that it disagrees with the information provided by the claimant or that after a reasonable search of its records and a reasonable effort to locate pertinent records not already in its possession it can neither concur nor disagree with the information provided by the claimant, OWCP will evaluate the evidence submitted by the claimant to determine whether the claimant has established covered employment by a preponderance of the evidence. OWCP may request additional evidence from the claimant to demonstrate that the claimant has met the criterion for covered employment. Nothing in this section shall be construed to limit OWCP's ability to require additional documentation.
(3)If the only evidence of covered employment is a self-serving affidavit and DOE or another entity either disagrees with the assertion of covered employment or cannot concur or disagree with the assertion of covered employment, then OWCP may reject the claim based upon a lack of evidence of covered employment. § 30.113 What are the requirements for written medical documentation, contemporaneous records, and other records or documents?
(a)All written medical documentation, contemporaneous records, and other records or documents submitted by an employee or his or her survivor to prove any criteria provided for in these regulations must be legible. OWCP will accept photocopies, certified copies, and original documents and records.
(b)To establish eligibility, the employee or his or her survivor may be required to provide, where appropriate, additional contemporaneous records to the extent they exist or an authorization to release additional contemporaneous records or a statement by the custodian(s) of the record(s) certifying that the requested record(s) no longer exist. Nothing in this section shall be construed to limit OWCP's ability to require additional documentation.
(c)If a claimant submits a certified statement, by a person with knowledge of the facts, that the medical records containing a diagnosis and date of diagnosis of a covered medical condition no longer exist, then OWCP may consider other evidence to establish a diagnosis and date of diagnosis of a covered medical condition. However, if the certified statement is a self-serving document, OWCP may reject the claim based upon a lack of evidence of a covered medical condition. § 30.114 What kind of evidence is needed to establish a compensable medical condition and how will that evidence be evaluated?
(a)Evidence of a compensable medical condition may include: a physician's report, laboratory reports, hospital records, death certificates, x-rays, magnetic resonance images or reports, computer axial tomography or other imaging reports, lymphocyte proliferation testings, beryllium patch tests, pulmonary function or exercise testing results, pathology reports including biopsy results and other medical records. A claimant is not required to submit all of the evidence listed in this paragraph. A claimant may submit other evidence that is not listed in this paragraph to establish a compensable medical condition. Nothing in this section shall be construed to limit OWCP's ability to require additional documentation.
(b)The medical evidence submitted will be used to establish the diagnosis and the date of diagnosis of the compensable medical condition.
(1)For covered beryllium illnesses, additional medical evidence, as set forth in § 30.207, is required to establish a beryllium illness.
(2)For chronic silicosis, additional medical evidence, as set forth in § 30.222, is required to establish chronic silicosis.
(3)For consequential injuries, illnesses, impairments or diseases, the claimant must also submit a physician's fully rationalized medical report showing a causal relationship between the resulting injury, illness, impairment or disease and the compensable medical condition.
(c)OWCP will evaluate the medical evidence in accordance with recognized and accepted diagnostic criteria used by physicians to determine whether the claimant has established the medical condition for which compensation is sought in accordance with the requirements of the Act. Special Procedures for Certain Radiogenic Cancer Claims § 30.115 For those radiogenic cancer claims that do not seek benefits under Part B of the Act pursuant to the Special Exposure Cohort provisions, what will OWCP do once it determines that an employee contracted cancer?
(a)Other than claims for a non-radiogenic cancer listed by HHS at 42 CFR 81.30, or claims seeking benefits under Part E of the Act that have previously been accepted under section 7384u of the Act, or claims previously accepted under Part B pursuant to the Special Exposure Cohort provisions, OWCP will forward the claim package (including, but not limited to, Forms EE-1, EE-2, EE-3, EE-4 and EE-5, as appropriate) to HHS for dose reconstruction. At that point in time, development of the claim by OWCP may be suspended.
(1)This package will include OWCP's initial findings in regard to the diagnosis and date of diagnosis of the employee, as well as any employment history compiled by OWCP (including information such as dates and locations worked, and job titles). The package, however, will not constitute either a recommended or final decision by OWCP on the claim.
(2)HHS will then reconstruct the radiation dose of the employee, after such further development of the employment history as it may deem necessary, and provide OWCP, DOE and the claimant with the final dose reconstruction report. The final dose reconstruction record will be delivered to OWCP with the final dose reconstruction report and to the claimant upon request.
(b)Following its receipt of the reconstructed dose from HHS, OWCP will resume its adjudication of the cancer claim and consider whether the claimant has met the eligibility criteria set forth in subpart C of this part. However, during the period before it receives a reconstructed dose from HHS, OWCP may continue to develop other aspects of a claim, to the extent that it deems such development to be appropriate. Subpart C—Eligibility Criteria General Provisions § 30.200 What is the scope of this subpart? The regulations in this subpart describe the criteria for eligibility for benefits for claims under Part B of EEOICPA relating to covered beryllium illness under sections 7384l, 7384n, 7384s and 7384t of the Act; for cancer under sections 7384l, 7384n, 7384q and 7384t of the Act; for chronic silicosis under sections 7384l, 7384r, 7384s and 7384t of the Act; and for claims relating to covered uranium employees under sections 7384t and 7384u of the Act. These regulations also describe the criteria for eligibility for benefits for claims under Part E of EEOICPA relating to covered illnesses under sections 7385s-4 and 7385s-5 of the Act. This subpart describes the type and extent of evidence that will be necessary to establish the criteria for eligibility for compensation for these illnesses. Eligibility Criteria for Claims Relating to Covered Beryllium Illness Under Part B of EEOICPA § 30.205 What are the criteria for eligibility for benefits relating to beryllium illnesses covered under Part B of EEOICPA? To establish eligibility for benefits under this section, the claimant must establish the criteria set forth in both paragraphs
(a)and
(b)of this section:
(a)The employee is a covered beryllium employee only if the criteria in paragraphs (a)(1) and (a)(3) of this section, or (a)(2) and (a)(3) of this section, are established:
(1)The employee is a “current or former employee as defined in 5 U.S.C. 8101(1)” (see § 30.5(t) of this part) who may have been exposed to beryllium at a DOE facility or at a facility owned, operated, or occupied by a beryllium vendor; or
(2)The employee is a current or former civilian employee of:
(i)Any entity that contracted with the DOE to provide management and operation, management and integration, or environmental remediation of a DOE facility; or
(ii)Any contractor or subcontractor that provided services, including construction and maintenance, at such a facility; or
(iii)A beryllium vendor, or of a contractor or subcontractor of a beryllium vendor, during a period when the vendor was engaged in activities related to the production or processing of beryllium for sale to, or use by, the DOE, including periods during which environmental remediation of a vendor's facility was undertaken pursuant to a contract between the vendor and DOE; and
(3)The civilian employee was exposed to beryllium in the performance of duty by establishing that he or she was, during a period when beryllium dust, particles, or vapor may have been present at such a facility:
(i)Employed at a DOE facility (as defined in § 30.5(x) of this part); or
(ii)Present at a DOE facility, or at a facility owned, operated, or occupied by a beryllium vendor, because of his or her employment by the United States, a beryllium vendor, a contractor or subcontractor of a beryllium vendor, or a contractor or subcontractor of the DOE. Under this paragraph, exposure to beryllium in the performance of duty can be established whether or not the beryllium that may have been present at such facility was produced or processed for sale to, or use by, DOE.
(b)The employee has one of the following:
(1)Beryllium sensitivity as established by an abnormal beryllium LPT performed on either blood or lung lavage cells.
(2)Established chronic beryllium disease.
(3)Any injury, illness, impairment, or disability sustained as a consequence of the conditions specified in paragraphs (b)(1) and
(2)of this section. § 30.206 How does a claimant prove that the employee was a “covered beryllium employee” exposed to beryllium dust, particles or vapor in the performance of duty?
(a)Proof of employment at or physical presence at a DOE facility, or a facility owned, operated, or occupied by a beryllium vendor, because of employment by the United States, a beryllium vendor, or a contractor or subcontractor of a beryllium vendor during a period when beryllium dust, particles, or vapor may have been present at such a facility, may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was employed or present at a covered facility and the time period of such employment or presence.
(b)If the evidence shows that exposure occurred while the employee was employed or present at a facility during a time frame that is outside the relevant time frame indicated for that facility, OWCP may request that DOE provide additional information on the facility. OWCP will determine whether the evidence of record supports enlarging the relevant time frame for that facility.
(c)If the evidence shows that exposure occurred while the employee was employed or present at a facility that would have to be designated by DOE as a beryllium vendor under section 7384m of the Act to be a covered facility, and that the facility has not been so designated, OWCP will deny the claim on the ground that the facility is not a covered facility.
(d)Records from the following sources may be considered as evidence for purposes of establishing employment or presence at a covered facility:
(1)Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.
(2)Records or documents created by any vendor, processor, or producer of beryllium or related products designated as a beryllium vendor by the DOE in accordance with section 7384m of the Act.
(3)Records or documents created as a by product of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE. § 30.207 How does a claimant prove a diagnosis of a beryllium disease covered under Part B?
(a)Written medical documentation is required in all cases to prove that the employee developed a covered beryllium illness. Proof that the employee developed a covered beryllium illness must be made by using the procedures outlined in paragraphs (b), (c), or
(d)of this section.
(b)Beryllium sensitivity or sensitization is established with an abnormal LPT performed on either blood or lung lavage cells.
(c)Chronic beryllium disease is established in the following manner:
(1)For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph
(b)of this section), together with lung pathology consistent with chronic beryllium disease, including the following:
(i)A lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;
(ii)A computerized axial tomography scan showing changes consistent with chronic beryllium disease; or
(iii)Pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.
(2)For diagnoses before January 1, 1993, the presence of the following:
(i)Occupational or environmental history, or epidemiologic evidence of beryllium exposure; and
(ii)Any three of the following criteria:
(A)Characteristic chest radiographic (or computed tomography (CT)) abnormalities.
(B)Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.
(C)Lung pathology consistent with chronic beryllium disease.
(D)Clinical course consistent with a chronic respiratory disorder.
(E)Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).
(d)An injury, illness, impairment or disability sustained as a consequence of beryllium sensitivity or established chronic beryllium disease must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disability and the beryllium sensitivity or established chronic beryllium disease. Neither the fact that the injury, illness, impairment or disability manifests itself after a diagnosis of beryllium sensitivity or established chronic beryllium disease, nor the belief of the claimant that the injury, illness, impairment or disability was caused by the beryllium sensitivity or established chronic beryllium disease, is sufficient in itself to prove a causal relationship. Eligibility Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E of EEOICPA § 30.210 What are the criteria for eligibility for benefits relating to radiogenic cancer?
(a)To establish eligibility for benefits for radiogenic cancer under Part B of EEOICPA, an employee or his or her survivor must show that:
(1)The employee has been diagnosed with one of the forms of cancer specified in § 30.5(ff) of this part; and
(i)Is a member of the Special Exposure Cohort (as described in § 30.214(a) of this subpart) who, as a civilian DOE employee or civilian DOE contractor employee, contracted the specified cancer after beginning employment at a DOE facility; or
(ii)Is a member of the Special Exposure Cohort (as described in § 30.214(a) of this subpart) who, as a civilian atomic weapons employee, contracted the specified cancer after beginning employment at an atomic weapons employer facility (as defined in § 30.5(e)); or
(2)The employee has been diagnosed with cancer; and (i)(A) Is/was a civilian DOE employee who contracted that cancer after beginning employment at a DOE facility; or
(B)Is/was a civilian DOE contractor employee who contracted that cancer after beginning employment at a DOE facility; or
(C)Is/was a civilian atomic weapons employee who contracted that cancer after beginning employment at an atomic weapons employer facility; and
(ii)The cancer was at least as likely as not related to the employment at the DOE facility or atomic weapons employer facility; or
(3)The employee has been diagnosed with an injury, illness, impairment or disease that arose as a consequence of the accepted cancer. (b)(1) To establish eligibility for benefits for radiogenic cancer under Part E of EEOICPA, an employee or his or her survivor must show that:
(i)The employee has been diagnosed with cancer; and
(A)Is/was a civilian DOE contractor employee or a civilian RECA section 5 uranium worker who contracted that cancer after beginning employment at a DOE facility or a RECA section 5 facility; and
(B)The cancer was at least as likely as not related to exposure to a toxic substance of a radioactive nature at a DOE facility or a RECA section 5 facility; and
(C)It is at least as likely as not that the exposure to such toxic substance(s) was related to employment at a DOE facility or a RECA section 5 facility; or
(ii)The employee has been diagnosed with an injury, illness, impairment or disease that arose as a consequence of the accepted cancer.
(2)Eligibility for benefits for radiogenic cancer under Part E in a claim that has previously been accepted under Part B pursuant to the Special Exposure Cohort provisions is described in § 30.230(a) of these regulations. § 30.211 How does a claimant establish that the employee has or had contracted cancer? A claimant establishes that the employee has or had contracted a specified cancer (as defined in § 30.5(ff)) or other cancer with medical evidence that sets forth an explicit diagnosis of cancer and the date on which that diagnosis was first made. § 30.212 How does a claimant establish that the employee contracted cancer after beginning employment at a DOE facility, an atomic weapons employer facility or a RECA section 5 facility?
(a)Proof of employment by the DOE or a DOE contractor at a DOE facility, or by an atomic weapons employer at an atomic weapons employer facility, or at a RECA section 5 facility, may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and the time period(s) of such employment. (b)(1) Except as provided in paragraph (b)(2) of this section, if the evidence shows that exposure occurred while the employee was employed at a facility during a time frame that is outside the relevant period indicated for that facility, OWCP may request that DOE provide additional information on the facility. OWCP will determine whether the evidence of record supports enlarging the relevant period for that facility.
(2)OWCP may choose not to request that DOE provide additional information on an atomic weapons employer facility that NIOSH reported had a potential for significant residual radiation contamination in its report dated October 2003 and titled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,” or any update to that report, if the evidence referred to in paragraph
(a)of this section establishes that the employee was employed at that facility during a period when NIOSH reported that it had a potential for significant residual radiation contamination.
(c)If the evidence shows that exposure occurred while the employee was employed by an employer that would have to be designated by DOE as an atomic weapons employer under section 7384l(4) of the Act to be a covered employer, and that the employer has not been so designated, OWCP will deny the claim on the ground that the employer is not a covered atomic weapons employer.
(d)Records from the following sources may be considered as evidence for purposes of establishing employment or presence at a covered facility:
(1)Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.
(2)Records or documents created as a byproduct of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE. § 30.213 How does a claimant establish that the radiogenic cancer was at least as likely as not related to employment at the DOE facility, the atomic weapons employer facility, or the RECA section 5 facility?
(a)HHS, with the advice of the Advisory Board on Radiation and Worker Health, has issued regulatory guidelines at 42 CFR part 81 that OWCP uses to determine whether radiogenic cancers claimed under Parts B and E were at least as likely as not related to employment at a DOE facility, an atomic weapons employer facility, or a RECA section 5 facility, as appropriate. Persons should consult HHS's regulations for information regarding the factual evidence that will be considered by OWCP, in addition to the employee's radiation dose reconstruction that will be provided to OWCP by HHS, in making this particular factual determination.
(b)HHS's regulations satisfy the legal requirements in section 7384n(c) of the Act, which also sets out OWCP's obligation to use them in its adjudication of claims for radiogenic cancer filed under Part B of the Act, and provide the factual basis for OWCP to determine if the “probability of causation”
(PoC)that an employee's cancer was sustained in the performance of duty is 50% or greater ( *i.e.* , it is “at least as likely as not” causally related to employment), as required under section 7384n(b).
(c)OWCP also uses HHS's regulations when it makes the determination required by section 7385s-4(c)(1)(A) of the Act, since those regulations provide the factual basis for OWCP to determine if “it is at least as likely as not” that exposure to radiation at a DOE facility or RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to, or causing the employee's radiogenic cancer claimed under Part E. For cancer claims under Part E, if the PoC is less than 50% and the claimant alleges that the employee was exposed to additional toxic substances, OWCP will determine if the claim is otherwise compensable pursuant to § 30.230(d) of this part. § 30.214 How does a claimant establish that the employee is a member of the Special Exposure Cohort?
(a)For purposes of establishing eligibility as a member of the Special Exposure Cohort
(SEC)under § 30.210(a)(1), the employee must have been a DOE employee, a DOE contractor employee, or an atomic weapons employee who meets any of the following requirements:
(1)The employee was so employed for a number of workdays aggregating at least 250 workdays before February 1, 1992, at a gaseous diffusion plant located in Paducah, Kentucky; Portsmouth, Ohio; or Oak Ridge, Tennessee; and during such employment:
(i)Was monitored through the use of dosimetry badges for exposure at the plant of the external parts of the employee's body to radiation; or
(ii)Worked in a job that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.
(2)The employee was so employed before January 1, 1974, by DOE or a DOE contractor or subcontractor on Amchitka Island, Alaska, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.
(3)The employee is a member of a group or class of employees subsequently designated as additional members of the SEC by HHS.
(b)For purposes of satisfying the 250 workday requirement of paragraph (a)(1) of this section, the claimant may aggregate the days of service at more than one gaseous diffusion plant.
(c)Proof of employment by the DOE or a DOE contractor, or an atomic weapons employer, for the requisite time periods set forth in paragraph
(a)of this section, may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and the time period(s) of such employment. If the evidence shows that exposure occurred while the employee was employed by an employer that would have to be designated by DOE as an atomic weapons employer under section 7384l(4) of the Act to be a covered employer, and that the employer has not been so designated, OWCP will deny the claim on the ground that the employer is not a covered atomic weapons employer.
(d)Records from the following sources may be considered as evidence for purposes of establishing employment or presence at a covered facility:
(1)Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.
(2)Records or documents created as a byproduct of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE. § 30.215 How does a claimant establish that the employee has sustained an injury, illness, impairment or disease as a consequence of a diagnosed cancer? An injury, illness, impairment or disease sustained as a consequence of a diagnosed cancer covered by the provisions of § 30.210 must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the cancer. Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of a cancer, nor the belief of the claimant that the injury, illness, impairment or disease was caused by the cancer, is sufficient in itself to prove a causal relationship. Eligibility Criteria for Claims Relating to Chronic Silicosis Under Part B of EEOICPA § 30.220 What are the criteria for eligibility for benefits relating to chronic silicosis? To establish eligibility for benefits for chronic silicosis under Part B of EEOICPA, an employee or his or her survivor must show that:
(a)The employee is a civilian DOE employee, or a civilian DOE contractor employee, who was present for a number of workdays aggregating at least 250 workdays during the mining of tunnels at a DOE facility (as defined in § 30.5(x)) located in Nevada or Alaska for tests or experiments related to an atomic weapon, and has been diagnosed with chronic silicosis (as defined in § 30.5(j)); or
(b)The employee has been diagnosed with an injury, illness, impairment or disease that arose as a consequence of the accepted chronic silicosis. § 30.221 How does a claimant prove exposure to silica in the performance of duty?
(a)Proof of the employee's employment and presence for the requisite days during the mining of tunnels at a DOE facility located in Nevada or Alaska for tests or experiments related to an atomic weapon may be made by the submission of any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and present at these sites and the time period(s) of such employment and presence.
(b)If the evidence shows that exposure occurred while the employee was employed and present at a facility during a time frame that is outside the relevant time frame indicated for that facility, OWCP may request that DOE provide additional information on the facility. OWCP will determine whether the evidence of record supports enlarging the relevant time frame for that facility.
(c)Records from the following sources may be considered as evidence for purposes of establishing proof of employment or presence at a covered facility:
(1)Records or documents created by any federal government agency (including verified information submitted for security clearance), any tribal government, or any state, county, city or local government office, agency, department, board or other entity, or other public agency or office.
(2)Records or documents created as a byproduct of any regularly conducted business activity or by an entity that acted as a contractor or subcontractor to the DOE.
(d)For purposes of satisfying the 250 workday requirement of § 30.220(a), the claimant may aggregate the days of service at more than one qualifying site. § 30.222 How does a claimant establish that the employee has been diagnosed with chronic silicosis or has sustained a consequential injury, illness, impairment or disease?
(a)A written diagnosis of the employee's chronic silicosis (as defined in § 30.5(j)) shall be made by a medical doctor and accompanied by one of the following:
(1)A chest radiograph, interpreted by an individual certified by NIOSH as a B reader, classifying the existence of pneumoconioses of category 1/0 or higher; or
(2)Results from a computer assisted tomograph or other imaging technique that are consistent with silicosis; or
(3)Lung biopsy findings consistent with silicosis.
(b)An injury, illness, impairment or disease sustained as a consequence of accepted chronic silicosis covered by the provisions of § 30.220(a) must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the accepted chronic silicosis. Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of accepted chronic silicosis, nor the belief of the claimant that the injury, illness, impairment or disease was caused by the accepted chronic silicosis, is sufficient in itself to prove a causal relationship. Eligibility Criteria for Certain Uranium Employees Under Part B of EEOICPA § 30.225 What are the criteria for eligibility for benefits under Part B of EEOICPA for certain uranium employees? In order to be eligible for benefits under this section, the claimant must establish the criteria set forth in either paragraph
(a)or paragraph
(b)of this section:
(a)The Attorney General has determined that the claimant is a covered uranium employee who is entitled to payment of $100,000 as compensation due under section 5 of RECA for a claim made under that statute (there is, however, no requirement that the claimant or surviving eligible beneficiary has actually received payment pursuant to RECA). If a deceased employee's survivor(s) has been determined to be entitled to such an award, his or her survivor(s), if any, will only be entitled to EEOICPA compensation in accordance with section 7384u(e) of the Act.
(b)The covered uranium employee has been diagnosed with an injury, illness, impairment or disease that arose as a consequence of the medical condition for which he or she was determined to be entitled to payment of $100,000 as compensation due under section 5 of RECA. § 30.226 How does a claimant establish that a covered uranium employee has sustained a consequential injury, illness, impairment or disease? An injury, illness, impairment or disease sustained as a consequence of a medical condition covered by the provisions of § 30.225(a) must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the accepted medical condition. Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of a medical condition covered by the provisions of § 30.225(a), nor the belief of the claimant that the injury, illness, impairment or disease was caused by such a condition, is sufficient in itself to prove a causal relationship. Eligibility Criteria for Other Claims Under Part E of EEOICPA § 30.230 What are the criteria necessary to establish that an employee contracted a covered illness under Part E of EEOICPA? To establish that an employee contracted a covered illness under Part E of the Act, the employee, or his or her survivor, must show one of the following:
(a)That OWCP has determined under Part B of EEOICPA that the employee is a Department of Energy contractor employee as defined in § 30.5(w), and that he or she has been awarded compensation under that Part of the Act for an occupational illness;
(b)That the Attorney General has determined that the employee is entitled to payment of $100,000 as compensation due under section 5 of RECA for a claim made under that statute (however, if a deceased employee's survivor has been determined to be entitled to such an award, his or her survivor(s), if any, will only be entitled to benefits under Part E of EEOICPA in accordance with section 7385s-3 of the Act);
(c)That the Secretary of Energy has accepted a positive determination of a Physicians Panel that the employee sustained an illness or died due to exposure to a toxic substance at a DOE facility under former section 7385o of EEOICPA, or that the Secretary of Energy has found significant evidence contrary to a negative determination of a Physicians Panel; or (d)(1) That the employee is a civilian Department of Energy contractor employee as defined in § 30.5(w), or a civilian who was employed in a uranium mine or mill located in Colorado, New Mexico, Arizona, Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon or Texas at any time during the period from January 1, 1942 through December 31, 1971, or was employed in the transport of uranium ore or vanadium-uranium ore from such a mine or mill during that same period, and that he or she:
(i)Has been diagnosed with an illness; and
(ii)That it is at least as likely as not that exposure to a toxic substance at a Department of Energy facility or at a RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to, or causing the illness; and
(iii)That it is at least as likely as not that the exposure to such toxic substance was related to employment at a Department of Energy facility or a RECA section 5 facility, as appropriate.
(2)In making the determination under paragraph (d)(1)(ii) of this section, OWCP will consider:
(i)The nature, frequency and duration of exposure of the covered employee to the substance alleged to be toxic;
(ii)Evidence of the carcinogenic or pathogenic properties of the alleged toxic substance to which the employee was exposed;
(iii)An opinion of a qualified physician with expertise in treating, diagnosing or researching the illness claimed to be caused or aggravated by the alleged exposure; and
(iv)Any other evidence that OWCP determines to have demonstrated relevance to the relation between a particular toxic substance and the claimed illness. § 30.231 How does a claimant prove employment-related exposure to a toxic substance at a DOE facility or a RECA section 5 facility? To establish employment-related exposure to a toxic substance at a Department of Energy facility or RECA section 5 facility as required by § 30.230(d), an employee, or his or her survivor(s), must prove that the employee was employed at such facility and that he or she was exposed to a toxic substance in the course of that employment.
(a)Proof of employment may be established by any trustworthy records that, on their face or in conjunction with other such records, establish that the employee was so employed and the time period(s) of such employment.
(b)Proof of exposure to a toxic substance may be established by the submission of any appropriate document or information that is evidence that such substance was present at the facility in which the employee was employed and that the employee came into contact with such substance. OWCP site exposure matrices may be used to provide probative factual evidence that a particular substance was present at either a DOE facility or a RECA section 5 facility. § 30.232 How does a claimant establish that the employee has been diagnosed with a covered illness, or sustained an injury, illness, impairment or disease as a consequence of a covered illness?
(a)To establish that the employee has been diagnosed with a covered illness as required by § 30.230(d), the employee, or his or her survivor(s), must provide the following:
(1)The name and address of any licensed physician who is the source of a diagnosis based upon documented medical information that the employee has or had an illness and that the illness may have resulted from exposure to a toxic substance while the employee was employed at a DOE facility or a RECA section 5 facility, as appropriate, and, to the extent practicable, a copy of the diagnosis and a summary of the information upon which the diagnosis is based; and
(2)A signed medical release, authorizing the release of any diagnosis, medical opinion and medical records documenting the diagnosis or opinion that the employee has or had an illness and that the illness may have resulted from exposure to a toxic substance while the employee was employed at a DOE facility or RECA section 5 facility, as appropriate; and
(3)To the extent practicable and appropriate, an occupational history obtained by a physician, an occupational health professional, or a DOE-sponsored Former Worker Program (if such an occupational history is not reasonably available or is inadequate, and such history is deemed by OWCP to be needed for the fair adjudication of the claim, then OWCP may assist the claimant in developing this history); and
(4)Any other information or materials deemed by OWCP to be necessary to provide reasonable evidence that the employee has or had an illness that may have arisen from exposure to a toxic substance while employed at a DOE facility or RECA section 5 facility, as appropriate.
(b)The employee, or his or her survivor(s), may also submit to OWCP other evidence not described in paragraph
(a)of this section showing that the employee has or had an illness that resulted from an exposure to a toxic substance during the course of employment at either a DOE facility or a RECA section 5 facility, as appropriate.
(c)An injury, illness, impairment or disease sustained as a consequence of a covered illness (as defined in § 30.5(r)) must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disease and the covered illness. Neither the fact that the injury, illness, impairment or disease manifests itself after a diagnosis of a covered illness, nor the belief of the claimant that the injury, illness, impairment or disease was caused by the covered illness, is sufficient in itself to prove a causal relationship. Subpart D—Adjudicatory Process § 30.300 What process will OWCP use to decide claims for entitlement and to provide for administrative review of those decisions? OWCP district offices will issue recommended decisions with respect to claims for entitlement under Part B and/or Part E of EEOICPA that are filed pursuant to the regulations set forth in subpart B of this part. In circumstances where a claim is made for more than one benefit available under Part B and/or Part E of the Act, OWCP may issue a recommended decision on only part of that particular claim in order to adjudicate that portion of the claim as quickly as possible. Should this occur, OWCP will issue one or more recommended decisions on the deferred portions of the claim when the adjudication of those portions is completed. All recommended decisions granting and/or denying benefits under Part B and/or Part E of the Act will be forwarded to the Final Adjudication Branch (FAB). Claimants will be given an opportunity to object to all or part of the recommended decision before the FAB. The FAB will consider objections filed by a claimant and conduct a hearing, if requested to do so by the claimant, before issuing a final decision on the claim for entitlement. § 30.301 May subpoenas be issued for witnesses and documents in connection with a claim under Part B of EEOICPA?
(a)In connection with the adjudication of a claim under Part B of EEOICPA, an OWCP district office and/or a FAB reviewer may, at their own initiative, issue subpoenas for the attendance and testimony of witnesses, and for the production of books, electronic records, correspondence, papers or other relevant documents. Subpoenas will only be issued for documents if they are relevant and cannot be obtained by other means, and for witnesses only where oral testimony is the best way to ascertain the facts.
(b)A claimant may also request a subpoena in connection with his or her claim under Part B of the Act, but such request may only be made to a FAB reviewer. No subpoenas will be issued at the request of the claimant under any other portion of the claims process. The decision to grant or deny such request is within the discretion of the FAB reviewer. To request a subpoena under this section, the requestor must:
(1)Submit the request in writing and send it to the FAB reviewer as early as possible, but no later than 30 days (as evidenced by postmark, electronic marker or other objective date mark) after the date of the original hearing request;
(2)Explain why the testimony or evidence is directly relevant and material to the issues in the case; and
(3)Establish that a subpoena is the best method or opportunity to obtain such evidence because there are no other means by which the documents or testimony could have been obtained.
(c)No subpoena will be issued for attendance of employees or contractors of OWCP or NIOSH acting in their official capacities as decision-makers or policy administrators. For hearings taking the form of a review of the written record, no subpoena for the appearance of witnesses will be considered.
(d)The FAB reviewer will issue the subpoena under his or her own name. It may be served in person or by certified mail, return receipt requested, addressed to the person to be served at his or her last known principal place of business or residence. A decision to deny a subpoena requested by a claimant can only be challenged as part of a request for reconsideration of any adverse decision of the FAB which results from the hearing. § 30.302 Who pays the costs associated with subpoenas?
(a)Witnesses who are not employees or former employees of the federal government shall be paid the same fees and mileage as paid for like services in the District Court of the United States where the subpoena is returnable, except that expert witnesses shall be paid a fee not to exceed the local customary fee for such services.
(b)Where OWCP asked that the witness submit evidence into the case record or asked that the witness attend, OWCP shall pay the fees and mileage. Where the claimant asked for the subpoena, and where the witness submitted evidence into the record at the request of the claimant, the claimant shall pay the fees and mileage. § 30.303 What information may OWCP request in connection with a claim under Part E of EEOICPA? At any time during the course of development of a claim for benefits under Part E, OWCP may determine that it needs relevant information to adjudicate the claim. When this occurs, and at the request of OWCP, DOE and/or any contractor who employed a Department of Energy contractor employee must provide to OWCP information or documents in response to the request in connection with a claim under Part E of EEOICPA.
(a)The party to whom the request is made must respond to OWCP within 90 days of the request with either:
(1)The requested information or documents; or
(2)A sworn statement that a good faith search for the requested information or documents was conducted, and that the information or documents could not be located.
(b)DOE and/or the DOE contractor who employed a Department of Energy contractor employee must query third parties under its control to acquire the requested information or documents.
(c)In providing the requested information or documents, DOE and/or the DOE contractor who employed a DOE contractor employee must preserve the current organization of the requested information or documents, and must provide such description and indexing of the requested information or documents as OWCP considers appropriate to facilitate their use by OWCP.
(d)Information or document requests may include, but are not limited to, requests for records, files and other data, whether paper, electronic, imaged or otherwise, developed, acquired or maintained by DOE or the DOE contractor who employed a DOE contractor employee. Such information or documents may include records, files and data on facility industrial hygiene, employment of individuals or groups, exposure and medical records, and claims applications. Recommended Decisions on Claims § 30.305 How does OWCP determine entitlement to EEOICPA compensation?
(a)In reaching a recommended decision with respect to EEOICPA compensation, OWCP considers the claim presented by the claimant, the factual and medical evidence of record, the dose reconstruction report calculated by HHS (if any), any report submitted by DOE and the results of such investigation as OWCP may deem necessary.
(b)The OWCP claims staff applies the law, the regulations and its procedures when it evaluates the medical evidence and the facts as reported or obtained upon investigation. § 30.306 What does the recommended decision contain? The recommended decision shall contain findings of fact and conclusions of law. The recommended decision may accept or reject the claim in its entirety, or it may accept or reject a portion of the claim presented. It is accompanied by a notice of the claimant's right to file objections with, and request a hearing before, the FAB. § 30.307 To whom is the recommended decision sent?
(a)A copy of the recommended decision will be mailed to the claimant's last known address and to the claimant's designated representative before OWCP, if any. Notification to either the claimant or the representative will be considered notification to both parties.
(b)At the same time it issues a recommended decision on a claim, the OWCP district office will forward the record of such claim to the FAB. Any new evidence submitted to the district office following the issuance of the recommended decision will also be forwarded to the FAB for consideration. Hearings and Final Decisions on Claims § 30.310 What must the claimant do if he or she objects to the recommended decision or wants to request a hearing?
(a)Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS's reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired. This written statement should be filed with the FAB at the address indicated in the notice accompanying the recommended decision.
(b)For purposes of determining whether the written statement referred to in paragraph
(a)of this section has been timely filed with the FAB, the statement will be considered to be “filed” on the date that the claimant mails it to the FAB, as determined by postmark, or on the date that such written statement is actually received by the FAB, whichever is the earliest determinable date. § 30.311 What happens if the claimant does not object to the recommended decision or request a hearing within 60 days?
(a)If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, the FAB may issue a final decision accepting the recommendation of the district office as provided in § 30.316.
(b)If the recommended decision accepts all or part of a claim for compensation, the FAB may issue a final decision at any time after receiving written notice from the claimant that he or she waives any objection to all or part of the recommended decision. § 30.312 What will the FAB do if the claimant objects to the recommended decision but does not request a hearing? If the claimant files a written statement that objects to the recommended decision within the period of time allotted in § 30.310 but does not request a hearing, the FAB will consider any objections by means of a review of the written record. If the claimant only objects to part of the recommended decision, the FAB may issue a final decision accepting the remaining part of the recommendation of the district office without first reviewing the written record (see § 30.316). § 30.313 How is a review of the written record conducted?
(a)The FAB reviewer will consider the written record forwarded by the district office and any additional evidence and/or argument submitted by the claimant. The reviewer may also conduct whatever investigation is deemed necessary.
(b)The claimant should submit, with his or her written statement that objects to the recommended decision, all evidence or argument that he or she wants to present to the reviewer. However, evidence or argument may be submitted at any time up to the date specified by the reviewer for the submission of such evidence or argument.
(c)Any objection that is not presented to the FAB reviewer, including any objection to HHS's reconstruction of the radiation dose to which the employee was exposed (if any), whether or not the pertinent issue was previously presented to the district office, is deemed waived for all purposes. § 30.314 How is a hearing conducted?
(a)The FAB reviewer retains complete discretion to set the time and place of the hearing, including the amount of time allotted for the hearing, considering the issues to be resolved. At the discretion of the reviewer, the hearing may be conducted by telephone or teleconference. As part of the hearing process, the FAB reviewer will consider the written record forwarded by the district office and any additional evidence and/or argument submitted by the claimant. The reviewer may also conduct whatever investigation is deemed necessary.
(1)The FAB reviewer will try to set the hearing at a place that is within commuting distance of the claimant's residence, but will not be able to do so in all cases. Therefore, for reasons of economy, the claimant may be required to travel a roundtrip distance of up to 200 miles to attend the hearing.
(2)In unusual circumstances, the FAB reviewer may set a place for the hearing that is more than 200 miles roundtrip from the claimant's residence. However, in that situation, OWCP will reimburse the claimant for reasonable and necessary travel expenses incurred to attend the hearing if he or she submits a written reimbursement request that documents such expenses.
(b)Unless otherwise directed in writing by the claimant, the FAB reviewer will mail a notice of the time and place of the hearing to the claimant and any representative at least 30 days before the scheduled hearing date. If the claimant only objects to part of the recommended decision, the FAB reviewer may issue a final decision accepting the remaining part of the recommendation of the district office without first holding a hearing (see § 30.316). Any objection that is not presented to the FAB reviewer, including any objection to HHS's reconstruction of the radiation dose to which the employee was exposed (if any), whether or not the pertinent issue was previously presented to the district office, is deemed waived for all purposes.
(c)The hearing is an informal process, and the reviewer is not bound by common law or statutory rules of evidence, or by technical or formal rules of procedure. The reviewer may conduct the hearing in such manner as to best ascertain the rights of the claimant. During the hearing process, the claimant may state his or her arguments and present new written evidence and/or testimony in support of the claim.
(d)Testimony at hearings is recorded, then transcribed and placed in the record. Oral testimony shall be made under oath.
(e)The FAB reviewer will furnish a transcript of the hearing to the claimant, who has 20 days from the date it is sent to submit any comments to the reviewer.
(f)The claimant will have 30 days after the hearing is held to submit additional evidence or argument, unless the reviewer, in his or her sole discretion, grants an extension. Only one such extension may be granted.
(g)The reviewer determines the conduct of the hearing and may terminate the hearing at any time he or she determines that all relevant evidence has been obtained, or because of misbehavior on the part of the claimant and/or representative at or near the place of the oral presentation. § 30.315 May a claimant postpone a hearing?
(a)The FAB will entertain any reasonable request for scheduling the time and place of the hearing, but such requests should be made at the time that the hearing is requested. Scheduling is at the discretion of the FAB, and is not reviewable. In most instances, once the hearing has been scheduled and appropriate written notice has been mailed, it cannot be postponed at the claimant's request for any reason except those stated in paragraph
(b)of this section, unless the FAB reviewer can reschedule the hearing on the same docket (that is, during the same hearing trip). If a request to postpone a scheduled hearing does not meet one of the tests of paragraph
(b)of this section and cannot be accommodated on the same docket, no further opportunity for a hearing will be provided. Instead, the FAB will consider the claimant's objections by means of a review of the written record. In the alternative, a teleconference may be substituted for the hearing at the discretion of the reviewer.
(b)Where the claimant or the representative appointed by the claimant in accordance with § 30.600 of this part has a medical reason that prevents attendance at the hearing, or where the death or illness of the claimant's parent , spouse, or child prevents the claimant from attending the hearing as scheduled, a postponement may be granted in the discretion of the FAB if the claimant or the representative provides at least 24 hours notice and a reasonable explanation supporting his or her inability to attend the scheduled hearing.
(c)At any time after requesting a hearing, the claimant can request a change to a review of the written record by making a written request to the FAB. Once such a change is made, no further opportunity for a hearing will be provided. § 30.316 How does the FAB issue a final decision on a claim?
(a)If the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in § 30.310, or if the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part (see §§ 30.311, 30.312 and 30.314(b)).
(b)If the claimant objects to all or part of the recommended decision, the FAB reviewer will issue a final decision on the claim after either the hearing or the review of the written record, and after completing such further development of the case as he or she may deem necessary.
(c)Any recommended decision (or part thereof) that is pending either a hearing or a review of the written record for more than one year from the date the FAB received the written statement described in § 30.310(a), or the date the Director reopened the claim for issuance of a new final decision pursuant to § 30.320(a), shall be considered a final decision of the FAB on the one-year anniversary of such date. Any recommended decision described in § 30.311 that is pending at the FAB for more than one year from the date that the period of time described in § 30.310 expired shall be considered a final decision of the FAB on the one-year anniversary of such date.
(d)The decision of the FAB, whether issued pursuant to paragraph (a),
(b)or
(c)of this section, shall be final upon the date of issuance of such decision, unless a timely request for reconsideration under § 30.319 has been filed.
(e)A copy of the final decision of the FAB will be mailed to the claimant's last known address and to the claimant's designated representative before OWCP, if any. Notification to either the claimant or the representative will be considered notification to both parties. § 30.317 Can the FAB request a further response from the claimant or return a claim to the district office? At any time before the issuance of its final decision, the FAB may request that the claimant submit additional evidence or argument, or return the claim to the district office for further development and/or issuance of a newly recommended decision without issuing a final decision, whether or not requested to do so by the claimant. § 30.318 Can the FAB consider objections to HHS's reconstruction of a radiation dose or to the guidelines OWCP uses to determine if a claimed cancer was at least as likely as not related to employment?
(a)If the claimant objects to HHS's reconstruction of the radiation dose to which the employee was exposed, the FAB will evaluate the factual findings upon which HHS based its dose reconstruction. If these factual findings do not appear to be supported by substantial evidence, the claim will be returned to the district office for referral to HHS for further consideration.
(b)The methodology used by HHS in arriving at reasonable estimates of the radiation doses received by an employee, established by regulations issued by HHS at 42 CFR part 82, is binding on the FAB. The FAB reviewer may determine, however, that objections concerning the application of that methodology should be considered by HHS and may return the case to the district office for referral to HHS for such consideration.
(c)The methodology that OWCP uses to determine if a claimed cancer was at least as likely as not related to employment at a DOE facility, an atomic weapons employer facility, or a RECA section 5 facility, established by regulations issued by HHS at 42 CFR part 81, is also binding on the FAB (see § 30.213). However, since OWCP applies this methodology when it makes these determinations, the FAB reviewer may consider objections to the manner in which OWCP applied HHS's regulatory guidelines. § 30.319 May a claimant request reconsideration of a final decision of the FAB?
(a)A claimant may request reconsideration of a final decision of the FAB by filing a written request with the FAB within 30 days from the date of issuance of such decision. If a timely request for reconsideration is made, the decision in question will no longer be considered “final” under § 30.316(d).
(b)For purposes of determining whether the written request referred to in paragraph
(a)of this section has been timely filed with the FAB, the request will be considered to be “filed” on the date that the claimant mails it to the FAB, as determined by postmark, or on the date that such written request is actually received by the FAB, whichever is the earliest determinable date.
(c)A hearing is not available as part of the reconsideration process. If the FAB grants the request for reconsideration, it will consider the written record of the claim again and issue a new final decision on the claim. A new final decision that is issued after the FAB grants a request for reconsideration will be “final” upon the date of issuance of such new decision.
(1)Instead of issuing a new final decision after granting a request for reconsideration, the FAB may return the claim to the district office for further development as provided in § 30.317.
(2)If the FAB denies the request for reconsideration, the FAB decision that formed the basis for the request will be considered “final” upon the date the request is denied, and no further requests for reconsideration of that particular final decision of the FAB will be entertained.
(d)A claimant may not seek judicial review of a decision on his or her claim under EEOICPA until OWCP's decision on the claim is final pursuant to either § 30.316(d) (for claims in which no request for reconsideration was filed with the FAB) or paragraph
(c)of this section (for claims in which a request for reconsideration was filed with the FAB). Reopening Claims § 30.320 Can a claim be reopened after the FAB has issued a final decision?
(a)At any time after the FAB has issued a final decision pursuant to § 30.316, and without regard to whether new evidence or information is presented or obtained, the Director for Energy Employees Occupational Illness Compensation may reopen a claim and return it to the FAB for issuance of a new final decision, or to the district office for such further development as may be necessary, to be followed by a new recommended decision. The Director may also vacate any other type of decision issued by the FAB.
(b)At any time after the FAB has issued a final decision pursuant to § 30.316, a claimant may file a written request that the Director for Energy Employees Occupational Illness Compensation reopen his or her claim, provided that the claimant also submits new evidence of either covered employment or exposure to a toxic substance, or identifies either a change in the PoC guidelines, a change in the dose reconstruction methods or an addition of a class of employees to the Special Exposure Cohort.
(1)If the Director concludes that the evidence submitted or matter identified in support of the claimant's request is material to the claim, the Director will reopen the claim and return it to the district office for such further development as may be necessary, to be followed by a new recommended decision.
(2)New evidence of a medical condition described in subpart C of these regulations is not sufficient to support a written request to reopen a claim for such a condition under paragraph
(b)of this section.
(c)The decision whether or not to reopen a claim under this section is solely within the discretion of the Director for Energy Employees Occupational Illness Compensation and is not reviewable. If the Director reopens a claim pursuant to paragraphs
(a)or
(b)of this section and returns it to the district office, the resulting new recommended decision will be subject to the adjudicatory process described in this subpart. However, neither the district office nor the FAB can consider any objection concerning the Director's decision to reopen a claim under this section. Subpart E—Medical and Related Benefits Medical Treatment and Related Issues § 30.400 What are the basic rules for obtaining medical treatment?
(a)A covered Part B employee or a covered Part E employee who fits into at least one of the compensable claim categories described in subpart C of this part is entitled to receive all medical services, appliances or supplies that a qualified physician prescribes or recommends and that OWCP considers necessary to treat his or her occupational illness or covered illness, retroactive to the date the claim for benefits for that occupational illness or covered illness under Part B or Part E of EEOICPA was filed. In situations where the occupational illness or covered illness is a secondary cancer, such treatment may include treatment of the underlying primary cancer when it is medically necessary or related to treatment of the secondary cancer; however, payment for medical treatment of the underlying primary cancer under these circumstances does not constitute a determination by OWCP that the primary cancer is a covered illness under Part E of EEOICPA. The employee need not be disabled to receive such treatment. When a survivor receives payment, OWCP will pay for such treatment if the employee died before the claim was paid. If there is any doubt as to whether a specific service, appliance or supply is necessary to treat the occupational illness or covered illness, the employee should consult OWCP prior to obtaining it.
(b)If a claimant disagrees with the decision of OWCP that medical benefits provided under paragraph
(a)of this section are not necessary to treat an occupational illness or covered illness, he or she may choose to utilize the adjudicatory process described in subpart D of this part.
(c)Any qualified physician or qualified hospital may provide medical services, appliances and supplies to the covered Part B employee or the covered Part E employee. A qualified provider of medical support services may also furnish appropriate services, appliances, and supplies. OWCP may apply a test of cost-effectiveness when it decides if appliances and supplies are necessary to treat an occupational illness or covered illness. With respect to prescribed medications, OWCP may require the use of generic equivalents where they are available. § 30.401 What are the special rules for the services of chiropractors?
(a)The services of chiropractors that may be reimbursed by OWCP are limited to treatment to correct a spinal subluxation. The costs of physical and related laboratory tests performed by or required by a chiropractor to diagnose such a subluxation are also payable.
(b)A diagnosis of spinal subluxation as demonstrated by x-ray to exist must appear in the chiropractor's report before OWCP can consider payment of a chiropractor's bill.
(c)A chiropractor may interpret his or her x-rays to the same extent as any other physician. To be given any weight, the medical report must state that x-rays support the finding of spinal subluxation. OWCP will not necessarily require submission of the x-ray, or a report of the x-ray, but the report must be available for submission on request.
(d)A chiropractor may also provide services in the nature of physical therapy under the direction of a qualified physician. § 30.402 What are the special rules for the services of clinical psychologists? A clinical psychologist may serve as a physician within the scope of his or her practice as defined by state law. Therefore, a clinical psychologist may not serve as a physician for conditions that include a physical component unless the applicable state law allows clinical psychologists to treat physical conditions. A clinical psychologist may also perform testing, evaluation, and other services under the direction of a qualified physician. § 30.403 Will OWCP pay for the services of an attendant? OWCP will authorize payment for personal care services under section 7384t of the Act, whether or not such care includes medical services, so long as the personal care services have been determined to be medically necessary and are provided by a home health aide, licensed practical nurse, or similarly trained individual. If a claimant disagrees with the decision of OWCP that personal care services are not medically necessary, he or she may utilize the adjudicatory process described in subpart D of this part. § 30.404 Will OWCP pay for transportation to obtain medical treatment?
(a)The employee is entitled to reimbursement for reasonable and necessary expenses, including transportation, incident to obtaining authorized medical services, appliances or supplies. To determine what is a reasonable distance to travel, OWCP will consider the availability of services, the employee's condition, and the means of transportation. Generally, a roundtrip distance of up to 200 miles is considered a reasonable distance to travel.
(b)If travel of more than 200 miles is contemplated, or air transportation or overnight accommodations will be needed, the employee must submit a written request to OWCP for prior authorization with information describing the circumstances and necessity for such travel expenses. OWCP will approve the request if it determines that the travel expenses are reasonable and necessary, and are incident to obtaining authorized medical services, appliances or supplies. Requests for travel expenses that are often approved include those resulting from referrals to a specialist for further medical treatment, and those involving air transportation of an employee who lives in a remote geographical area with limited local medical services.
(c)If a claimant disagrees with the decision of OWCP that requested travel expenses are either not reasonable or necessary, or are not incident to obtaining authorized medical services, appliances or supplies, he or she may utilize the adjudicatory process described in subpart D of this part.
(d)The standard form designated for medical travel refund requests is Form OWCP-957 and must be used to seek reimbursement under this section. This form can be obtained from OWCP. § 30.405 After selecting a treating physician, may an employee choose to be treated by another physician instead?
(a)OWCP will provide the employee with an opportunity to designate a treating physician when it accepts the claim. When the physician originally selected to provide treatment for an occupational illness or a covered illness refers the employee to a specialist for further medical care, the employee need not consult OWCP for approval. In all other instances, however, the employee must submit a written request to OWCP with his or her reasons for desiring a change of physician.
(b)OWCP will approve the request if it determines that the reasons submitted are sufficient. Requests that are often approved include those for transfer of care from a general practitioner to a physician who specializes in treating the occupational illnesses or covered illnesses covered by EEOICPA, or the need for a new physician when an employee has moved.
(c)If a claimant disagrees with the decision of OWCP that insufficient reasons for a change of physician have been submitted, he or she may utilize the adjudicatory process described in subpart D of this part. § 30.406 Are there any exceptions to these procedures for obtaining medical care? In cases involving emergencies or unusual circumstances, OWCP may authorize treatment in a manner other than as stated in this subpart. Directed Medical Examinations § 30.410 Can OWCP require an employee to be examined by another physician?
(a)OWCP sometimes needs a second opinion from a medical specialist. The employee must submit to examination by a qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP as often and at such times and places as OWCP considers reasonably necessary. Also, OWCP may send a case file for second opinion review to a qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP where an actual examination is not needed, or where the employee is deceased.
(b)If the initial examination is disrupted by someone accompanying the employee, OWCP will schedule another examination with a different qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP. The employee will not be entitled to have anyone else present at the subsequent examination unless OWCP decides that exceptional circumstances exist. For example, where a hearing-impaired employee needs an interpreter, the presence of an interpreter would be allowed. § 30.411 What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?
(a)If one medical opinion holds more probative value than the other, OWCP will base its determination of coverage on the medical opinion with the greatest probative value. A difference in medical opinion sufficient to be considered a conflict only occurs when two reports of virtually equal weight and rationale reach opposing conclusions.
(b)If a conflict exists between the medical opinion of the employee's physician and the medical opinion of a second opinion physician, an OWCP medical adviser or consultant, or a physician submitting an impairment evaluation that meets the criteria set out in § 30.905 of this part, OWCP shall appoint a third physician who conforms to the standards regarding conflicts of interest adopted by OWCP to make an examination or an impairment evaluation. This is called a referee examination or a referee impairment evaluation. OWCP will select a physician who is qualified in the appropriate specialty and who has had no prior connection with the case. Also, a case file may be sent to a physician who conforms to the standards regarding conflicts of interest adopted by OWCP for a referee medical review where there is no need for an actual examination, or where the employee is deceased.
(c)If the initial referee examination or referee impairment evaluation is disrupted by someone accompanying the employee, OWCP will schedule another examination or impairment evaluation with a different qualified physician who conforms to the standards regarding conflicts of interest adopted by OWCP. The employee will not be entitled to have anyone else present at the subsequent referee examination or referee impairment evaluation unless OWCP decides that exceptional circumstances exist. For example, where a hearing-impaired employee needs an interpreter, the presence of an interpreter would be allowed. § 30.412 Who pays for second opinion and referee examinations? OWCP will pay second opinion and referee medical specialists directly. OWCP will also reimburse the employee for all necessary and reasonable expenses incident to such an examination, including transportation costs and actual wages the employee lost for the time needed to submit to an examination required by OWCP. Medical Reports § 30.415 What are the requirements for medical reports? In general, medical reports from the employee's attending physician should include the following:
(a)Dates of examination and treatment;
(b)History given by the employee;
(c)Physical findings;
(d)Results of diagnostic tests;
(e)Diagnosis;
(f)Course of treatment;
(g)A description of any other conditions found due to the claimed occupational illness or covered illness;
(h)The treatment given or recommended for the claimed occupational illness or covered illness; and
(i)All other material findings. § 30.416 How and when should medical reports be submitted?
(a)The initial medical report (and any subsequent reports) should be made in narrative form on the physician's letterhead stationery. The physician should use the Form EE-7 as a guide for the preparation of his or her initial medical report in support of a claim under Part B and/or Part E of EEOICPA. The report should bear the physician's signature or signature stamp. OWCP may require an original signature on the report.
(b)The report shall be submitted directly to OWCP as soon as possible after medical examination or treatment is received, either by the employee or the physician. § 30.417 What additional medical information may OWCP require to support continuing payment of benefits? In all cases requiring hospital treatment or prolonged care, OWCP will request detailed narrative reports from the attending physician at periodic intervals. The physician will be asked to describe continuing medical treatment for the occupational illness or covered illness accepted by OWCP, a prognosis, and the physician's opinion as to the continuing causal relationship between the need for additional treatment and the occupational illness or covered illness. Medical Bills § 30.420 How should medical bills and reimbursement requests be submitted? Usually, medical providers submit their bills directly for processing. The rules for submitting and processing provider bills and reimbursement requests are stated in subpart H of this part. An employee requesting reimbursement for out-of-pocket medical expenses must submit a Form OWCP-915 and meet the requirements described in § 30.702. § 30.421 What are the time frames for submitting bills and reimbursement requests? To be considered for payment, bills and reimbursement requests must be submitted by the end of the calendar year after the year when the expense was incurred, or by the end of the calendar year after the year when OWCP first accepted the claim as compensable under subpart D of this part, whichever is later. § 30.422 If an employee is only partially reimbursed for a medical expense, must the provider refund the balance of the amount paid to the employee?
(a)The OWCP fee schedule sets maximum limits on the amounts payable for many services. The employee may be only partially reimbursed for out-of-pocket medical expenses because the amount he or she paid to the medical provider for a service exceeds the maximum allowable charge set by the OWCP fee schedule.
(b)If this happens, the employee will be advised of the maximum allowable charge for the service in question and of his or her responsibility to ask the provider to refund to the employee, or credit to the employee's account, the amount he or she paid that exceeds the maximum allowable charge. The provider that the employee paid, but not the employee, may request reconsideration of the fee determination as set forth in § 30.712.
(c)If the provider does not refund to the employee or credit to his or her account the amount of money paid in excess of the charge that OWCP allows, the employee should submit documentation of the attempt to obtain such refund or credit to OWCP. OWCP may authorize reasonable reimbursement to the employee after reviewing the facts and circumstances of the case. Subpart F—Survivors; Payments and Offsets; Overpayments Survivors § 30.500 What special statutory definitions apply to survivors under EEOICPA?
(a)For the purposes of paying compensation to survivors under both Parts B and E of EEOICPA, OWCP will use the following definitions:
(1)*Surviving spouse* means the wife or husband of a deceased covered Part B employee or deceased covered Part E employee who was married to that individual for the 365 consecutive days immediately prior to the death of that individual.
(2)*Child* or *children* includes a recognized natural child of a deceased covered Part B employee or deceased covered Part E employee, a stepchild who lived with that individual in a regular parent-child relationship, and an adopted child of that individual. However, to be a “covered” child under Part E only, such child must have been, as of the date of the deceased covered Part E employee's death, either under the age of 18 years, or under the age of 23 years and a full-time student who was continuously enrolled in one or more educational institutions since attaining the age of 18 years, or any age and incapable of self-support.
(b)For the purposes of paying compensation to survivors only under Part B of EEOICPA, OWCP will use the following additional definitions:
(1)*Parent* includes fathers and mothers of a deceased covered Part B employee through adoption.
(2)*Grandchild* means a child of a child of a deceased covered Part B employee.
(3)*Grandparent* means a parent of a parent of a deceased covered Part B employee. § 30.501 What order of precedence will OWCP use to determine which survivors are entitled to receive compensation under EEOICPA?
(a)Under Part B of the Act, if OWCP determines that a survivor or survivors are entitled to receive compensation under EEOICPA because a covered Part B employee who would otherwise have been entitled to benefits is deceased, that compensation will be disbursed as follows, subject to the qualifications set forth in § 30.5(gg)(3) of these regulations:
(1)If there is a surviving spouse, the compensation shall be paid to that individual.
(2)If there is no surviving spouse, the compensation shall be paid in equal shares to all children of the deceased covered Part B employee.
(3)If there is no surviving spouse and no children, the compensation shall be paid in equal shares to the parents of the deceased covered Part B employee.
(4)If there is no surviving spouse, no children and no parents, the compensation shall be paid in equal shares to all grandchildren of the deceased covered Part B employee.
(5)If there is no surviving spouse, no children, no parents and no grandchildren, the compensation shall be paid in equal shares to the grandparents of the deceased covered Part B employee.
(6)Notwithstanding paragraphs (a)(1) through (a)(5) of this section, if there is a surviving spouse and at least one child of the deceased covered Part B employee who is a minor at the time of payment and who is not a recognized natural child or adopted child of such surviving spouse, half of the compensation shall be paid to the surviving spouse, and the other half of the compensation shall be paid in equal shares to each child of the deceased covered Part B employee who is a minor at the time of payment.
(b)Under Part E of the Act, if OWCP determines that a survivor or survivors are entitled to receive compensation under EEOICPA because a covered Part E employee who would otherwise have been entitled to benefits is deceased, that compensation will be disbursed as follows, subject to the qualifications set forth in § 30.5(gg)(3) of these regulations:
(1)If there is a surviving spouse, the compensation shall be paid to that individual.
(2)If there is no surviving spouse, the compensation shall be paid in equal shares to all “covered” children of the deceased covered Part E employee.
(3)Notwithstanding paragraphs (b)(1) and (b)(2) of this section, if there is a surviving spouse and at least one “covered” child of the deceased covered Part E employee who is living at the time of payment and who is not a recognized natural child or adopted child of such surviving spouse, then half of such payment shall be made to such surviving spouse, and the other half of such payment shall be made in equal shares to each “covered” child of the employee who is living at the time of payment. § 30.502 When is entitlement for survivors determined for purposes of EEOICPA? Entitlement to any lump-sum payment for survivors under EEOICPA, other than for “covered” children under Part E, will be determined as of the time OWCP makes such a payment. As noted in § 30.500(a)(2) of these regulations, a child of a deceased Part E employee will only qualify as a “covered” child of that individual if he or she satisfied one of the additional statutory criteria for a “covered” child as of the date of the deceased Part E employee's death. Payment of Claims and Offset for Certain Payments § 30.505 What procedures will OWCP follow before it pays any compensation?
(a)In cases involving the approval of a claim, whether in whole or in part, OWCP shall take all necessary steps to determine the amount of any offset or coordination of EEOICPA benefits before paying any benefits, and to verify the identity of the covered Part B employee, the covered Part E employee, or the eligible surviving beneficiary or beneficiaries. To perform these tasks, OWCP may conduct any investigation, require any claimant to provide or execute any affidavit, record or document, or authorize the release of any information as OWCP deems necessary to ensure that the compensation payment is made in the correct amount and to the correct person or persons. OWCP shall also require every claimant under Part B of the Act to execute and provide any necessary affidavit described in § 30.620 of these regulations. Should a claimant fail or refuse to execute an affidavit or release of information, or fail or refuse to provide a requested document or record or to provide access to information, such failure or refusal may be deemed to be a rejection of the payment, unless the claimant does not have and cannot obtain the legal authority to provide, release, or authorize access to the required information, records, or documents.
(b)To determine the amount of any offset, OWCP shall require the covered Part B employee, covered Part E employee or each eligible surviving beneficiary filing a claim under this part to execute and provide an affidavit (or declaration made under oath on Form EE-1 or EE-2) reporting the amount of any payment made pursuant to a final judgment or settlement in litigation seeking damages. Even if someone other than the covered Part B employee or the covered Part E employee receives a payment pursuant to a final judgment or settlement in litigation seeking damages ( *e.g.* , the surviving spouse of a deceased covered Part B employee or a deceased covered Part E employee), the receipt of any such payment must be reported.
(1)For the purposes of this paragraph
(b)only, “litigation seeking damages” refers to any request or demand for money (other than for workers' compensation) by the covered Part B employee or the covered Part E employee, or by another individual if the covered Part B employee or the covered Part E employee is deceased, made or sought in a civil action or in anticipation of the filing of a civil action, for injuries incurred on account of an exposure for which compensation is payable under EEOICPA. This term does not also include any request or demand for money made or sought pursuant to a life insurance or health insurance contract, or any request or demand for money made or sought by an individual other than the covered Part B employee or the covered Part E employee in that individual's own right ( *e.g.* , a spouse's claim for loss of consortium), or any request or demand for money made or sought by the covered Part B employee or the covered Part E employee (or the estate of a deceased covered Part B employee or deceased covered Part E employee) not for injuries incurred on account of an exposure for which compensation is payable under the EEOICPA ( *e.g.* , a covered Part B employee's or a covered Part E employee's claim for damage to real or personal property).
(2)If a payment has been made pursuant to a final judgment or settlement in litigation seeking damages, OWCP shall subtract a portion of the dollar amount of such payment from the benefit payments to be made under EEOICPA. OWCP will calculate the amount to be subtracted from the benefit payments in the following manner:
(i)OWCP will first determine the value of the payment made pursuant to either a final judgment or settlement in litigation seeking damages by adding the dollar amount of any monetary damages (excluding contingent awards) and any medical expenses for treatment provided on or after the date the covered Part B employee or the covered Part E employee filed a claim for EEOICPA benefits that were paid for under the final judgment or settlement. In the event that these payments include a “structured” settlement (where a party makes an initial cash payment and also arranges, usually through the purchase of an annuity, for payments in the future), OWCP will usually accept the cost of the annuity to the purchaser as the dollar amount of the right to receive the future payments.
(ii)OWCP will then make certain deductions from the above dollar amount to arrive at the dollar amount to be subtracted from any unpaid EEOICPA benefits. Allowable deductions consist of attorney's fees OWCP deems reasonable, and itemized costs of suit (out-of-pocket expenditures not part of the normal overhead of a law firm's operation like filing fees, travel expenses, witness fees, and court reporter costs for transcripts) provided that adequate supporting documentation is submitted to OWCP.
(iii)The EEOICPA benefits that will be reduced will consist of any unpaid lump-sum payments payable in the future and medical benefits payable in the future. In those cases where it has not yet paid EEOICPA benefits, OWCP will reduce such benefits on a dollar-for-dollar basis, beginning with the lump-sum payments first. If the amount to be subtracted exceeds the lump-sum payments, OWCP will reduce ongoing EEOICPA medical benefits payable in the future by the amount of any remaining surplus. This means that OWCP will apply the amount it would otherwise pay to reimburse the covered Part B employee or the covered Part E employee for any ongoing EEOICPA medical treatment to the remaining surplus until it is absorbed. In addition to this reduction of ongoing EEOICPA medical benefits, OWCP will not be the first payer for any medical expenses that are the responsibility of another party (who will instead be the first payer) as part of a final judgment or settlement in litigation seeking damages.
(3)The above reduction of EEOICPA benefits will not occur if an EEOICPA claimant had his or her award under section 5 of RECA reduced by the full amount of the payment made pursuant to a final judgment or settlement in litigation seeking damages. It will also not occur if an EEOICPA claimant's prior payment of EEOICPA benefits, or his or her workers' compensation benefits, were offset to reflect the full amount of the payment made pursuant to a final judgment or settlement in litigation seeking damages. However, if the prior reduction or offset of the above benefits did not reflect the full amount of the payment made pursuant to a final judgment or settlement in litigation seeking damages, OWCP will reduce currently payable EEOICPA benefits by the amount of any surplus final judgment or settlement payment that remains.
(c)Except as provided in § 30.506(b) of these regulations, when OWCP has verified the identity of every claimant who is entitled to the compensation payment, or to a share of the compensation payment, and has determined the correct amount of the payment or the share of the payment, OWCP shall notify every claimant, every duly appointed guardian or conservator of a claimant, or every person with power of attorney for a claimant, and require such person or persons to complete a Form EN-20 providing payment information. Such form shall be signed and returned to OWCP within sixty days of the date of the form or within such greater period as may be allowed by OWCP. Failure to sign and return the form within the required time may be deemed to be a rejection of the payment. If the claimant dies before the payment is received, the person who receives the payment shall return it to OWCP for redetermination of the correct disbursement of the payment. No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.
(d)The total amount of compensation (other than medical benefits) under Part E that can be paid to all claimants as a result of the exposure of a covered Part E employee shall not be more than $250,000 in any circumstances. § 30.506 To whom and in what manner will OWCP pay compensation?
(a)Except with respect to claims under Part B of the Act for beryllium sensitivity, payment shall be made to the covered Part B employee or the covered Part E employee, to the duly appointed guardian or conservator of that individual, or to the person with power of attorney for that individual, unless the covered Part B employee or covered Part E employee is deceased at the time of the payment. In all cases involving a deceased covered Part B employee or deceased covered Part E employee, payment shall be made to the eligible surviving beneficiary or beneficiaries, to the duly appointed guardian or conservator of the eligible surviving beneficiary or beneficiaries, or to every person with power of attorney for an eligible surviving beneficiary, in accordance with the terms and conditions specified in sections 7384s(e), 7384u(e), and 7385s-3(c) and
(d)of EEOICPA.
(b)Under Part B of the Act, compensation for any consequential injury, illness, impairment or disease is limited to payment of medical benefits for that injury, illness, impairment or disease. Under Part E of the Act, compensation for any consequential injury, illness, impairment or disease consists of medical benefits for that injury, illness, impairment or disease, as well as any additional monetary benefits that are consistent with the terms of § 30.505(d).
(c)Rejected compensation payments, or shares of compensation payments, shall not be distributed to other eligible surviving beneficiaries, but shall be returned to the Fund.
(d)No covered Part B employee may receive more than one lump-sum payment under Part B of EEOICPA for any occupational illnesses he or she contracted. However, any individual, including a covered Part B employee who has received a lump-sum payment for his or her own occupational illness or illnesses, may receive one lump-sum payment for each deceased covered Part B employee for whom he or she qualifies as an eligible surviving beneficiary under Part B of the Act. § 30.507 What compensation will be provided to covered Part B employees who only establish beryllium sensitivity under Part B of EEOICPA? The establishment of beryllium sensitivity does not entitle a covered Part B employee, or the eligible surviving beneficiary or beneficiaries of a deceased covered Part B employee, to any lump-sum payment provided for under Part B. Instead, a covered Part B employee whose sole accepted occupational illness is beryllium sensitivity shall receive beryllium sensitivity monitoring, as well as medical benefits for the treatment of this occupational illness in accordance with § 30.400 of these regulations. § 30.508 What is beryllium sensitivity monitoring? Beryllium sensitivity monitoring shall consist of medical examinations to confirm and monitor the extent and nature of a covered Part B employee's beryllium sensitivity. Monitoring shall also include regular medical examinations, with diagnostic testing, to determine if the covered Part B employee has established chronic beryllium disease. § 30.509 Under what circumstances may a survivor claiming under Part E of the Act choose to receive the benefits that would otherwise be payable to a covered Part E employee who is deceased?
(a)If a covered Part E employee dies after filing a claim but before monetary benefits are paid under Part E of the Act, and his or her death is from a cause other than a covered illness, his or her survivor can choose to receive either the survivor benefits payable on account of the death of that covered Part E employee, or the monetary benefits that would otherwise have been payable to the covered Part E employee.
(b)For the purposes of this section only, a death “from a cause other than a covered illness” refers only to a death that was *solely* caused by a non-covered illness or illnesses. Therefore, the choice referred to in paragraph
(a)of this section will not be available if a covered illness contributed to the death of the covered Part E employee in any manner. In those instances, survivor benefits will still be payable to the claimant, but he or she cannot choose to receive the monetary benefits that would have otherwise been payable to the deceased covered Part E employee in lieu of survivor benefits.
(c)OWCP only makes impairment determinations based on rationalized medical evidence in the case file that is sufficiently detailed and meets the various requirements for the many different types of impairment determinations possible under the AMA's *Guides* . Therefore, OWCP will only make an impairment determination for a deceased covered Part E employee pursuant to this section if the medical evidence of record is sufficient to satisfy the pertinent requirements in the AMA's *Guides* and subpart J of this part. Overpayments § 30.510 How does OWCP notify an individual of a payment made on a claim?
(a)In addition to providing narrative descriptions to recipients of benefits paid or payable, OWCP includes on each check a clear indication of the reason the payment is being made. For payments sent by electronic funds transfer, a notification of the date and amount of payment appears on the statement from the recipient's financial institution.
(b)By these means, OWCP puts the recipient on notice that a payment was made and the amount of the payment. If the amount received differs from the amount indicated on the written notice or bank statement, the recipient is responsible for notifying OWCP of the difference. Absent affirmative evidence to the contrary, the recipient will be presumed to have received the notice of payment, whether mailed or transmitted electronically. § 30.511 What is an “overpayment” for purposes of EEOICPA? An “overpayment” is any amount of compensation paid under sections 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 of the EEOICPA to a recipient that constitutes, as of the time OWCP makes such payment:
(a)Payment where no amount is payable under this part; or
(b)Payment in excess of the correct amount determined by OWCP. § 30.512 What does OWCP do when an overpayment is identified? Before seeking to recover an overpayment or adjust benefits, OWCP will advise the recipient of the overpayment in writing that:
(a)The overpayment exists, and the amount of overpayment;
(b)A preliminary finding shows either that the recipient was or was not at fault in the creation of the overpayment;
(c)He or she has the right to inspect and copy OWCP records relating to the overpayment; and
(d)He or she has the right to present written evidence which challenges the fact or amount of the overpayment, and/or challenges the preliminary finding that he or she was at fault in the creation of the overpayment. He or she may also request that recovery of the overpayment be waived. Any submission of evidence or request that recovery of the overpayment be waived must be presented to OWCP within 30 days of the date of the written notice of overpayment. § 30.513 Under what circumstances may OWCP waive recovery of an overpayment?
(a)OWCP may consider waiving recovery of an overpayment only if the recipient was not at fault in accepting or creating the overpayment. Recipients of benefits paid under EEOICPA are responsible for taking all reasonable measures to ensure that payments received from OWCP are proper. The recipient must show good faith and exercise a high degree of care in reporting events which may affect entitlement to or the amount of benefits. A recipient who has done any of the following will be found to be at fault with respect to creating an overpayment:
(1)Made an incorrect statement as to a material fact which he or she knew or should have known to be incorrect; or
(2)Failed to provide information which he or she knew or should have known to be material; or
(3)Accepted a payment which he or she knew or should have known to be incorrect. (This provision applies only to the overpaid individual.)
(b)Whether or not OWCP determines that a recipient was at fault with respect to the creation of an overpayment depends on the circumstances surrounding the overpayment. The degree of care expected may vary with the complexity of those circumstances and the recipient's capacity to realize that he or she is being overpaid. § 30.514 If OWCP finds that the recipient of an overpayment was not at fault, what criteria are used to decide whether to waive recovery of it? If OWCP finds that the recipient of an overpayment was not at fault, repayment will still be required unless:
(a)Adjustment or recovery of the overpayment would defeat the purpose of the Act (see § 30.516); or
(b)Adjustment or recovery of the overpayment would be against equity and good conscience (see § 30.517). § 30.515 Is a recipient responsible for an overpayment that resulted from an error made by OWCP?
(a)The fact that OWCP may have erred in making the overpayment does not by itself relieve the recipient of the overpayment from liability for repayment if the recipient also was at fault in accepting the overpayment.
(b)However, OWCP may find that the recipient was not at fault if failure to report an event affecting compensation benefits, or acceptance of an incorrect payment, occurred because:
(1)The recipient relied on misinformation given in writing by OWCP regarding the interpretation of a pertinent provision or EEOICPA of this part; or
(2)OWCP erred in calculating either the percentage of impairment or wage-loss under Part E of EEOICPA. § 30.516 Under what circumstances would recovery of an overpayment defeat the purpose of the Act? Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause hardship to the recipient because:
(a)The recipient from whom OWCP seeks recovery needs substantially all of his or her current income to meet current ordinary and necessary living expenses; and
(b)The recipient's assets do not exceed two months' expenditures as determined by OWCP using the Bureau of Labor Statistics Consumer Expenditure Survey tables. § 30.517 Under what circumstances would recovery of an overpayment be against equity and good conscience?
(a)Recovery of an overpayment is considered to be against equity and good conscience when the recipient would experience severe financial hardship in attempting to repay the debt.
(b)Recovery of an overpayment is also considered to be against equity and good conscience when the recipient, in reliance on such payments or on notice that such payments would be made, gives up a valuable right or changes his or her position for the worse. In making such a decision, OWCP does not consider the recipient's current ability to repay the overpayment.
(1)To establish that a valuable right has been relinquished, it must be shown that the right was in fact valuable, that it cannot be regained, and that the action was based chiefly or solely in reliance on the payments or on the notice of payment. Gratuitous transfers of funds to other individuals are not considered relinquishments of valuable rights.
(2)To establish that a recipient's position has changed for the worse, it must be shown that the decision made would not otherwise have been made but for the receipt of benefits, and that this decision resulted in a loss. § 30.518 Can OWCP require the recipient of the overpayment to submit additional financial information?
(a)The recipient of the overpayment is responsible for providing information about income, expenses and assets as specified by OWCP. This information is needed to determine whether or not recovery of an overpayment would defeat the purpose of the Act, or would be against equity and good conscience. This information will also be used to determine the repayment schedule, if necessary.
(b)Failure to submit this requested information within 30 days of the request shall result in denial of waiver, and no further request for waiver shall be considered until the requested information is furnished. § 30.519 How does OWCP communicate its final decision concerning recovery of an overpayment?
(a)After considering any written documentation or argument submitted to OWCP within the 30-day period set out in § 30.512(d), OWCP will issue a final decision on the overpayment. OWCP will send a copy of the final decision to the individual from whom recovery is sought and his or her representative, if any.
(b)The provisions of subpart D of this part do not apply to any decision regarding the recovery of an overpayment. § 30.520 How are overpayments collected?
(a)When an overpayment has been made to a recipient who is entitled to further payments, the recipient shall refund to OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is called to same. If no refund is made, OWCP shall recover the overpayment by reducing any further lump-sum payments due currently or in the future, taking into account the financial circumstances of the recipient, and any other relevant factors, so as to minimize any hardship. Should the recipient die before collection has been completed, further collection shall be made by decreasing later payments, if any, payable under EEOICPA with respect to the underlying occupational illness or covered illness.
(b)When an overpayment has been made to a recipient and OWCP is unable to recover the overpayment by reducing compensation due currently, the recipient shall refund to OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is called to same. The overpayment is subject to the provisions of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701 *et seq.* ), and may be reported to the Internal Revenue Service as income. If the recipient fails to make such refund, OWCP may recover the overpayment through any available means, including offset of salary, annuity benefits, or other Federal payments, including tax refunds as authorized by the Tax Refund Offset Program, or referral of the debt to a collection agency or to the Department of Justice. Subpart G—Special Provisions Representation § 30.600 May a claimant designate a representative?
(a)The claims process under this part is informal, and OWCP acts as an impartial evaluator of the evidence. A claimant need not be represented to file a claim or receive a payment. Nevertheless, a claimant may appoint one individual to represent his or her interests, but the appointment must be in writing.
(b)There can be only one representative at any one time, so after one representative has been properly appointed, OWCP will not recognize another individual as a representative until the claimant withdraws the authorization of the first individual. In addition, OWCP will recognize only certain types of individuals (see § 30.601). For the purposes of paragraph
(b)of this section, a “representative” does not include a person who only has a power of attorney to act on behalf of a claimant.
(c)A properly appointed representative who is recognized by OWCP may make a request or give direction to OWCP regarding the claims process, including a hearing. This authority includes presenting or eliciting evidence, making arguments on facts or the law, and obtaining information from the case file, to the same extent as the claimant.
(1)Any notice requirement contained in this part or EEOICPA is fully satisfied if served on the representative, and has the same force and effect as if sent to the claimant.
(2)A representative does not have authority to sign the Form EN-20, described in § 30.505(c) of these regulations, which collects information necessary for issuance of a compensation payment. § 30.601 Who may serve as a representative? A claimant may authorize any individual to represent him or her in regard to a claim under EEOICPA, unless that individual's service as a representative would violate any applicable provision of law (such as 18 U.S.C. 205 and 208). A federal employee may act as a representative only:
(a)On behalf of immediate family members, defined as a spouse, children, parents, and siblings of the representative, provided no fee or gratuity is charged; or
(b)While acting as a union representative, defined as any officially sanctioned union official, and no fee or gratuity is charged. § 30.602 Who is responsible for paying the representative's fee? A representative may charge the claimant a fee for services and for costs associated with the representation before OWCP. The claimant is solely responsible for paying the fee and other costs. OWCP will not reimburse the claimant, nor is it in any way liable for the amount of the fee and costs. § 30.603 Are there any limitations on what the representative may charge the claimant for his or her services?
(a)Notwithstanding any contract, the representative may not receive, for services rendered in connection with a claim pending before OWCP, more than the percentages of the lump-sum payment made to the claimant set out in paragraph
(b)of this section.
(b)The percentages referred to in paragraph
(a)of this section are:
(1)2 percent for the filing of an initial claim with OWCP, provided that the representative was retained prior to the filing of the initial claim; plus
(2)10 percent of the difference between the lump-sum payment made to the claimant and the amount proposed in the recommended decision with respect to objections to a recommended decision. (c)(1) Any representative who violates this section shall be fined not more than $5,000.
(2)The authority to prosecute violations of this limitation lies with the Department of Justice.
(d)The fee limitations described in this section shall not apply with respect to representative services that are rendered in connection with a petition filed with a U.S. District Court seeking review of an OWCP decision that is final pursuant to § 30.316(d), or with respect to any subsequent appeal in such a proceeding. Third Party Liability § 30.605 What rights does the United States have upon payment of compensation under EEOICPA? If an occupational illness or covered illness for which compensation is payable under EEOICPA is caused, wholly or partially, by someone other than a federal employee acting within the scope of his or her employment, a DOE contractor or subcontractor, a beryllium vendor, an atomic weapons employer or a RECA section 5 mine or mill, the United States is subrogated for the full amount of any payment of compensation under EEOICPA to any right or claim that the individual to whom the payment was made may have against any person or entity on account of such occupational illness or covered illness. § 30.606 Under what circumstances must a recovery of money or other property in connection with an illness for which benefits are payable under EEOICPA be reported to OWCP? Any person who has filed an EEOICPA claim that has been accepted by OWCP (whether or not compensation has been paid), or who has received EEOICPA benefits in connection with a claim filed by another, is required to notify OWCP of the receipt of money or other property as a result of a settlement or judgment in connection with the circumstances of that claim. § 30.607 How is a structured settlement (that is, a settlement providing for receipt of funds over a specified period of time) treated for purposes of reporting the recovery? In this situation, the recovery to be reported is the present value of the right to receive all of the payments included in the structured settlement, allocated in the case of multiple recipients in the same manner as single payment recoveries. § 30.608 How does the United States calculate the amount to which it is subrogated? The subrogated amount of a specific claim consists of the total money paid by OWCP from the Energy Employees Occupational Illness Compensation Fund with respect to that claim to or on behalf of a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary, less charges for any medical file review ( *i.e.* , the physician did not examine the employee) done at the request of OWCP. Charges for medical examinations also may be subtracted if the covered Part B employee, covered Part E employee or an eligible surviving beneficiary establishes that the examinations were required to be made available to the covered Part B employee or covered Part E employee under a statute other than EEOICPA. § 30.609 Is a settlement or judgment received as a result of allegations of medical malpractice in treating an illness covered by EEOICPA a recovery that must be reported to OWCP? Since an injury caused by medical malpractice in treating an occupational illness or covered illness compensable under EEOICPA is also covered under EEOICPA, any recovery in a suit alleging such an injury is treated as a recovery that must be reported to OWCP. § 30.610 Are payments to a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary as a result of an insurance policy which the employee or eligible surviving beneficiary has purchased a recovery that must be reported to OWCP? Since payments received by a covered Part B employee, a covered Part E employee or an eligible surviving beneficiary pursuant to an insurance policy purchased by someone other than a liable third party are not payments in satisfaction of liability for causing an occupational illness or covered illness compensable under the Act, they are not considered a recovery that must be reported to OWCP. § 30.611 If a settlement or judgment is received for more than one medical condition, can the amount paid on a single EEOICPA claim be attributed to different conditions for purposes of calculating the amount to which the United States is subrogated?
(a)All medical conditions accepted by OWCP in connection with a single claim are treated as the same illness for the purpose of computing the amount which the United States is entitled to offset in connection with the receipt of a recovery from a third party, except that an injury caused by medical malpractice in treating an illness covered under EEOICPA will be treated as a separate injury.
(b)If an illness covered under EEOICPA is caused under circumstances creating a legal liability in more than one person, other than the United States, a DOE contractor or subcontractor, a beryllium vendor or an atomic weapons employer, to pay damages, OWCP will determine whether recoveries received from one or more third parties should be attributed to separate conditions for which compensation is payable in connection with a single EEOICPA claim. If such an attribution is both practicable and equitable, as determined by OWCP, in its discretion, the conditions will be treated as separate injuries for purposes of calculating the amount to which the United States is subrogated. Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons Employers § 30.615 What type of tort suits filed against beryllium vendors or atomic weapons employers may disqualify certain claimants from receiving benefits under Part B of EEOICPA?
(a)A tort suit (other than an administrative or judicial proceeding for workers' compensation) that includes a claim arising out of a covered Part B employee's employment-related exposure to beryllium or radiation, filed against a beryllium vendor or an atomic weapons employer, by a covered Part B employee or an eligible surviving beneficiary or beneficiaries of a deceased covered Part B employee, will disqualify that otherwise eligible individual or individuals from receiving benefits under Part B of EEOICPA unless such claim is terminated in accordance with the requirements of §§ 30.616 through 30.619 of these regulations.
(b)The term “claim arising out of a covered Part B employee's employment-related exposure to beryllium or radiation” used in paragraph
(a)of this section includes a claim that is derivative of a covered Part B employee's employment-related exposure to beryllium or radiation, such as a claim for loss of consortium raised by a covered Part B employee's spouse.
(c)If all claims arising out of a covered Part B employee's employment-related exposure to beryllium or radiation are terminated in accordance with the requirements of §§ 30.616 through 30.619 of these regulations, proceeding with the remaining portion of the tort suit filed against a beryllium vendor or an atomic weapons employer will not disqualify an otherwise eligible individual or individuals from receiving benefits under Part B of EEOICPA. § 30.616 What happens if this type of tort suit was filed prior to October 30, 2000?
(a)If a tort suit described in § 30.615 was filed prior to October 30, 2000, the claimant or claimants will not be disqualified from receiving any EEOICPA benefits to which they may be found entitled if the tort suit was terminated in any manner prior to December 28, 2001.
(b)If a tort suit described in § 30.615 was filed prior to October 30, 2000 and was pending as of December 28, 2001, the claimant or claimants will be disqualified from receiving any benefits under Part B of EEOICPA unless they dismissed all claims arising out of a covered Part B employee's employment-related exposure to beryllium or radiation that were included in the tort suit prior to December 31, 2003. § 30.617 What happens if this type of tort suit was filed during the period from October 30, 2000 through December 28, 2001?
(a)If a tort suit described in § 30.615 was filed during the period from October 30, 2000 through December 28, 2001, the claimant or claimants will be disqualified from receiving any benefits under Part B of EEOICPA unless they dismiss all claims arising out of a covered Part B employee's employment-related exposure to beryllium or radiation that are included in the tort suit on or before the last permissible date described in paragraph
(b)of this section.
(b)The last permissible date is the later of:
(1)April 30, 2003; or
(2)The date that is 30 months after the date the claimant or claimants first became aware that an illness of the covered Part B employee may be connected to his or her exposure to beryllium or radiation covered by EEOICPA. For purposes of determining when this 30-month period begins, “the date the claimant or claimants first became aware” will be deemed to be the date they received either a reconstructed dose from HHS, or a diagnosis of a covered beryllium illness, as applicable. § 30.618 What happens if this type of tort suit was filed after December 28, 2001?
(a)If a tort suit described in § 30.615 was filed after December 28, 2001, the claimant or claimants will be disqualified from receiving any benefits under Part B of EEOICPA if a judgment is entered against them.
(b)If a tort suit described in § 30.615 was filed after December 28, 2001 and a judgment has not yet been entered against the claimant or claimants, they will also be disqualified from receiving any benefits under Part B of EEOICPA unless, prior to entry of any judgment, they dismiss all claims arising out of a covered Part B employee's employment-related exposure to beryllium or radiation that are included in the tort suit on or before the last permissible date described in paragraph
(c)of this section.
(c)The last permissible date is the later of:
(1)April 30, 2003; or
(2)The date that is 30 months after the date the claimant or claimants first became aware that an illness of the covered Part B employee may be connected to his or her exposure to beryllium or radiation covered by EEOICPA. For purposes of determining when this 30-month period begins, “the date the claimant or claimants first became aware” will be deemed to be the date they received either a reconstructed dose from HHS, or a diagnosis of a covered beryllium illness, as applicable. § 30.619 Do all the parties to this type of tort suit have to take these actions? The type of tort suits described in § 30.615 may be filed by more than one individual, each with a different cause of action. For example, a tort suit may be filed against a beryllium vendor by both a covered Part B employee and his or her spouse, with the covered Part B employee claiming for chronic beryllium disease and the spouse claiming for loss of consortium due to the covered Part B employee's exposure to beryllium. However, since the spouse of a living covered Part B employee could not be an eligible surviving beneficiary under Part B of EEOICPA, the spouse would not have to comply with the termination requirements of §§ 30.616 through 30.618. A similar result would occur if a tort suit were filed by both the spouse of a deceased covered Part B employee and other family members (such as children of the deceased covered part B employee). In this case, the spouse would be the only eligible surviving beneficiary of the deceased covered Part B employee under Part B of the EEOICPA because the other family members could not be eligible for benefits while he or she was alive. As a result, the spouse would be the only party to the tort suit who would have to comply with the termination requirements of §§ 30.616 through 30.618. § 30.620 How will OWCP ascertain whether a claimant filed this type of tort suit and if he or she has been disqualified from receiving any benefits under Part B of EEOICPA? Prior to authorizing payment on a claim under Part B of EEOICPA, OWCP will require each claimant to execute and provide an affidavit stating if he or she filed a tort suit (other than an administrative or judicial proceeding for workers' compensation) against either a beryllium vendor or an atomic weapons employer that included a claim arising out of a covered Part B employee's employment-related exposure to beryllium or radiation, and if so, the current status of such tort suit. OWCP may also require the submission of any supporting evidence necessary to confirm the particulars of any affidavit provided under this section. Coordination of Part E Benefits With State Workers' Compensation Benefits § 30.625 What does “coordination of benefits” mean under Part E of EEOICPA? In general, “coordination of benefits” under Part E of the Act occurs when compensation to be received under Part E is reduced by OWCP, pursuant to section 7385s-11 of EEOICPA, to reflect certain benefits the beneficiary receives under a state workers' compensation program for the same covered illness. § 30.626 How will OWCP coordinate compensation payable under Part E of EEOICPA with benefits from state workers' compensation programs?
(a)OWCP will reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers' compensation program by reason of the same covered illness, after deducting the reasonable costs to the claimant of obtaining those benefits.
(b)To determine the amount of any reduction of EEOICPA compensation, OWCP shall require the covered Part E employee or each eligible surviving beneficiary filing a claim under Part E to execute and provide affidavits reporting the amount of any benefit received pursuant to a claim filed in a state workers' compensation program for the same covered illness.
(c)If a covered Part E employee or a survivor of such employee receives benefits through a state workers' compensation program pursuant to a claim for the same covered illness, OWCP shall reduce a portion of the dollar amount of such state workers' benefit from the compensation payable under Part E. OWCP will calculate the net amount of the state workers' compensation benefit amount to be subtracted from the compensation payment under Part E in the following manner:
(1)OWCP will first determine the dollar value of the benefits received by that individual from a state workers' compensation program by including all benefits, other than medical and vocational rehabilitation benefits, received for the same covered illness or injury sustained as a consequence of a covered illness.
(2)OWCP will then make certain deductions from the above dollar benefit received under a state workers' compensation program to arrive at the dollar amount that will be subtracted from any compensation payable under Part E of EEOICPA.
(i)Allowable deductions consist of reasonable costs in obtaining state workers' compensation benefits incurred by that individual, including but not limited to attorney's fees OWCP deems reasonable and itemized costs of suit (out-of-pocket expenditures not part of the normal overhead of a law firm's operation like filing, travel expenses, witness fees, and court reporter costs for transcripts), provided that adequate supporting documentation is submitted to OWCP for its consideration.
(ii)The EEOICPA benefits that will be reduced will consist of any unpaid monetary payments payable in the future and medical benefits payable in the future. In those cases where it has not yet paid EEOICPA benefits under Part E, OWCP will reduce such benefits on a dollar-for-dollar basis, beginning with the current monetary payments first. If the amount to be subtracted exceeds the monetary payments currently payable, OWCP will reduce ongoing EEOICPA medical benefits payable in the future by the amount of any remaining surplus. This means that OWCP will apply the amount it would otherwise pay to reimburse the covered Part E employee for any ongoing EEOICPA medical treatment to the remaining surplus until it is absorbed (or until further monetary benefits become payable that are sufficient to absorb the surplus).
(3)The above coordination of benefits will not occur if the beneficiary under a state workers' compensation program receives state workers' compensation benefits for both a covered and a non-covered illness arising out of and in the course of the same work-related incident. § 30.627 Under what circumstances will OWCP waive the statutory requirement to coordinate these benefits? A waiver to the requirement to coordinate Part E benefits with benefits paid under a state workers' compensation program may be granted if OWCP determines that the administrative costs and burdens of coordinating benefits in a particular case or class of cases justifies the waiver. This decision is exclusively within the discretion of OWCP. Subpart H—Information for Medical Providers Medical Records and Bills § 30.700 What kinds of medical records must providers keep? Federal Government medical officers, private physicians and hospitals are required to keep records of all cases treated by them under EEOICPA so they can supply OWCP with a history of the claimed occupational illness or covered illness, a description of the nature and extent of the claimed occupational illness or covered illness, the results of any diagnostic studies performed, and the nature of the treatment rendered. This requirement terminates after a provider has supplied OWCP with the above-noted information, and otherwise terminates ten years after the record was created. § 30.701 How are medical bills to be submitted?
(a)All charges for medical and surgical treatment, appliances or supplies furnished to employees, except for treatment and supplies provided by nursing homes, shall be supported by medical evidence as provided in § 30.700. The physician or provider shall itemize the charges on Form OWCP-1500 or CMS-1500 (for professional charges), Form OWCP-04 or UB-04 (for hospitals), an electronic or paper-based bill that includes required data elements (for pharmacies), or other form as warranted, and submit the form or bill promptly for processing.
(b)The provider shall identify each service performed using the Physician's Current Procedural Terminology
(CPT)code, the Healthcare Common Procedure Coding System (HCPCS) code, the National Drug Code
(NDC)number, or the Revenue Center Code (RCC), with a brief narrative description. Where no code is applicable, a detailed description of services performed should be provided.
(c)For professional charges billed on Form OWCP-1500 or CMS-1500, the provider shall also state each diagnosed condition and furnish the corresponding diagnostic code using the “International Classification of Disease, 9th Edition, Clinical Modification” (ICD-9-CM), or as revised. A separate bill shall be submitted when the employee is discharged from treatment or monthly, if treatment for the occupational illness is necessary for more than 30 days. (1)(i) Hospitals shall submit charges for medical and surgical treatment or supplies promptly on Form OWCP-04 or UB-04. The provider shall identify each outpatient radiology service, outpatient pathology service and physical therapy service performed, using HCPCS/CPT codes with a brief narrative description. The charge for each individual service, or the total charge for all identical services, should also appear on the form.
(ii)Other outpatient hospital services for which HCPCS/CPT codes exist shall also be coded individually using the coding scheme noted in this section. Services for which there are no HCPCS/CPT codes available can be presented using the RCCs described in the “National Uniform Billing Data Elements Specifications,” current edition. The provider shall also furnish the diagnostic code using the ICD-9-CM. If the outpatient hospital services include surgical and/or invasive procedures, the provider shall code each procedure using the proper HCPCS/CPT codes and furnishing the corresponding diagnostic codes using the ICD-9-CM.
(2)Pharmacies shall itemize charges for prescription medications, appliances, or supplies on electronic or paper-based bills and submit them promptly for processing. Bills for prescription medications must include all required data elements, including the NDC number assigned to the product, the generic or trade name of the drug provided, the prescription number, the quantity provided, and the date the prescription was filled.
(3)Nursing homes shall itemize charges for appliances, supplies or services on the provider's billhead stationery and submit them promptly for processing.
(d)By submitting a bill and/or accepting payment, the provider signifies that the service for which payment is sought was performed as described and was necessary. In addition, the provider thereby agrees to comply with all regulations set forth in this subpart concerning the rendering of treatment and/or the process for seeking payment for medical services, including the limitation imposed on the amount to be paid for such services.
(e)In summary, bills submitted by providers must: Be itemized on Form OWCP-1500 or CMS-1500 (for physicians), Form OWCP-04 or UB-04 (for hospitals), or an electronic or paper-based bill that includes required data elements (for pharmacies); contain the signature or signature stamp of the provider; and identify the procedures using HCPCS/CPT codes, RCCs, or NDC numbers. Otherwise, the bill may be returned to the provider for correction and resubmission. The decision of OWCP whether to pay a provider's bill is final when issued and is not subject to the adjudicatory process described in subpart D of this part. § 30.702 How should an employee prepare and submit requests for reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses?
(a)If an employee has paid bills for medical, surgical or other services, supplies or appliances provided by a professional due to an occupational illness or a covered illness, he or she must submit a request for reimbursement on Form OWCP-915, together with an itemized bill on Form OWCP-1500 or CMS-1500 prepared by the provider and a medical report as provided in § 30.700, for consideration.
(1)The provider of such service shall state each diagnosed condition and furnish the applicable ICD-9-CM code and identify each service performed using the applicable HCPCS/CPT code, with a brief narrative description of the service performed, or, where no code is applicable, a detailed description of that service.
(2)The reimbursement request must be accompanied by evidence that the provider received payment for the service from the employee and a statement of the amount paid. Acceptable evidence that payment was received includes, but is not limited to, a signed statement by the provider, a mechanical stamp or other device showing receipt of payment, a copy of the employee's canceled check (both front and back) or a copy of the employee's credit card receipt.
(b)If a hospital, pharmacy or nursing home provided services for which the employee paid, the employee must also use Form OWCP-915 to request reimbursement and should submit the request in accordance with the provisions of § 30.701(a). Any such request for reimbursement must be accompanied by evidence, as described in paragraph (a)(2) of this section, that the provider received payment for the service from the employee and a statement of the amount paid.
(c)The requirements of paragraphs
(a)and
(b)of this section may be waived if extensive delays in the filing or the adjudication of a claim make it unusually difficult for the employee to obtain the required information.
(d)Copies of bills submitted for reimbursement will not be accepted unless they bear the original signature of the provider and evidence of payment. Payment for medical and surgical treatment, appliances or supplies shall in general be no greater than the maximum allowable charge for such service determined by OWCP, as set forth in § 30.705. The decision of OWCP whether to reimburse an employee for out-of-pocket medical expenses, and the amount of any reimbursement, is final when issued and is not subject to the adjudicatory process described in subpart D of this part.
(e)An employee will be only partially reimbursed for a medical expense if the amount he or she paid to a provider for the service exceeds the maximum allowable charge set by OWCP's schedule. If this happens, the employee will be advised of the maximum allowable charge for the service in question and of his or her responsibility to ask the provider to refund to the employee, or credit to the employee's account, the amount he or she paid which exceeds the maximum allowable charge. The provider that the employee paid, but not the employee, may request reconsideration of the fee determination as set forth in § 30.712.
(f)If the provider fails to make appropriate refund to the employee, or to credit the employee's account, within 60 days after the employee requests a refund of any excess amount, or the date of a subsequent reconsideration decision which continues to disallow all or a portion of the disputed amount, OWCP will initiate exclusion procedures as provided by § 30.715.
(g)If the provider does not refund to the employee or credit to his or her account the amount of money paid in excess of the allowed charge, the employee should submit documentation of the attempt to obtain such refund or credit to OWCP. OWCP may authorize reasonable reimbursement to the employee after reviewing the facts and circumstances of the case. § 30.703 What are the time limitations on OWCP's payment of bills? OWCP will pay providers and reimburse employees promptly for all bills received on an approved form and in a timely manner. However, no bill will be paid for expenses incurred if the bill is submitted more than one year beyond the end of the calendar year in which the expense was incurred or the service or supply was provided, or more than one year beyond the end of the calendar year in which the claim was first accepted as compensable by OWCP, whichever is later. Medical Fee Schedule § 30.705 What services are covered by the OWCP fee schedule?
(a)Payment for medical and other health services furnished by physicians, hospitals and other providers for occupational illnesses or covered illnesses shall not exceed a maximum allowable charge for such service as determined by OWCP, except as provided in this section.
(b)The schedule of maximum allowable charges does not apply to charges for services provided in nursing homes, but it does apply to charges for treatment furnished in a nursing home by a physician or other medical professional.
(c)The schedule of maximum allowable charges also does not apply to charges for appliances, supplies, services or treatment furnished by medical facilities of the U.S. Public Health Service or the Departments of the Army, Navy, Air Force and Veterans Affairs. § 30.706 How are the maximum fees defined? For professional medical services, OWCP shall maintain a schedule of maximum allowable fees for procedures performed in a given locality. The schedule shall consist of: An assignment of a value to procedures identified by HCPCS/CPT code which represents the relative skill, effort, risk and time required to perform the procedure, as compared to other procedures of the same general class; an index based on a relative value scale that considers skill, labor, overhead, malpractice insurance and other related costs; and a monetary value assignment (conversion factor) for one unit of value in each of the categories of service. § 30.707 How are payments for particular services calculated? Payment for a procedure identified by a HCPCS/CPT code shall not exceed the amount derived by multiplying the relative values for that procedure by the geographic indices for services in that area and by the dollar amount assigned to one unit in that category of service.
(a)The “locality” which serves as a basis for the determination of average cost is defined by the Bureau of Census Metropolitan Statistical Areas. OWCP shall base the determination of the relative per capita cost of medical care in a locality using information about enrollment and medical cost per county, provided by the Centers for Medicare and Medicaid Services (CMS).
(b)OWCP shall assign the relative value units
(RVUs)published by CMS to all services for which CMS has made assignments, using the most recent revision. Where there are no RVUs assigned to a procedure, OWCP may develop and assign any RVUs considered appropriate. The geographic adjustment factor shall be that designated by Geographic Practice Cost Indices for Metropolitan Statistical Areas as devised for CMS and as updated or revised by CMS from time to time. OWCP will devise conversion factors for each category of service, and in doing so may adapt CMS conversion factors as appropriate using OWCP's processing experience and internal data.
(c)For example, if the unit values for a particular surgical procedure are 2.48 for physician's work (W), 3.63 for practice expense (PE), and 0.48 for malpractice insurance (M), and the dollar value assigned to one unit in that category of service (surgery) is $61.20, then the maximum allowable charge for one performance of that procedure is the product of the three RVUs times the corresponding geographical indices for the locality times the conversion factor. If the geographic indices for the locality are 0.988(W), 0.948 (PE), and 1.174 (M), then the maximum payment calculation is: [(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] × $61.20 [2.45 + 3.44 + .56] × $61.20 6.45 × $61.20 = $394.74 § 30.708 Does the fee schedule apply to every kind of procedure? Where the time, effort and skill required to perform a particular procedure vary widely from one occasion to the next, OWCP may choose not to assign a relative value to that procedure. In this case the allowable charge for the procedure will be set individually based on consideration of a detailed medical report and other evidence. At its discretion, OWCP may set fees without regard to schedule limits for specially authorized consultant examinations, for directed medical examinations, and for other specially authorized services. § 30.709 How are payments for medicinal drugs determined? Payment for medicinal drugs prescribed by physicians shall not exceed the amount derived by multiplying the average wholesale price of the medication by the quantity or amount provided, plus a dispensing fee.
(a)All prescription medications identified by NDC number will be assigned an average wholesale price representing the product's nationally recognized wholesale price as determined by surveys of manufacturers and wholesalers. OWCP will establish the dispensing fee.
(b)The NDC numbers, the average wholesale prices, and the dispensing fee shall be reviewed from time to time and updated as necessary. § 30.710 How are payments for inpatient medical services determined?
(a)OWCP will pay for inpatient medical services according to pre-determined, condition-specific rates based on the Prospective Payment System
(PPS)devised by CMS (42 CFR parts 412, 413, 424, 485, and 489). Using this system, payment is derived by multiplying the diagnosis-related group
(DRG)weight assigned to the hospital discharge by the provider-specific factors.
(1)All hospital discharges will be classified according to the DRGs prescribed by CMS in the form of the DRG Grouper software program. On this list, each DRG represents the average resources necessary to provide care in a case in that DRG relative to the national average of resources consumed per case.
(2)The provider-specific factors will be provided by CMS in the form of their PPS Pricer software program. The software takes into consideration the type of facility, census division, actual geographic location of the hospital, case mix cost per discharge, number of hospital beds, intern/beds ratio, operating cost to charge ratio, and other factors used by CMS to determine the specific rate for a hospital discharge under their PPS. OWCP may devise price adjustment factors as appropriate using OWCP's processing experience and internal data.
(3)OWCP will base payments to facilities excluded from CMS's PPS on consideration of detailed medical reports and other evidence.
(4)OWCP shall review the pre-determined hospital rates at least once a year, and may adjust any or all components when OWCP deems it necessary or appropriate.
(b)OWCP shall review the schedule of fees at least once a year, and may adjust the schedule or any of its components when OWCP deems it necessary or appropriate. § 30.711 When and how are fees reduced?
(a)OWCP shall accept a provider's designation of the code to identify a billed procedure or service if the code is consistent with medical reports and other evidence. Where no code is supplied, OWCP may determine the code based on the narrative description of the procedure on the billing form and in associated medical reports. OWCP will pay no more than the maximum allowable fee for that procedure.
(b)If the charge submitted for a service supplied to an employee exceeds the maximum amount determined to be reasonable according to the schedule, OWCP shall pay the amount allowed by the schedule for that service and shall notify the provider in writing that payment was reduced for that service in accordance with the schedule. OWCP shall also notify the provider of the method for requesting reconsideration of the balance of the charge. The decision of OWCP to pay less than the charged amount is final when issued and is not subject to the adjudicatory process described in subpart D of this part. § 30.712 If OWCP reduces a fee, may a provider request reconsideration of the reduction?
(a)A physician or other provider whose charge for service is only partially paid because it exceeds a maximum allowable amount set by OWCP may, within 30 days, request reconsideration of the fee determination.
(1)Any such request will be considered by the district office with jurisdiction over the employee's claim. The request must be accompanied by documentary evidence that the procedure performed was either incorrectly identified by the original code, that the presence of a severe or concomitant medical condition made treatment especially difficult, or that the provider possessed unusual qualifications. In itself, board certification in a specialty is not sufficient evidence of unusual qualifications to justify a charge in excess of the maximum allowable amount set by OWCP. These are the only three circumstances that will justify reevaluation of the paid amount.
(2)A list of district offices and their respective areas of jurisdiction is available upon request from the U.S. Department of Labor, Office of Workers' Compensation Programs, Washington, DC 20210, or on the Internet at *http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm* . Within 30 days of receiving the request for reconsideration, the district office shall respond in writing stating whether or not an additional amount will be allowed as reasonable, considering the evidence submitted.
(b)If the district office issues a decision that continues to disallow a contested amount, the provider may apply to the Regional Director of the region with jurisdiction over the district office. The application must be filed within 30 days of the date of such decision, and it may be accompanied by additional evidence. Within 60 days of receipt of such application, the Regional Director shall issue a decision in writing stating whether or not an additional amount will be allowed as reasonable, considering the evidence submitted. § 30.713 If OWCP reduces a fee, may a provider bill the employee for the balance? A provider whose fee for service is partially paid by OWCP as a result of the application of its fee schedule or other tests for reasonableness in accordance with this part shall not request payment from the employee for the unpaid amount of the provider's bill.
(a)Where a provider's fee for a particular service or procedure is lower to the general public than as provided by the schedule of maximum allowable charges, the provider shall bill at the lower rate. A fee for a particular service or procedure which is higher than the provider's fee to the general public for that same service or procedure will be considered a charge “substantially in excess of such provider's customary charges” for the purposes of § 30.715(d).
(b)A provider whose fee for service is partially paid by OWCP as the result of the application of the schedule of maximum allowable charges and who collects or attempts to collect from the employee, either directly or through a collection agent, any amount in excess of the charge allowed by OWCP, and who does not cease such action or make appropriate refund to the employee within 60 days of the date of the decision of OWCP, shall be subject to the exclusion procedures provided by § 30.715(h). Exclusion of Providers § 30.715 What are the grounds for excluding a provider from payment under this part? A physician, hospital, or provider of medical services or supplies shall be excluded from payment under this part if such physician, hospital or provider has:
(a)Been convicted under any criminal statute of fraudulent activities in connection with any federal or state program for which payments are made to providers for similar medical, surgical or hospital services, appliances or supplies;
(b)Been excluded or suspended, or has resigned in lieu of exclusion or suspension, from participation in any federal or state program referred to in paragraph
(a)of this section;
(c)Knowingly made, or caused to be made, any false statement or misrepresentation of a material fact in connection with a determination of the right to reimbursement under this part, or in connection with a request for payment;
(d)Submitted, or caused to be submitted, three or more bills or requests for payment within a 12-month period under this subpart containing charges which OWCP finds to be substantially in excess of such provider's customary charges, unless OWCP finds there is good cause for the bills or requests containing such charges;
(e)Knowingly failed to timely reimburse employees for treatment, services or supplies furnished under this subpart and paid for by OWCP;
(f)Failed, neglected or refused on three or more occasions during a 12-month period to submit full and accurate medical reports, or to respond to requests by OWCP for additional reports or information, as required by § 30.700 of this part;
(g)Knowingly furnished treatment, services or supplies which are substantially in excess of the employee's needs, or of a quality which fails to meet professionally recognized standards; or
(h)Collected or attempted to collect from the employee, either directly or through a collection agent, an amount in excess of the charge allowed by OWCP for the procedure performed, and has failed or refused to make appropriate refund to the employee, or to cease such collection attempts, within 60 days of the date of the decision of OWCP. § 30.716 What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies?
(a)OWCP shall automatically exclude a physician, hospital, or provider of medical services or supplies who:
(1)Has been convicted of a crime described in § 30.715(a); or
(2)Has been excluded or suspended, or has resigned in lieu of exclusion or suspension, from participation in any federal or state program for which payments are made to providers for similar medical, surgical or hospital services, appliances or supplies.
(b)The exclusion applies to participating in the program and to seeking payment under this part for services performed after the date of the entry of the judgment of conviction or order of exclusion, suspension or resignation, as the case may be, by the court or agency concerned. Proof of the conviction, exclusion, suspension or resignation may consist of a copy thereof authenticated by the seal of the court or agency concerned. § 30.717 When are OWCP's exclusion procedures initiated? Upon receipt of information indicating that a physician, hospital or provider of medical services or supplies (hereinafter the provider) has engaged in activities enumerated in paragraphs
(c)through
(h)of § 30.715, the Regional Director, after completion of inquiries he or she deems appropriate, may initiate procedures to exclude the provider from participation in the EEOICPA program. For the purposes of these procedures, “Regional Director” may include any officer designated to act on his or her behalf. § 30.718 How is a provider notified of OWCP's intent to exclude him or her? The Regional Director shall initiate the exclusion process by sending the provider a letter, by certified mail and with return receipt requested, which shall contain the following:
(a)A concise statement of the grounds upon which exclusion shall be based;
(b)A summary of the information, with supporting documentation, upon which the Regional Director has relied in reaching an initial decision that exclusion proceedings should begin;
(c)An invitation to the provider to:
(1)Resign voluntarily from participation in the EEOICPA program without admitting or denying the allegations presented in the letter; or
(2)Request that the decision on exclusion be based upon the existing record and any additional documentary information the provider may wish to furnish;
(d)A notice of the provider's right, in the event of an adverse ruling by the Regional Director, to request a formal hearing before an administrative law judge;
(e)A notice that should the provider fail to answer (as described in § 30.719) the letter of intent within 30 calendar days of receipt, the Regional Director may deem the allegations made therein to be true and may order exclusion of the provider without conducting any further proceedings; and
(f)The name and address of the OWCP representative who shall be responsible for receiving the answer from the provider. § 30.719 What requirements must the provider's reply and OWCP's decision meet?
(a)The provider's answer shall be in writing and shall include an answer to OWCP's invitation to resign voluntarily. If the provider does not offer to resign, he or she shall request that a determination be made upon the existing record and any additional information provided.
(b)Should the provider fail to answer the letter of intent within 30 calendar days of receipt, the Regional Director may deem the allegations made therein to be true and may order exclusion of the provider.
(c)By arrangement with the OWCP representative, the provider may inspect or request copies of information in the record at any time prior to the Regional Director's decision.
(d)The Regional Director shall issue his or her decision in writing, and shall send a copy of the decision to the provider by certified mail, return receipt requested. The decision shall advise the provider of his or her right to request, within 30 days of the date of the adverse decision, a formal hearing before an administrative law judge under the procedures set forth in § 30.720. The filing of a request for a hearing within the time specified shall stay the effectiveness of the decision to exclude. § 30.720 How can an excluded provider request a hearing? A request for a hearing shall be sent to the OWCP representative named pursuant to § 30.718(f) and shall contain:
(a)A concise notice of the issues on which the provider desires to give evidence at the hearing;
(b)Any request for a more definite statement by OWCP;
(c)Any request for the presentation of oral argument or evidence; and
(d)Any request for a certification of questions concerning professional medical standards, medical ethics or medical regulation for an advisory opinion from a competent recognized professional organization or federal, state or local regulatory body. § 30.721 How are hearings assigned and scheduled?
(a)If the designated OWCP representative receives a timely request for hearing, the OWCP representative shall refer the matter to the Chief Administrative Law Judge of the Department of Labor, who shall assign it for an expedited hearing. The administrative law judge assigned to the matter shall consider the request for hearing, act on all requests therein, and issue a Notice of Hearing and Hearing Schedule for the conduct of the hearing. A copy of the hearing notice shall be served on the provider by certified mail, return receipt requested. The Notice of Hearing and Hearing Schedule shall include:
(1)A ruling on each item raised in the request for hearing;
(2)A schedule for the prompt disposition of all preliminary matters, including requests for more definite statements and for the certification of questions to advisory bodies; and
(3)A scheduled hearing date not less than 30 days after the date the schedule is issued, and not less than 15 days after the scheduled conclusion of preliminary matters, provided that the specific time and place of the hearing may be set on 10 days' notice.
(b)The purpose of the designation of issues is to provide for an effective hearing process. The provider is entitled to be heard on any matter placed in issue by his or her response to the Notice of Intent to Exclude, and may designate “all issues” for purposes of hearing. However, a specific designation of issues is required if the provider wishes to interpose affirmative defenses or request the certification of questions for an advisory opinion. § 30.722 How are subpoenas or advisory opinions obtained?
(a)In exclusion proceedings involving medical services provided under Part B of the Act only, the provider may apply to the administrative law judge for the issuance of subpoenas upon a showing of good cause therefore.
(b)A certification of a request for an advisory opinion concerning professional medical standards, medical ethics or medical regulation to a competent recognized or professional organization or federal, state or local regulatory agency may be made:
(1)As to an issue properly designated by the provider, in the sound discretion of the administrative law judge, provided that the request will not unduly delay the proceedings;
(2)By OWCP on its own motion either before or after the institution of proceedings, and the results thereof shall be made available to the provider at the time that proceedings are instituted or, if after the proceedings are instituted, within a reasonable time after receipt. The opinion, if rendered by the organization or agency, is advisory only and not binding on the administrative law judge. § 30.723 How will the administrative law judge conduct the hearing and issue the recommended decision?
(a)To the extent appropriate, proceedings before the administrative law judge shall be governed by 29 CFR part 18.
(b)The administrative law judge shall receive such relevant evidence as may be adduced at the hearing. Evidence shall be presented under oath, orally or in the form of written statements. The administrative law judge shall consider the Notice and Response, including all pertinent documents accompanying them, and may also consider any evidence which refers to the provider or to any claim with respect to which the provider has provided medical services, hospital services, or medical services and supplies, and such other evidence as the administrative law judge may determine to be necessary or useful in evaluating the matter.
(c)All hearings shall be recorded and the original of the complete transcript shall become a permanent part of the official record of the proceedings.
(d)In conjunction with the hearing, the administrative law judge may:
(1)Administer oaths; and
(2)Examine witnesses.
(e)At the conclusion of the hearing, the administrative law judge shall issue a written decision and cause it to be served on all parties to the proceeding, their representatives and OWCP. § 30.724 How can a party request review by OWCP of the administrative law judge's recommended decision?
(a)Any party adversely affected or aggrieved by the decision of the administrative law judge may file a petition for discretionary review with the Director for Energy Employees Occupational Illness Compensation within 30 days after issuance of such decision. The administrative law judge's decision, however, shall be effective on the date issued and shall not be stayed except upon order of the Director.
(b)Review by the Director for Energy Employees Occupational Illness Compensation shall not be a matter of right but of the sound discretion of the Director.
(c)Petitions for discretionary review shall be filed only upon one or more of the following grounds:
(1)A finding or conclusion of material fact is not supported by substantial evidence;
(2)A necessary legal conclusion is erroneous;
(3)The decision is contrary to law or to the duly promulgated rules or decisions of OWCP;
(4)A substantial question of law, policy, or discretion is involved; or
(5)A prejudicial error of procedure was committed.
(d)Each issue shall be separately numbered and plainly and concisely stated, and shall be supported by detailed citations to the record when assignments of error are based on the record, and by statutes, regulations or principal authorities relied upon. Except for good cause shown, no assignment of error by any party shall rely on any question of fact or law upon which the administrative law judge had not been afforded an opportunity to pass.
(e)A statement in opposition to the petition for discretionary review may be filed, but such filing shall in no way delay action on the petition.
(f)If a petition is granted, review shall be limited to the questions raised by the petition.
(g)A petition not granted within 20 days after receipt of the petition is deemed denied. § 30.725 What are the effects of non-automatic exclusion?
(a)OWCP shall give notice of the exclusion of a physician, hospital or provider of medical services or supplies to:
(1)All OWCP district offices;
(2)CMS; and
(3)All employees who are known to have had treatment, services or supplies from the excluded provider within the six-month period immediately preceding the order of exclusion.
(b)Notwithstanding any exclusion of a physician, hospital, or provider of medical services or supplies under this subpart, OWCP shall not refuse an employee reimbursement for any otherwise reimbursable medical treatment, service or supply if:
(1)Such treatment, service or supply was rendered in an emergency by an excluded physician; or
(2)The employee could not reasonably have been expected to know of such exclusion.
(c)An employee who is notified that his or her attending physician has been excluded shall have a new right to select a qualified physician. § 30.726 How can an excluded provider be reinstated?
(a)If a physician, hospital, or provider of medical services or supplies has been automatically excluded pursuant to § 30.716, the provider excluded will automatically be reinstated upon notice to OWCP that the conviction or exclusion which formed the basis of the automatic exclusion has been reversed or withdrawn. However, an automatic reinstatement shall not preclude OWCP from instituting exclusion proceedings based upon the underlying facts of the matter.
(b)A physician, hospital, or provider of medical services or supplies excluded from participation as a result of an order issued pursuant to this subpart may apply for reinstatement one year after the entry of the order of exclusion, unless the order expressly provides for a shorter period. An application for reinstatement shall be addressed to the Director for Energy Employees Occupational Illness Compensation, and shall contain a concise statement of the basis for the application. The application should be accompanied by supporting documents and affidavits.
(c)A request for reinstatement may be accompanied by a request for oral argument. Oral argument will be allowed only in unusual circumstances where it will materially aid the decision process.
(d)The Director for Energy Employees Occupational Illness Compensation shall order reinstatement only in instances where such reinstatement is clearly consistent with the goal of this subpart to protect the EEOICPA program against fraud and abuse. To satisfy this requirement the provider must provide reasonable assurances that the basis for the exclusion will not be repeated. Subpart I—Wage-Loss Determinations Under Part E of EEOICPA General Provisions § 30.800 What types of wage-loss are compensable under Part E of EEOICPA? Years of wage-loss occurring prior to normal retirement age that are the result of a covered illness contracted by a covered Part E employee through work-related exposure to a toxic substance at a Department of Energy facility or a RECA section 5 facility, as appropriate, may be compensable under Part E of the Act. Whether years of wage-loss are compensable depends on determinations with respect to:
(a)The average annual wage of the employee as determined by OWCP in accordance with § 30.810;
(b)The percentage of his or her average annual wage that the employee was able to earn during the calendar year(s) in question as determined by OWCP in accordance with § 30.811; and
(c)Whether the employee's inability to earn at least as much as his or her average annual wage was due to a covered illness as defined in § 30.5(r). § 30.801 What special definitions does OWCP use in connection with Part E wage-loss determinations? For the purposes of paying compensation based on wage-loss under Part E of the Act, OWCP will apply the following definitions:
(a)*Average annual wage* means four times the average quarterly wages of a covered Part E employee for the 12 quarters preceding the quarter during which he or she first experienced wage-loss due to exposure to a toxic substance at a DOE facility or RECA section 5 facility, excluding any quarters during which the employee was unemployed. Because being “retired” is not equivalent to being “unemployed,” quarters during which an employee had no wages because he or she was retired will not be excluded from this calculation.
(b)*Normal retirement age* means the age at which a covered Part E employee first became eligible for unreduced retirement benefits under the Old-Age, Survivors and Disability Insurance (OASDI) provisions of the Social Security Act. In general, persons born during or before 1937 are eligible for unreduced OASDI retirement benefits at age 65, and that age increases in monthly increments until it reaches 67, which is the age at which persons born during or after 1960 become eligible for unreduced OASDI retirement benefits.
(c)*Quarter* means the three-month period January through March, April through June, July through September, or October through December.
(d)*Quarter during which the employee was unemployed* means any quarter during which the covered Part E employee had $700 (in constant 2005 dollars) or less in wages unless the quarter is one during which the employee was retired.
(e)*Year of wage-loss* means a calendar year during which the covered Part E employee's earnings were less than his or her average annual wage, after such earnings have been adjusted using the Consumer Price Index for All Urban Consumers (CPI-U), as produced by the Bureau of Labor Statistics, to reflect their value in the year during which the employee first experienced wage-loss due to exposure to a toxic substance at a DOE facility or RECA section 5 facility. Evidence of Wage-Loss § 30.805 What evidence does OWCP use to determine a covered Part E employee's average annual wage and whether he or she experienced compensable wage-loss under Part E of EEOICPA?
(a)OWCP may rely on quarterly wages information reported to the Social Security Administration to establish a covered Part E employee's presumed average annual wage (see § 30.810) and the duration and extent of any years of wage-loss that are compensable under Part E of the Act (see § 30.811). OWCP may also rely on other probative evidence of a covered Part E employee's wages, and may ask the claimant for additional evidence necessary to make this determination, if necessary. For the purposes of making these two types of determinations, OWCP will consider all monetary payments that the covered Part E employee received in a quarter from employment or services, except for monetary payments that were not taxable as income during that quarter under the Internal Revenue Code, to be “wages.”
(b)OWCP also requires the submission of rationalized medical evidence of sufficient probative value to establish that the period of wage-loss at issue is causally related to the covered Part E employee's covered illness. § 30.806 May a claimant submit factual evidence in support of a different determination of average annual wage and/or wage-loss than that found by OWCP? A claimant who disagrees with the evidence OWCP has obtained under § 30.805(a) and alleges a different average annual wage for the covered Part E employee, or that there was a greater duration or extent of wage-loss, may submit records that were produced in the ordinary course of business due to the employee's employment to rebut that evidence, to the extent that such records are determined to be authentic by OWCP by a preponderance of the evidence. The average annual wage and/or wage-loss of the covered Part E employee will then be determined by OWCP in the exercise of its discretion. Determinations of Average Annual Wage and Percentages of Loss § 30.810 How will OWCP calculate the average annual wage of a covered Part E employee? To calculate the average annual wage of a covered Part E employee as defined in § 30.801(a), OWCP will:
(a)Aggregate the wages for the twelve quarters that preceded the quarter during which the covered Part E employee first experienced wage-loss due to exposure to a toxic substance at a DOE facility or a RECA section 5 facility, excluding any quarter during which the employee was unemployed;
(b)Add any additional wages earned by the employee during those same quarters as evidenced by records described in §§ 30.805(a) and 30.806;
(c)Divide the sum of paragraphs
(a)and
(b)of this section by 12 less the number of quarters during which the employee was unemployed; and
(d)Multiply this figure by four to calculate the covered Part E employee's average annual wage. § 30.811 How will OWCP calculate the duration and extent of a covered Part E employee's initial period of compensable wage-loss?
(a)To determine the initial calendar years of wage-loss, OWCP will use the evidence it receives under §§ 30.805 and 30.806 to determine the quarter in which a covered Part E employee first sustained wage-loss due to exposure to a toxic substance while engaged in employment at a DOE facility or a RECA section 5 facility, as appropriate.
(b)OWCP will then compare the calendar-year wages for that employee, as adjusted, with the average annual wage determined under § 30.810 for each calendar year beginning with the calendar year that includes the quarter in which the wage-loss commenced, and concluding with the last calendar year of wage-loss prior to the submission of the claim or the calendar year in which the employee reached normal retirement age (as defined in § 30.801(b)), whichever occurred first.
(c)OWCP will then aggregate separately the number of calendar years of wage-loss in which the employee's wages, as adjusted, did not exceed 50 percent of the average annual wage determined under § 30.810, and the number of calendar years of wage-loss in which the employee's wages, as adjusted, exceeded 50 percent of such average annual wage, but did not exceed 75 percent of such average annual wage.
(d)For each calendar year of wage-loss determined under paragraph
(c)of this section during which the employee's wages did not exceed 50 percent of his or her average annual wage, OWCP will pay the employee $15,000 as compensation for wage-loss. For each calendar year of wage-loss determined under paragraph
(c)of this section during which the employee's calendar-year wages exceeded 50 percent of his or her average annual wage but did not exceed 75 percent of such average annual wage, OWCP will pay the employee $10,000 as compensation for wage-loss. § 30.812 May a covered Part E employee claim for subsequent periods of compensable wage-loss? A covered Part E employee previously awarded compensation for wage-loss under § 30.811 may file for additional compensation for wage-loss suffered by the employee during periods subsequent to a period for which a wage-loss claim for the employee has already been adjudicated by OWCP. However, no compensation for wage-loss shall be awarded for any period following the year during which the covered Part E employee attained normal retirement age for purposes of the Social Security Act as described in § 30.801(b). Special Rules for Certain Survivor Claims Under Part E of EEOICPA § 30.815 Are there special rules that OWCP will use to determine the extent of a deceased covered Part E employee's compensable wage-loss?
(a)For purposes of adjudicating a claim of a survivor of a deceased covered Part E employee only, OWCP will presume that such employee experienced wage-loss for each calendar year subsequent to the calendar year of his or her death through and including the calendar year in which the employee would have reached normal retirement age under the Social Security Act. During these particular calendar years, OWCP will also presume that the deceased covered Part E employee's subsequent calendar-year wages did not exceed 50 percent of his or her average annual wage as determined under § 30.810.
(b)Except as provided in paragraph
(a)of this section, OWCP will calculate the wage-loss of a deceased covered Part E employee in conformance with the provisions of §§ 30.800 through 30.811.
(c)If OWCP determines that a deceased covered Part E employee had an aggregate of not less than ten calendar years of adjusted earnings that did not exceed 50 percent of his or her average annual earnings, it will pay the eligible surviving beneficiary(s) additional compensation (the basic survivor award payable under section 7385s-3(a)(1) is $125,000) in the amount of $25,000 pursuant to section 7385s-3(a)(2) of the Act. In the alternative, if OWCP determines that the aggregate number of such years is not less than 20 years, it will pay the eligible surviving beneficiary(s) additional compensation in the amount of $50,000 pursuant to section 7385s-3(a)(3). Subpart J—Impairment Benefits Under Part E of EEOICPA General Provisions § 30.900 Who can receive impairment benefits under Part E? In order to receive impairment benefits under Part E, the employee must show that:
(a)He or she is a covered Part E employee who has been determined to have contracted a covered illness through exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as appropriate, pursuant to either §§ 30.210 through 30.215 or §§ 30.230 through 30.232 of these regulations; and
(b)He or she has been determined to have an impairment, pursuant to the regulations set out in this subpart, that is the result of the covered illness referred to in paragraph
(a)of this section. § 30.901 How does OWCP determine the extent of an employee's impairment that is due to a covered illness contracted through exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as appropriate?
(a)OWCP will determine the amount of impairment benefits to which an employee is entitled based on one or more impairment evaluations submitted by physicians. An impairment evaluation shall contain the physician's opinion on the extent of whole person impairment of all organs and body functions of the employee that are compromised or otherwise affected by the employee's covered illness or illnesses, which shall be referred to as a “minimum impairment rating.”
(b)The minimum impairment rating shall be determined in accordance with the current edition of the American Medical Association's *Guides to the Evaluation of Permanent Impairment* (AMA's *Guides* ). In making impairment benefit determinations, OWCP will only consider medical reports from physicians who are certified by the relevant medical board and who satisfy any additional criteria determined by OWCP to be necessary to qualify to perform impairment evaluations under Part E, including any specific training in use of the AMA's *Guides* , specific training and experience related to particular conditions and other objective factors.
(c)OWCP will establish criteria based upon objective factors such as training and certification that must be met by physicians preparing impairment evaluations in order for an impairment evaluation to be considered in determining an impairment award. Such criteria shall be made available to claimants and the public by OWCP. § 30.902 How will OWCP calculate the amount of the award of impairment benefits that is payable under Part E? OWCP will multiply the percentage points of the minimum impairment rating by $2,500 to calculate the amount of the award. Medical Evidence of Impairment § 30.905 How may an impairment evaluation be obtained?
(a)Except as provided in paragraph
(b)of this section, OWCP may request that an employee undergo an evaluation of his or her permanent impairment that specifies the percentage points that are the result of the employee's covered illness or illnesses. To be of any probative value, such evaluation must be performed by a physician who meets the criteria OWCP has identified for physicians performing impairment evaluations for the pertinent covered illness or illnesses in accordance with the AMA's *Guides.*
(b)In lieu of submitting an evaluation requested by OWCP under paragraph
(a)of this section, an employee may obtain an impairment evaluation at his own initiative and submit it to OWCP for consideration. Such an evaluation will be deemed to have sufficient probative value to be considered in the adjudication of impairment benefits by OWCP only if:
(1)The evaluation was performed by a physician who meets the criteria identified by OWCP for the covered illness or illnesses in question;
(2)The evaluation was performed no more than one year before the date that it was received by OWCP; and
(3)The evaluation conforms to all applicable requirements set out in this part. § 30.906 Who will pay for an impairment evaluation?
(a)OWCP will pay for one impairment evaluation obtained by an employee if it meets the criteria set out in § 30.905(b), unless it was performed by a physician prior to the date that the claim for Part E benefits is filed, or obtained for a claim in which OWCP finds that the employee did not contract a covered illness. At its discretion, OWCP may direct that the employee undergo additional evaluations. OWCP will pay for any such additional evaluations and will reimburse the employee for any reasonable and necessary costs incident to the evaluations, as described in §§ 30.404 and 30.412 of this part.
(b)Except for one impairment evaluation obtained pursuant to § 30.905(b) and meeting the criteria set out in § 30.905(b)(1),
(2)and (3), the employee must pay for any impairment evaluations not directed by OWCP. § 30.907 Can an impairment evaluation obtained by OWCP be challenged prior to issuance of the recommended decision?
(a)An employee may submit arguments challenging an impairment evaluation, and/or additional medical evidence of impairment, before the district office issues a recommended decision on his or her claim. However, the district office will not consider an additional impairment evaluation, even if it differs from the impairment evaluation obtained under §§ 30.905 or 30.906, if it does not meet the criteria listed in § 30.905(b)(1),
(2)and (3).
(b)If the district office obtains an additional impairment evaluation that differs from the impairment evaluation obtained under §§ 30.905 or 30.906, the district office will base its recommended determinations regarding impairment upon the evidence it considers to have the greatest probative value, after evaluating all relevant evidence of impairment in the record, including evidence from directed impairment evaluations and referee impairment evaluations, if any, that it deems necessary pursuant to §§ 30.410 and 30.411 of this part. § 30.908 How will the FAB evaluate new medical evidence submitted to challenge the impairment determination in the recommended decision?
(a)If an employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will not consider the additional impairment evaluation if it does not meet the criteria listed in § 30.905(b)(1),
(2)and (3).
(b)The employee shall bear the burden of proving that the additional impairment evaluation submitted is more probative than the evaluation relied upon by the district office to determine the employee's recommended minimum impairment rating.
(c)If an employee submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will review all relevant evidence of impairment in the record, and will base its determinations regarding impairment upon the evidence it considers to be most probative. The FAB will determine the minimum impairment rating after it has evaluated all relevant evidence and argument in the record. Ratable Impairments § 30.910 Will an impairment that cannot be assigned a numerical percentage using the AMA's Guides be included in the impairment rating?
(a)An impairment of an organ or body function that cannot be assigned a numerical impairment percentage using the AMA's *Guides* will not be included in the employee's impairment rating.
(b)A mental impairment that does not originate from a documented physical dysfunction of the nervous system, and cannot be assigned a numerical percentage using the AMA's *Guides* , will not be included in the impairment rating for the employee. Mental impairments that are due to documented physical dysfunctions of the nervous system can be assigned numerical percentages using the AMA's *Guides* and will be included in the rating. § 30.911 Does maximum medical improvement always have to be reached for an impairment to be included in the impairment rating?
(a)An impairment that is the result of a covered illness will be included in the employee's impairment rating determined by OWCP under § 30.901 only if OWCP concludes that the impairment has reached maximum medical improvement, which means that it is well-stabilized and unlikely to improve substantially with or without medical treatment.
(b)Notwithstanding paragraph
(a)of this section, if OWCP finds that an employee's covered illness is in the terminal stages, based upon probative medical evidence, an impairment that results from such covered illness will be included in the impairment rating for the employee even if it has not reached maximum medical improvement. § 30.912 Can a covered Part E employee receive benefits for additional impairment following an award of such benefits by OWCP? A covered Part E employee previously awarded impairment benefits by OWCP may file a claim for additional impairment benefits. Such claim must be based on an increase in the impairment rating that is the result of the covered illness or illnesses from the impairment rating that formed the basis for the last award of such benefits by OWCP. OWCP will only adjudicate claims for such an increased rating that are filed at least two years from the date of the last award of impairment benefits. However, OWCP will not wait two years before it will adjudicate a claim for additional impairment that is based on an allegation that the employee sustained a new covered illness. Signed at Washington, DC, this 15th day of December, 2006. Victoria A. Lipnic, Assistant Secretary of Labor for Employment Standards. Signed at Washington, DC, this 15th day of December, 2006. Shelby Hallmark, Director, Office of Workers' Compensation Programs, Employment Standards Administration. [FR Doc. E6-21839 Filed 12-28-06; 8:45 am] BILLING CODE 4510-CR-P 71 250 Friday, December 29, 2006 Rules and Regulations Part III Susquehanna River Basin Commission 18 CFR Parts 803, 804, 805 et al. Review and Approval of Projects; Special Regulations and Standards; Hearings and Enforcement Actions; Final Rule SUSQUEHANNA RIVER BASIN COMMISSION 18 CFR Parts 803, 804, 805, 806, 807 and 808 Review and Approval of Projects; Special Regulations and Standards; Hearings and Enforcement Actions AGENCY: Susquehanna River Basin Commission (SRBC). ACTION: Final rule. SUMMARY: This document contains amendments to the SRBC's project review regulations currently published at 18 CFR Parts 803, 804 and 805. The regulations provide the procedural and substantive rules for SRBC review and approval of water resources projects and the procedures governing hearings and enforcement actions. These amendments include additional due process safeguards, add new standards for projects, improve organizational structure, incorporate recently adopted policies and clarify language. The amendments were first proposed on July 7, 2006 in the **Federal Register** , Vol. 71, No. 130, p. 38692. Comments received on the proposed rule making are summarized with accompanying responses in the “ Supplementary Information ” section below. Changes were made to the proposed rules in the final rule making in response to these comments, including the “removal and reservation” of Parts 803, 804 and 805 and the substitution therefore in this final rule making action of Parts 806, 807 and 808, respectively. DATES: These rules shall be effective January 1, 2007. ADDRESSES: Susquehanna River Basin Commission, 1721 N. Front Street, Harrisburg, PA 17102-2391. FOR FURTHER INFORMATION CONTACT: Richard A. Cairo, General Counsel, 717-238-0423; Fax: 717-238-2436; e-mail: *rcairo@srbc.net.* Also, for further information on the final rule making action, visit the Commission's Web site at *http://www.srbc.net.* SUPPLEMENTARY INFORMATION: Background The SRBC proposed rules amending its “Regulations and Procedures for the Review of Projects” presently found at 18 CFR Parts 803, 804 and 805, which were published on July 7, 2006 in the FR, Vol. 71, No. 130, p. 38692. Those rules establish:
(1)The scope and procedures for review and approval of projects under Section 3.10 of the Susquehanna River Basin Compact, Pub. L. 91-575; 83 Stat. 1509 *et seq.* (the compact);
(2)special standards under Section 3.4(2) of the compact governing water withdrawals and consumptive use of water; and
(3)procedures for hearings and enforcement actions. The SRBC received numerous comments on the proposed rule making action, which are summarized below with an accompanying response to each. The SRBC made a number of adjustments and changes to the proposed rules in this final rule making action in response to those comments. One change that should be noted is the removal and reservation of 18 CFR Parts 803, 804 and 805, and the substitution therefore in this final rule making action of Parts 806, 807 and 808 respectively. The contents that appeared in Parts 803, 804 and 805 of the proposed rule making now appear in Parts 806, 807 and 808 respectively; hence, this is not an enlargement of the purposes of the proposed rule making, but simply an editorial change in response to a comment that SRBC received pointing to the possible confusion of retaining the same numbering system for the revised regulations. Comments received on the proposed rule making referred to the numbering system as published, namely Parts 803, 804 and 805, and comments and responses set forth below follow that same construction, even though now superseded by Parts 806, 807 and 808, respectively. General Comments *Comment:* Revisions will strengthen and streamline SRBC project review regulations. *Response:* The Commission agrees that the revisions will strengthen and streamline its regulatory program. *Comment:* SRBC proposed regulations should more strongly emphasize the importance of economic development in its statement of purposes and in the criteria on which an approval will be granted or denied. SRBC should attempt to more carefully balance the economic benefits of a project versus other interests such as the environment. Tools should be developed for analyzing the “harms” of a project versus its “benefits.” If there are only minor environmental impacts and great economic benefits, projects should be approved. *Response:* The Commission believes that there are already sufficient references to the purposes of economic development in both the Susquehanna River Basin Compact (the “compact”) and the project review regulations. The Commission, in its review process, does take into consideration the economic development aspects of a project and works with project sponsors to help them use water resources in a way that will enhance economic growth while avoiding conflicts with other users.. *Comment:* SRBC should explore the use of free market tools such as credits and trading for compliance with its regulations. *Response:* The Commission considers that tools such as credits and trading for compliance with regulations are probably more applicable to water quality regulations than to water quantity regulations of the type administered by the Commission. Nevertheless, an element of free market tools is already incorporated in the proposed regulation Section 803.22 (“Standards for consumptive uses of water”), in that project sponsors are allowed a wide choice of mitigation methods, including the free market acquisition of water for flow augmentation. *Comment:* In several instances, the Commission is writing authority into the regulations that does not exist under the compact. For example, Article 11 of the compact pertaining to protected areas is the only section that mentions any authority for approval of withdrawals. Also, there is no compact authority for other items in the regulations such as cease and desist orders and the issuance of subpoenas. Many other examples are cited. *Response:* This comment reads the terms of the compact far too narrowly and fails to consider other broad grants of power given to the Commission to manage the river basin's water resources. For example, Section 3.5(4) of the compact states that the Commission “shall assume jurisdiction in any matter affecting water resources whenever it determines * * * that the effectuation of the comprehensive plan or the implementation of the compact so requires.” Also, Section 3.4(9) states that the Commission “may have and exercise all powers necessary or convenient to carry out its express powers and other powers which reasonably may be implied therefrom.” Finally, Section 3.10(2) of the compact makes it clear that the Commission's power to approve projects is not limited. *Comment:* SRBC has seemingly unlimited authority to arbitrarily impose enforcement action and prescribe remedies, and is not responsible or accountable to its basin-constituent population or economic interests. *Response:* Like any other government agency, the Commission does not operate without limits imposed by the compact, the Constitution, and laws of the United States. Also, the Commission is directly responsible to its member jurisdictions, each of which is represented on the Commission. *Comment:* The proposed regulations should have been presented in a redline/black-line format that shows changes along side of current regulations. Old regulation sections from which regulations were moved or deleted should have been “reserved” instead of reused with new regulatory material because existing policies that refer to these same sections will no longer be accurate and could lead to confusion among those persons reviewing those policies. *Response:* These revised regulations represent a complex overhaul of the current Commission regulations that involved the wholesale reorganization of the existing sections, the extensive revision of existing sections, and the addition of whole new sections. Such changes cannot be effectively placed in redline/black-line, side-by-side format without creating even more confusion for a reviewer attempting to review the disjointed mixture of moving text, additions, and deletions. It was therefore decided that the proposed revisions would be presented as an entirely new package of regulations and that the major changes would be described section by section in the preamble of the proposed rulemaking action. Most policies were incorporated into the body of the regulations, which will provide clarity for the regulated community and others. References to sections of the regulations that are no longer accurate will be revised accordingly. Also, with regard to “reserving” old sections of the regulations, the Commission has decided that, as part of its final rulemaking action, it will “remove and reserve” Parts 803, 804 and 805 and replace those Parts respectively with new Parts 806, 807 and 808. This is being done in accordance with **Federal Register** guidelines. All references in this Comment and Response document will reference section numbers as originally proposed (i.e., Parts 803, 804, and 805). *Comment:* The new policies, procedures, and regulations implemented by the Commission over the last six years have already imposed significant administrative burdens on the regulated community. Some in the regulated community are now concerned that these new regulations will impose even more burdens that will adversely affect the economic vitality of the basin and drive investors to basins with a friendlier regulatory environment. *Response:* The Commission acknowledges that compliance with Commission regulations does place certain short-term administrative and financial obligations upon the regulated community. However, the long-term benefits of Commission management and protection of a critical resource must also be considered. Project sponsors and other water users receive certain protections related to their water use that extend far beyond the protections afforded by the common law. Furthermore, the incorporation of policies and overall refinement of the regulations are intended to foster sustainable use of the resource over the term of an approval, even through times of drought. As such, some of the rigor complained about affords protection to existing uses, including economic uses, and allows for responsible economic development in the basin. *Comment:* SRBC should establish a more integrated project approval process that directly considers the impacts of a project in terms of both water quantity and quality, and facilitates implementation of statewide water quality programs and mandates, including the Chesapeake Bay Tributary Strategies program, the anti-degradation program and the TMDL program. *Response:* The member jurisdictions continue to maintain primary jurisdiction for regulating water quality pursuant to federal regulations under the Clean Water Act. In order to avoid duplication, the Commission focuses its review on water quantity while considering the impacts of a project on water quality, primarily through integrated, extensive coordination with agencies of its member jurisdictions. *Comment:* SRBC should encourage “smart growth” communities that cluster development and have less impact on the environment. SRBC, by increasing regulatory thresholds, eliminating transferability of approvals, shortening amortization times and generally creating uncertainty about future water rights, would seem to promote sprawl by encouraging large lot development with individual wells to avoid SRBC regulation. *Response:* The Commission rejects the notion that this set of revised regulations will somehow discourage clustered development and create uncertainty about future water rights. If anything, these strengthened regulations improve the Commission's ability to effectively manage the water resources of the basin, and will reinforce certainty about future water supplies by assuring users that they are drawing on reliable sources of water that will not be subject to conflict or interference with other users. It also acknowledges that land use decisions are made at the local level in all of its member jurisdictions. Comments by Section, Part 803 Section 803.1 Scope *Comment:* Decisions made by the Commission should reference the section of the comprehensive plan that is relied upon. *Response:* Docket approvals presently do reference the project's compliance with the terms of the comprehensive plan, but a reference to a single section of the comprehensive plan would be too limiting in most cases. Section 803.2 Purposes *Comment:* The reference to economic development should be strengthened by stating that it is a purpose of the regulations to promote economic development and financial investment. It was further suggested that the purposes section should acknowledge the water-related dependency of many large and small commercial, industrial, and mining industries in the basin. Finally, the words “and control” should be deleted from Section 803.2(a)(2). *Response:* Again, the Commission feels that the existing reference to economic development in this section is sufficient. The Commission also promotes economic stability and certainty by protecting the sources of water that all such activities depend on for their use and development. The Commission protects more than just the environment; the Commission heads off conflicts between users and helps users maintain reliable sources of water. The word “control” comes directly from the purposes section of the Susquehanna River Basin Compact and cannot be removed or deleted. Section 803.3 Definitions *Comment:* Revise the “groundwater” definition to indicate that “groundwater * * * includes that water contained in quarries, pits and underground mines not originating directly from surface water inflow (runoff).” Also add that the term groundwater * * * “includes water derived from a spring by pumping or other means of drainage which reduces or eliminates the surface flow.” *Response:* The definition has been modified to include “or other means of drainage.” The Commission does not consider the addition of the other suggested wording to be necessary. *Comment:* The last sentence in the “groundwater” definition is confusing and, when read in conjunction with the “surface water” definition, may exclude ground or surface water that is intended to be included. *Response:* Agreed. Additional language contained in the current definition has been reinserted to clarify the definition. *Comment:* The “surface water” definition uses the term “surface of the earth,” while the “groundwater” definition uses the term “surface of the ground.” *Response:* Agreed. The term has been changed to “surface of the ground.” *Comment:* There is a need to define the term “undertake” to make clear what constitutes the commencement of a project requiring approval under Section 803.4, and, to insure that mere site preparation such as clearing and grubbing are not included under the definition, a definition of “construction” should also be included. *Response:* Agreed. New definitions have been included for the term “undertake” and for the term “construction.” The definition of construction insures that mere site preparation activity will not be included under the definition of “undertake”. Combined, these definitions clarify what activity is subject to prior review and approval. *Comment:* Revise the “project” definition because it is confusing and ambiguous. *Response:* This definition utilizes wording taken directly from the Susquehanna River Basin Compact. *Comment:* Revise the “pre-compact consumptive use” definition by adding the following words after the date “January 23, 1971”: “established on the basis of credible documentation.” *Response:* The Commission does not consider the suggested language to be necessary. All such determinations are already made on the basis of credible documentation evaluated by Commission staff. *Comment:* Revise the “water resources” definition to remove the term “and related natural resources” because it is unclear what these “related natural resources” are. *Response:* This definition utilizes wording taken directly from the Susquehanna River Basin Compact. *Comment:* Restore the use of the words “for use” in the “withdrawal” definition. *Response:* The Commission agrees to restore the words “for use in the basin.” Section 803.4 Projects Requiring Review and Approval *Comment:* The proposal to require a new review and approval by the Commission after a change of ownership of a project will substantially complicate and hinder the transfer of projects and therefore reduce the attractiveness of investments in projects in the basin. Frequent corporate changes, reorganizations, and mergers are common in the energy industry today. Requiring a new docket application for each such event would be administratively unwieldy, reduce predictability, and will add unnecessary risk for anyone willing to sponsor a project. *Comment:* Requiring approvals upon change of ownership of a project may also discourage water companies from taking over smaller, inadequate systems due to the uncertainties created regarding the new quantities of water that will be available under a reissued approval. Furthermore, there does not appear to be a need to require that full project reviews be performed when there is a change of ownership of a project unless there is a change in conditions that really warrants such a full review. *Comment:* The Commission should consider some way of preliminarily evaluating whether there has been such a change before requiring submission of a new application by transferees or simply reopening the docket under its reopening authority. Also, the Commission may want to focus on the ability of a transferee to comply with the existing approval. Yet another suggestion is for the Commission to require the submission of a notice of a change of ownership prior to the transfer, together with a transfer fee. This would enable the Commission to stay fully informed about which entities hold approvals, facilitate enforcement of any limitations or conditions, and offset the Commission's processing and administrative costs. *Response:* The Commission has added new paragraph
(b)that lists categories of projects that are exempt from the requirement for Commission approval upon a change of ownership. These exemptions were originally contained in the “change of ownership” definition and have been relocated to this section. The Commission has also added new paragraph
(c)that allows projects not otherwise exempt under paragraph (b), to be undertaken by a new project sponsor (the transferee) upon a change of ownership pending action by the Commission on an application submitted by such new project sponsor requesting review and approval of the project. Both paragraphs
(b)and
(c)relate to projects that did not require Commission approval prior to January 1, 2007. *Comment:* New owners should be required to seek approval of their water consumption and have full accountability for compliance with the terms for approval. *Response:* Subject to the exceptions noted in our response above, the Commission agrees. *Comment:* The Commission should not end the grandfathering of consumptive uses existing prior to January 23, 1971. The Commission has not provided a good reason to end this practice that has been a part of the Commission's regulations since their inception, and which project sponsors have come to rely on. *Comment:* The intention of grandfathering is to protect the expectations of the person, but not the project. The proposed limitation on grandfathering does not affect the reasonable expectations of any person who is the current owner. Ending grandfathering assures fair implementation of the regulations. Exemptions provided to ag and family transfers should be continued indefinitely. *Response:* The rationale for gradually retiring grandfathered benefits upon the transfer of ownership of a project is that, with few exceptions, such portions of the basin's water resources should not be allowed to continue indefinitely into the future unmanaged. Under the compact, the Commission is responsible for the comprehensive management of all of the basin's resources. While it was reasonable to allow those who possess grandfathered benefits to continue their use of them, the unfettered transfer of them to subsequent purchasers effectively creates a situation of prior appropriation. *Comment:* The federal reservations to the Susquehanna River Basin Compact specifically prohibit the Commission from charging for pre-compact uses of water under Section 3.9 of the compact. Section 3.9 only allows the Commission to charge for use of its facilities or its services. Waters consumptively used are not a product of the Commission facilities or services, but are produced by the streams and rivers owned by the individual states. There is no basis for charging these projects a fee. Finally, grandfathered amounts encourage water conservation. *Response:* The fees paid by consumptive users are not made under the authority of Section 3.9 of the compact and are therefore not subject to the federal reservations regarding charges under Section 3.9 of the compact. Instead, these fees are just one of several means of compliance with the consumptive use regulation that a project sponsor can employ. The Commission places the proceeds of such charges into a special water management fund where they are used to purchase storage for release during low flow and to implement other measures to mitigate the effects of consumptive water use. Project sponsors are free to propose other means of mitigation. *Comment:* Section 803.4(a)(4) requiring approval of any consumptive use that adversely affects purposes outlined in Section 803.2 is overly broad and too vague to effectuate compliance because it provides no quantitative or qualitative benchmarks. *Response:* Agreed that this paragraph may be overly broad in scope. This paragraph has therefore been stricken. *Comment:* In
(a)Consumptive use of water, and
(b)Withdrawals, change the reference to Section 803.12 to Section 803.13. *Response:* Agreed. This cross-reference was incorrect and has been changed. *Comment:* The proposal to regulate combined surface and groundwater withdrawals of 100,000 gpd or greater brings more withdrawals under review and approval, and better enables the Commission to ensure that substantial withdrawals do not compromise basin water resources. *Response:* The Commission strongly agrees. *Comment:* Combining groundwater and surface water to reach the withdrawal threshold of 100,000 gpd opens the regulatory process to include both when only one may be increased. Approval thresholds should remain separate. *Response:* The Commission strongly believes that the hydrologic link between surface and groundwater justifies combining surface and groundwater withdrawals under one regulation that can consider and manage their mutual impacts. This conforms to the comprehensive management principles set forth in the compact. *Comment:* The combined surface and groundwater requirement will force applicants to file two applications and pay two application fees. *Response:* The proposed regulation does not have the effect referenced in the comment. If finally adopted, the Commission intends to institute a new application system for withdrawals and intends to modify its fee schedule to accommodate combined withdrawals. *Comment:* The Commission should exempt the first 20,000 gallons per day
(gpd)of an into-basin diversion as it has exempted the first 20,000 gpd of an out-of-basin diversion. *Response:* The Commission does not agree that into-basin diversions should also be exempted up to 20,000 gpd. Regardless of quantity, the Commission wishes to insure that only water of good quality or properly treated water is being diverted into the Susquehanna River Basin. Rather than grant a blank exemption, the Commission will consider the possibility of a future “administrative agreement” or other informal arrangement with member states to accept their review and approval of a discharge into the basin (diversion) as an approval by the Commission. *Comment:* Diversions should only be approved when the applicant demonstrates the clear need and a lack of alternatives. *Response:* The Commission feels that the new regulation, which incorporates the Commission's out-of-basin diversion policy, adequately covers these criteria with respect to out-of-basin diversions. *Comment:* There are no substantive criteria in 803.4(g) to establish a threshold as to when “other projects” may be required to submit an application. *Response:* This paragraph is in conformance with Section 3.10(3) of the compact that grants the Commission and the member jurisdictions the broad authority to identify other projects that require Commission approval. Section 803.5 Projects That May Require Review and Approval *Comment:* With respect to (a), terms used such as “affect interstate water quality or interstate waters” and “significant effect” are too vague and do not sufficiently establish a quantitative standard. There is no requirement to identify which part of the comprehensive plan is adversely affected and therefore there is no way for an applicant to determine this. *Response:* This is language that simply restates and is consistent with the language of the compact, Section 3.10. A project sponsor whose project affects the comprehensive plan would be informed about which part of the plan is so affected when it is notified in writing by the Executive Director under Section 803.4 (g). *Comment:* With respect to (b), there should be a “pre-determination notice” procedure that would afford a project sponsor the opportunity to supplement information, discussion, and technical interaction before a determination is made by the Executive Director. *Response:* If the Executive Director is called upon to make a determination, he/she will notify the project sponsor to submit such information prior to a determination. This will be part of the due process automatically afforded a project sponsor and there is no need to provide for it separately in the regulation. Section 803.6 Transferability of Project Approvals *Comment:* Support expressed for limited classes of transfers. *Comment:* The proposed language should be eliminated for the same reasons given under the comments submitted on Section 803.4. regarding “change of ownership” and the existing rule regarding transfers should be retained. Essentially, restrictions on the transfer of Commission approvals create the same burdens on the regulated community as described in the comments on Section 803.4 above. *Response:* This section has been extensively revised to now generally permit the transfer of project approvals. All transfers would require advance notification and certification to comply with all terms and conditions of the transferred approval. Transfers qualifying under new paragraph
(b)can be made automatically without further Commission action. Transfers qualifying under new paragraph
(c)can be made conditionally with a subsequent application to the Commission within 90 days from the transfer requesting review and approval of previously unapproved aspect of the project. Transfers qualifying under new paragraph
(d)can also be made conditionally with a subsequent application to the Commission within 90 days from the transfer requesting review and approval of the entire project. Section 803.7 Concurrent Project Review by Member Jurisdictions *Comment:* Insert the words “to avoid delays” after the words “to avoid duplication of work.” All reviews should be carried on in parallel with other agencies so as to avoid any delays in the review process. *Response:* The suggested language is seen as unnecessary since it is the express purpose of the section. *Comment:* Substitute the words “appropriate administrative agreements” or “informal arrangements” for “agreements of understanding” and “agreements” to be consistent with Section 804.3. *Response:* Agreed. Section 803.8 Waiver/Modification *Comment:* The “modify” portion of this section gives the Commission too much discretion to actually change the requirements of a regulation that has already been promulgated. Therefore, the references to “modification” and “modify” in this section should be deleted. *Response:* This section has been a part of the Commission's regulations since the first omnibus rulemaking package was adopted in 1995. It is generally used to relieve project sponsors of unnecessary requirements, rather than to place additional requirements upon a project sponsor. The Commission expects that this type of use of the “waiver” section will continue, although it reserves the right to use such discretion in appropriate circumstances. Section 803.12 Constant-Rate Aquifer Testing *Comment:* There should be an introductory paragraph that includes a statement of purpose. *Response:* The Commission has added additional wording that explains the purpose of constant-rate aquifer testing. *Comment:* This section should state that constant-rate aquifer testing plans shall be prepared by a qualified and licensed professional geologist. *Response:* The Commission defers to state law on this matter. Geologists are not formally licensed in New York or Maryland. *Comment:* This section should state that constant-rate aquifer testing plans shall follow published Commission guidelines which shall be consistent with current industrial standards. *Comment:* Once testing is complete, the Commission should not be able to require additional testing or monitoring unless the purposes of the first testing have not been met. The specific circumstances requiring additional testing should be set forth. *Response:* These comments are addressed in the Commission's revised Aquifer Testing Guidance. Testing is conducted to provide a sound scientific basis for the Commission's decision regarding a project. Additional testing and monitoring is required to confirm assumptions in the interpretation of data or to verify system performance. *Comment:* Paragraph
(d)allows the Commission to impose arbitrary demands for additional testing. *Response:* As is the case with every governmental agency, the Commission may not constitutionally impose arbitrary requirements. *Comment:* This section deserves support. *Response:* Agreed. Section 803.13 Submission of Application *Comment:* Add a new subsection that describes the deadlines to which the Commission would be obliged with respect to:
(1)Administrative completeness;
(2)technical reviews of applications;
(3)review of supplemental submissions required by the Commission; and
(4)actions to be taken by the Commission. *Response:* The Commission feels that it would be more appropriate to address this comment in a set of accompanying guidelines rather than in the regulation itself. *Comment:* In paragraph (b), how will a transferee of a project know that it is to comply with all of the requirements to certify an intention to comply and assume all associated obligations? *Response:* This provision has been relocated to Sec. 806.6. The Commission will make available appropriate notification and certification forms to assist transferees in complying with the requirements. *Comment:* In paragraph (c), the Commission should impose a time limit on itself to determine the completeness of an application. *Response:* The provision has been deleted. Section 803.14 Contents of Application *Comment:* Applications by project sponsors should demonstrate the consistency of projects with locally adopted comprehensive plans and with state water plans. *Response:* The notice of application procedure, which covers notification to local municipalities and county planning agencies, provides an ample opportunity for those entities to submit comments to the Commission on the consistency of the projects with local plans. The Commission coordinates with state agencies on each project application, providing the states with an opportunity to comment on the consistency of the projects with any of their water plans. *Comment:* Some items that are now required to be provided in project applications are made discretionary on the part of the Commission in the new regulations. Many of these items provide information relevant to whether a proposed project impacts water resources of the basin. These should continue to be mandated. *Response:* The regulation has been restructured to mandate certain information that is uniformly applicable to all projects. The informational requirements listed as discretionary are also important, but not all are necessary for all projects. The Commission believes some discretion is needed to tailor informational needs on a case-by-case basis. *Comment:* Applications should not be deemed incomplete if they lack a plan for avoiding or mitigating consumptive use because large volume consumptive use may be a legitimate purpose. Instead preface with statement “As may be appropriate, depending upon the nature of the project, plans for avoiding * * * (etc)”. *Response:* Mitigation is one of the fundamental purposes of the consumptive use regulation. It is essential that a project sponsor develop a plan for mitigating its consumptive use. Development of a plan does not in any way imply that the use is not legitimate. *Comment:* Two additional subsections should be added to allow the applicant to provide information regarding:
(1)The benefits of the project; and
(2)plans to mitigate adverse impacts of potential adverse effects. *Response:* The project sponsor may, as it chooses, submit this information to the Commission. There is no need to make it a required submission. *Comment:* Add a new item
(xi)Evidence of compliance with all registration requirements of the Commission and the appropriate member jurisdictions. *Response:* Agreed. *Comment:* In (a)(2)(i), the project location should be determined by gps accurate to 10 meters. *Response:* Agreed. *Comment:* Paragraph (a)(2)(v) would seem to allow a requirement for a constant-rate aquifer test even if the application is for surface water, and it is the surface water application that causes the combined request to exceed 100,000 gpd. *Response:* Commission staff will take into account such situations and, as appropriate, recommend a waiver of the constant-rate aquifer test. *Comment:* With respect to paragraph (a)(3)(ii), is a PNDI being required? *Response:* The Commission currently conducts a review for threatened or endangered species and their habitats. Under the new regulations, the project sponsor will submit this information with the application. *Comment:* With respect to (b)(1)(ii), under what authority can the Commission require information on the ability of a project sponsor to fund a project? *Response:* This is a necessary and convenient power under Section 3.4
(8)to reasonably ascertain the financial ability of the project sponsor to carry out a project in a manner to be approved by the Commission, including any conditions that the Commission may impose. This authority is only exercised in very limited situations. *Comment:* With respect to (b)(1)(iii), relating to the identification of alternatives, what is a reasonable alternative? Will there be any guidance in this regard? *Response:* Reasonable in this context refers to alternatives that may be appropriate for a particular situation. Commission staff will provide guidance and consultation as needed. *Comment:* With respect to (b)(1)(iv), will the Commission maintain an inventory of anticipated uses? *Response:* It is not necessary for the Commission to maintain such an inventory. Existing and anticipated uses should be identifiable by project sponsors or their consultants in each situation. For example, if the project is proposed for an area that has experienced rapid growth, anticipated uses should be evident, or reasonably discernable. *Comment:* With respect to paragraph (3), it is much too open ended, allowing the Commission to ask for anything it deems necessary without limit. *Response:* Again, as in any action it takes as a government agency, the Commission must act reasonably. Under constitutional law principles, there must be a rational relationship between what regulatory actions the Commission takes and a legitimate regulatory objective. *Comment:* The regulations should continue the requirement for submission of comprehensive information about potential impacts of withdrawals and availability of alternatives, rather than allow its submission to be discretionary on the part of the Commission. *Response:* Again, the regulation has been restructured to mandate certain information that is uniformly applicable to all projects. The informational requirements listed as discretionary are also important, but not all are necessary for all projects. The Commission believes some discretion is needed to tailor informational needs on a case-by-case basis. *Comment:* There should be compatibility with regional and state Act 220 plans. *Response:* The Commission routinely coordinates its approvals with its member jurisdictions. The project sponsor is required to give notice to the municipality and county planning agency of its application for approval, thereby providing an opportunity for local and regional interests to comment on the compatibility of projects. Section 803.16 Completeness of Application *Comment:* Add a statement providing that the Commission will provide the project sponsor with either a formal notice of administrative completeness, or a deficiency notice within a prescribed time. *Response:* The Commission currently provides deficiency notices, when appropriate, as reviews are undertaken. Section 803.21 General Standards *Comment:* Omit the sentence containing the subjective terms “detrimental” and “proper.” *Response:* The wording comes directly from the compact. *Comment:* The words “modify and approve as modified” should be rephrased to “With the applicant's consent, the Commission may modify * * *” Only the applicant should have the right to modify a project, not the Commission. *Response:* Again, the wording comes directly from the compact. Also, this sentence is not meant to imply that the Commission would unilaterally modify a project without prior notice. It may condition its approval on the project sponsor making a modification or incorporating a condition that would help meet a Commission regulatory objective, but the Commission would not unilaterally modify a project without prior notice and an opportunity to be heard. *Comment:* Add a new subsection that requires that Commission staff provide a draft docket to project sponsors at least 10 days in advance of Commission action on that docket. If the staff is recommending modifications, they should be required to provide the reasons for the recommended modifications in writing with quantitative analysis. *Response:* The Commission strives to provide project sponsors with a draft docket as far in advance of final Commission action as possible. However, due to fluctuations in the number and complexity of dockets before the Commission at any particular meeting, a guarantee of ten
(10)days advance review is not possible in all cases. *Comment:* The Commission should not suspend review or revoke approval due to the disapproval of another government agency, especially when what some other agency is deciding has little or nothing to do with the water resources of the project. Furthermore, this provision seems to limit the Commission's power to preempt municipal regulations that, at least under Pennsylvania Law, illegally attempts to regulate water withdrawals. Instead of suspending review, the Commission should proceed expeditiously with its review and approval process and simply condition its approval on the applicant obtaining and retaining all other applicable approvals. *Response:* The Commission will not suspend its review or approval of a project in response to the illegal exercise of authority by another governmental jurisdiction. However, it makes sense to coordinate Commission review and approval actions with other governmental jurisdictions. By the same token, it makes little sense for the Commission to expend staff resources on the review of projects that have been rejected by other governmental jurisdictions and cannot, therefore, be implemented. *Comment:* This section should be supported because it allows the Commission to streamline its decision making with other government entities involved in project review. *Response:* Agreed. See response to prior comment. *Comment:* Should include language acknowledging the importance of economic interests of the applicant, community, region, etc. *Response:* See above responses regarding purposes of the regulations. Section 803.22 Standards for Consumptive Uses of Water *Comment:* Eliminating the Q7-10 trigger flow for providing makeup during periods of low flow leaves too much discretion to SRBC and leaves no guidance to project sponsors to determine risk and costs. *Response:* The elimination of the Q7-10 trigger flow criterion effectively changes little because few consumptive use projects approved by the Commission are now tied to this criterion. Most project sponsors opt for payment of the consumptive use fee as a means of compliance rather than release storage or shut down during low flow periods. When the Commission does set a low flow criterion, it does so on a case-by-case basis using modern assessment techniques that allow the Commission to more accurately assess the particular needs of the affected stream. The Commission establishes passby flow requirements the same way. In cases involving a consumptive use as well as a withdrawal, the established passby flow serves as the low flow criterion for a project. In the rare event that a flow criterion is set for a particular project, it will be done only after the project sponsor is given the opportunity at a public hearing to submit information and make relevant arguments regarding the establishment of a flow criterion for its project. The criterion will not be established arbitrarily and without notice and opportunity for response. *Comment:* “Sole Discretion” language too open ended and must incorporate reasonableness. *Response:* See responses above to allegation that the Commission may act arbitrarily under these proposed regulations. *Comment:* Support expressed for the approval by rule procedures as a means of streamlining the approval process. *Response:* The Commission agrees. *Comment:* Section 803.22 (b)(4) is inconsistent with the other alternatives provided under (b). *Response:* Agreed. It has been made a separate item. *Comment:* With respect to (b)(1)(ii), an explanation should be included as to why a project may be required to reduce its withdrawal to an amount greater than its consumptive use. *Response:* Agreed. The words “or greater than” have been removed. *Comment:* Eliminate mitigation requirement. *Response:* Mitigation of consumptive use is a fundamental purpose of the consumptive use regulation and an element of the regulation that comes directly from the Commission's comprehensive plan. Eliminating mitigation requirements essentially would ignore the provisions of the comprehensive plan. *Comment:* On the approval by rule provision, the Commission should provide for a 30- to 60-day notification instead of 90 days. *Response:* The Commission feels that the 90-day notification is appropriate for qualified projects. Section 803.23 Standards for Water Withdrawals *Comment:* SRBC withdrawal regulations relating to the protection of existing users should make clear that inefficient existing sources of water may not necessarily be protected. *Response:* The Commission does not wish to imply that it will protect existing users under all circumstances, thus in effect granting a prior appropriation of water, which is prohibited under the compact. *Comment:* Section 803.23(b)—Add the word “significant” before the words adverse impacts. *Response:* Agreed. This will remove the implication that a *de minimis* adverse impact will form the basis for some limitation or condition. *Comment:* Section 803.23(b)(2)—Add “Commission may consider and balance.” *Response:* As it has always done, the Commission will carefully weigh the necessity of any requirement or limitation that it imposes versus the benefit to be achieved. *Comment:* Section 803.23(b), that allows the Commission to deny, limit or condition an approval to insure no adverse impact, incorrectly suggests that lowering of groundwater levels and stream flow levels is an adverse impact. These may be perfectly legitimate occurrences in connection with use of an aquifer. *Response:* The Commission has added “significant” before the words “adverse impact” to remove the implication that a *de minimis* adverse impact will form the basis for some limitation or condition. *Comment:* In Section 803.23(b), the Commission should not accord protection status to intermittent streams, as such protection would unduly restrict the use and potential of aquifers that can be used as groundwater reservoirs to provide economically important water supplies. *Response:* The Commission believes that headwaters must be carefully managed to insure a proper balance of sustainable development, responsible use, and conservation. Intermittent streams are not afforded special protection; however, Commission staff does evaluate for potential adverse impacts. The withdrawal of large quantities of groundwater from small headwater basins can dewater springs and wetlands, and reduce the groundwater contribution (base flow) to headwater streams. This can change the previous intermittent reaches to ephemeral reaches and the uppermost perennial reaches to intermittent reaches. While the loss of perennial stream length is generally a small fraction of the entire stream, it often represents the most pristine portion of the watershed with respect to water quality and habitat. *Comment:* The Commission needs to define the term “low flow.” The most logical definition is the Q7-10 low flow. To protect stream flows at any higher level would unduly restrict the use and potential of aquifers that can be used as reservoirs for economically important activities. *Response:* The Commission sets low flow criteria on a case-by-case basis using modern assessment techniques to accurately assess the particular needs of the affected stream. The Commission will carefully weigh any limitation it imposes versus the benefit to be achieved. *Comment:* The Commission should provide its regulatory requirements concerning the establishment of passby standards in Section 803.23. The current practice of setting a passby standard at 20 percent of average daily flow is not a fair, reasonable and appropriate approach to balancing the need to allow a beneficial stream withdrawal with the need to protect the stream ecology. *Response:* The Commission has incorporated passby standards in guidelines that it makes available to all applicants. The Commission sets a low flow criterion based on the particular needs of the stream, the best available science, and on a case-by-case basis. Instream needs are assessed using standard methodologies and can always be refined by local studies. Incorporating the standards in guidance enables the Commission to periodically update those standards as new science emerges. *Comment:* The Commission should define terms such as “adverse impact, aquatic habitat and water quality degradation.” *Response:* The latter two items, as used in Section 803.23, are listed only as possible indicators of adverse impacts that the Commission may consider in each individual case or circumstance. It is not necessary or desirable to place specific weight or limiting criteria on factors that are merely indicators of possible adverse impacts. The term “adverse impacts” or “adverse effect” comes directly from the language of Section 3.10 of the Susquehanna River Basin Compact granting authority to the Commission to review and approve projects that may cause an adverse effect. *Comment:* In 803.23(b)(3), make it clear that the applicant shall have the right to propose mitigation measures to offset potential adverse impacts of the proposed project. *Response:* The Commission encourages a project sponsor to propose mitigation for any potential adverse impacts in its application(s). Further, the Commission carries on an active dialogue with project sponsors during the review process, and the project sponsor is free at that time to propose any reasonable form of mitigation. *Comment:* A decision to deny, modify or conditionally approve a withdrawal project should be accompanied by a technical evaluation that is provided to the project sponsor in a timely manner to allow sponsor to rebut the conclusions or revise its application to address concerns raised by the Commission. *Response:* As stated above, the Commission carries on an active dialogue with the project sponsor during the review process that allows for an exchange of information on staff conclusions and concerns, and how such concerns may be resolved. *Comment:* The Commission should consider a new MOU with DEP Mining to avoid the “double jeopardy” concern. *Response:* The proposed Section 803.7 provides for administrative agreements or other cooperative arrangements with agencies of the member jurisdictions. The Commission anticipates that existing agreements will be reconsidered following adoption of the new regulations. Section 803.24 Standards for Diversions *Comment:* This section should be supported or even strengthened to explicitly state that an applicant for a diversion must demonstrate “by clear and convincing evidence” a need for the diversion. *Response:* The Commission believes that the language proposed ensures that the project sponsor will be required to adequately demonstrate a need for the diversion without the formal inclusion of an evidentiary standard that may be subject to further construction or interpretation. Section 803.25 Water Conservation Standards *Comment:* AWWA standards should be used for customer meter testing under Section 803.25(a)(2). Is the definition for “flow control device” correct? *Response:* The water conservation standards were taken directly from the current regulations. The Commission intends to revisit this section in the future and will evaluate the published standards at that time. Section 803.30 Monitoring *Comment:* The Commission should accept testing and monitoring done in accordance with member state standards when the state has a parallel or equally stringent procedure. *Response:* The water conservation standards were taken directly from the current regulations. The Commission intends to revisit this section in the future and will evaluate the published standards at that time. *Comment:* The Commission should consider whether PWS source meters should be certified annually, rather than every five years, with a possible exception for agriculture. *Response:* The regulations set the minimum standard for all projects. The Commission can specify certification more frequently than once every five
(5)years for source meters of public water suppliers if warranted, or as required in other permits. *Comment:* In Section 803.30 (b)(2)(ii), a monitoring loss should be reported within five days of such loss, regardless of the length of time the loss continues. *Response:* Agreed. *Comment:* The Commission should continue to mandate that project sponsors monitor the water quality impacts of their withdrawals to help the Commission fulfill the compact purposes of “stream quality control” and the “abatement of pollution.” *Response:* The requirement to collect water quality data was burdensome for the project sponsor, burdensome for Commission staff to review and maintain, and it is generally not used by Commission programs because similar data are available from other sources, particularly from its member jurisdictions, each of which administers a comprehensive water quality program. The Commission reserves the right on any given application to require water quality sampling, if water quality is an issue. Section 803.31 Duration of Approvals and Renewals *Comment:* The Commission should not be reducing the duration of approvals from 25 years to 15 years. Many water resources projects involve large investments of money and many years of planning that are not well accommodated by an approval of 15 years. Instead, the Commission should rely on its authority to reopen a docket if there is a potential problem. The Commission should not have deleted the language that appears in the existing regulations allowing the Commission “to modify this duration in consideration of such factors as the time needed to amortize a project investment, the time needed to secure project financing, the potential risks of interference with an existing project, and other equitable factors.” *Response:* The Commission has found that both projects and the water resources that serve them are subject to many changes over 25 years and, therefore, it is appropriate to review these applications on a more frequent basis. The Commission agrees to reinsert the deleted language allowing the Commission to modify the standard duration, when appropriate, in consideration of the factors enumerated in this comment. *Comment:* The time for commencement of a project after approval should take into account that some large projects require longer permitting periods and longer construction times. Opponents sometimes attempt to delay projects using administrative appeals and other devices that can prevent a large project from commencement. *Response:* The Commission agrees that there may be circumstances in which a longer time frame is needed for undertaking a project. The Commission is inserting language that will allow adjustments to this time limit on a case-by-case basis. *Comment:* The submission of an application one year in advance for the renewal of an approval is too long and unneeded. *Response:* The time was set to afford both the project sponsor and Commission staff sufficient time to evaluate changes to the project and changes to the resource, and is reasonable considering current review times. Having said that, the Commission is nonetheless willing to modify the period to six
(6)months. As modified, a project sponsor who submits a complete application six
(6)months in advance, is given the benefit of having an existing approval automatically extended until such time as the Commission renders a decision on the new application. This eliminates the risk of having an approval expire before the Commission has an opportunity to act. *Comment:* In (a), the reduction of the duration of approvals to 15 years is appropriate. In fact, 10 years would be more appropriate. *Response:* The Commission agrees that the reduction of the term to 15 years is appropriate so that commitment of water to a particular use can be reviewed more frequently and any changes in conditions can be addressed sooner. *Comment:* In (c), there should be a notification to the state agency with jurisdiction over the project, at the time a waiver is applied for. *Response:* The Commission routinely coordinates with member jurisdictions on such project-related matters. *Comment:* How will the Commission fund the increased workload resulting from shorter duration periods? *Response:* The Commission has no special plans for funding any increase in workload resulting from a shorter approval term. The member jurisdictions who approve the Commission's budget will need to consider any such increased workload associated with the completion of the Commission's responsibilities under the compact. *Comment:* With respect to paragraph (d), abandonment should have to be proven by the Commission and not inferred. Notice should be provided to the project sponsor. *Response:* Under general legal principles, any inference of abandonment acted upon by the Commission will have to be supported by substantial evidence and appropriate notice and opportunity to be heard. There is no need for the wording suggested by this comment. *Comment:* Application fees should be adjusted downward to account for shorter durations. *Response:* The main purpose of shortening the term of approvals is not to realize more revenues from project review fees. In fact, these fees cover no more that half the cost of conducting a review. Project reviews conducted on a more frequent basis will actually involve increased costs that will more than offset any increased revenues from application fees. Section 803.32 Reopening/Modification *Comment:* In (a), the word “significant” should be substituted for the word “substantial” before the words “adverse impact.” *Response:* Agreed. *Comment:* In (c), the Commission should retain the discretion to require a project sponsor to provide a temporary source of potable water at the project sponsor's expense, if interference should occur during a pumping test of a source under development. *Response:* Agreed. *Comment:* The language of 803.32(b) is too strong in that it does not spell out how to remedy situations where a project sponsor fails to comply with a term or condition of its docket approval. *Response:* The remedy will be worked out administratively between the Commission and the project sponsor without providing for a specific remedy in the regulation. Section 803.33 Interest on Fees *Comment:* Rate should be established and equally imposed. *Response:* Interest rates change as they are affected by market forces and therefore should not be set permanently by regulation. Whatever rate is established will be uniformly imposed. Section 803.34 Emergencies *Comment:* In (b), at the end of the paragraph, delete the word “information” before the colon. Also, in (b)(2), delete the word “information” following the word “application.” *Response:* Agreed. *Comment:* In (b)(1), replace “an emergency” with “a completed emergency” before the words “application form.” *Response:* Agreed. *Comment:* In (b)(2)(x), because of the immediate inclusion of an application fee may delay submittal of an emergency application, provision should be made in the regulation for reduction, waiver, or later submittal of an “appropriate” fee. *Response:* Agreed; however, this is a change that can be made in the SRBC Project Fee Schedule, rather than these regulations. Comments by Section, Part 804 Section 804.2 Time Limits *Comment:* Registration language strongly supported. *Response:* Agreed. Section 804.3 Administrative Agreements *Comment:* Add the following: “In conjunction with such agreements or arrangements, the Commission will require submission of all necessary registration forms to the member jurisdiction as part of a complete application for renewal of an existing project or new or expanded agricultural project or as a condition of approval of any other new or expanded project.” *Response:* Although not using this suggested language, the Commission has revised this section and renamed it “Administrative coordination” to address this comment. Comments by Section, Part 805 Section 805.1 Public Hearings *Comment:* Participants to a hearing should be limited to interested parties. *Response:* Who is able to participate in a hearing will depend on the circumstances and will be controlled by a decision of the presiding officer. *Comment:* Notice of hearings should continue to be posted at Commission offices. *Response:* Agreed. *Comment:* Why does the Commission need three days notice? *Response:* This is not mandated by the regulation but is more in the form of a request to participants. Three days allows the Commission to assemble a list of participants and establish an order of call for those wishing to provide testimony. Section 805.2 Administrative Appeals *Comment:* Administrative hearings should be held in the state where the project or controversy is located. Also, the Commission should appoint an “impartial” hearing officer who shall not be a member of the Commission or an officer of the Commission. The Commission should absorb all hearing costs. *Response:* Wherever practicable, the Commission will conduct such hearings in the general vicinity where the project or controversy is located. The Commission will also take steps to insure the impartiality of the hearing officer. Such steps do not require, however, that the Commission automatically disqualify members of the Commission or officers of the Commission. Hearing officers only make findings of fact and law that serve as recommendations to the Commission. The ultimate decision in any matter rests with the Commission. With respect to costs, they should be distributed equitably and not assigned automatically to any single party. The Commission has included an in *forma pauperis* procedure in Section 805.3 for parties who genuinely cannot pay hearing costs and have acted in good faith. *Comment:* Parties should have at least 60 days to file an administrative appeal, rather than the 30 days given in proposed Section 805.2. Sometimes there is delay in a party learning of a Commission decision, effectively reducing the time for appeals. *Response:* The Commission feels that thirty
(30)days strikes the appropriate balance for having its action open for appeal. Section 805.3 Hearing on Administrative Appeal *Comment:* Cost of expert consultants should be paid by the Commission. *Response:* Again, the presiding officer should be able to weigh the equities of assigning costs for a hearing without being bound by a specific rule, some of which may be assigned to the Commission. Section 805.10 Scope of Subpart *Comment:* Regulated entities should be legally obligated to meet the terms and conditions for their approvals and SRBC must have the authority to ensure that they do. *Response:* The Commission strongly agrees and that is why the compliance and enforcement provisions of these regulations have been strengthened. Section 805.12 Investigative Powers *Comment:* The Commission does not have authority from the compact to provide for warrantless searches. *Response:* Agreed. This provision will be stricken. The Commission will acquire an administrative search warrant whenever it is legally required to do so. *Comment:* Strongly supported as necessary for the Commission to effectively enforce its regulations. *Response:* The Commission strongly agrees. Section 805.14 Orders *Comment:* The Commission does not have authority from the compact to issue orders. *Response:* As noted in the Commission's response to the general comments, the Commission strongly disagrees with this contention. The Susquehanna River Basin Compact, P.L. 91-575 provides broad and sweeping powers to the Commission to carry out its purposes, including under Section 3.4 the power to have and exercise all powers necessary or convenient to carry out its express powers and other powers which reasonably may be implied therefrom. Also, that same section empowers the Commission to adopt, amend, and repeal rules and regulations to implement the compact. *Comment:* Strongly supported as necessary for the Commission to effectively enforce its regulations. *Response:* The Commission strongly agrees. Final Rule List of Subjects in 18 CFR Parts 803, 804, 805, 806, 807 and 808 Administrative practice and procedure, Water resources. Accordingly, for the reasons set forth in the preamble, under the authority of secs. 3.4, 3.5 (5), 3.8, 3.10, and 15.2, Pub. L. 91-575, 84 Stat. 1509 *et seq.,* Chapter VIII of the Code of Federal Regulations is amended as follows: PARTS 803, 804, AND 805—[REMOVED AND RESERVED] 1. Parts 803, 804, and 805 are removed and reserved. 2. Part 806 is added to read as follows. PART 806—REVIEW AND APPROVAL OF PROJECTS Subpart A—General Provisions Sec. 806.1 Scope. 806.2 Purposes. 806.3 Definitions. 806.4 Projects requiring review and approval. 806.5 Projects that may require review and approval. 806.6 Transfer of approvals. 806.7 Concurrent project review by member jurisdictions. 806.8 Waiver/modification. Subpart B—Application Procedure 806.10 Purpose of this subpart. 806.11 Preliminary consultations. 806.12 Constant-rate aquifer testing. 806.13 Submission of application. 806.14 Contents of application. 806.15 Notice of application. 806.16 Completeness of application. Subpart C—Standards for Review and Approval 806.20 Purpose of this subpart. 806.21 General standards. 806.22 Standards for consumptive uses of water. 806.23 Standards for water withdrawals. 806.24 Standards for diversions. 806.25 Water conservation standards. Subpart D—Terms and Conditions of Approval 806.30 Monitoring. 806.31 Term of approvals. 806.32 Reopening/modification. 806.33 Interest on fees. 806.34 Emergencies. 806.35 Fees. Authority: Secs. 3.4, 3.5 (5), 3.8, 3.10, and 15.2, Pub. L. 91-575, 84 Stat. 1509, *et seq.* Subpart A—General Provisions § 806.1 Scope.
(a)This part establishes the scope and procedures for review and approval of projects under Section 3.10 of the Susquehanna River Basin Compact, Public Law 91-575, 84 Stat. 1509 *et seq.* , (the compact) and establishes special standards under Section 3.4(2) of the compact governing water withdrawals and the consumptive use of water. The special standards established pursuant to Section 3.4(2) shall be applicable to all water withdrawals and consumptive uses in accordance with the terms of those standards, irrespective of whether such withdrawals and uses are also subject to project review under Section 3.10. This part, and every other part of 18 CFR Chapter VIII, shall also be incorporated into and made a part of the comprehensive plan.
(b)When projects subject to Commission review and approval are sponsored by governmental authorities, the Commission shall submit recommendations and findings to the sponsoring agency, which shall be included in any report submitted by such agency to its respective legislative body or to any committee thereof in connection with any request for authorization or appropriation therefor. The Commission review will ascertain the project's compatibility with the objectives, goals, guidelines and criteria set forth in the comprehensive plan. If determined compatible, the said project will also be incorporated into the comprehensive plan, if so required by the compact. For the purposes of avoiding conflicts of jurisdiction and of giving full effect to the Commission as a regional agency of the member jurisdictions, no expenditure or commitment shall be made by any governmental authority for or on account of the construction, acquisition or operation of any project or facility unless it first has been included by the Commission in the comprehensive plan.
(c)If any portion of this part, or any other part of 18 CFR Chapter VIII, shall, for any reason, be declared invalid by a court of competent jurisdiction, all remaining provisions shall remain in full force and effect.
(d)Except as otherwise stated in this part, this part shall be effective on January 1, 2007.
(e)When any period of time is referred to in this part, such period in all cases shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the law of the United States, such day shall be omitted from the computation.
(f)Any Commission forms or documents referenced in this part may be obtained from the Commission at 1721 North Front Street, Harrisburg, PA 17102-2391, or from the Commission's Web site at *http://www.srbc.net* . § 806.2 Purposes.
(a)The general purposes of this part are to advance the purposes of the compact and include, but are not limited to:
(1)The promotion of interstate comity;
(2)The conservation, utilization, development, management and control of water resources under comprehensive, multiple purpose planning; and
(3)The direction, supervision and coordination of water resources efforts and programs of federal, state and local governments and of private enterprise.
(b)In addition, §§ 806.22, 806.23 and 806.24 of this part contain the following specific purposes: Protection of public health, safety and welfare; stream quality control; economic development; protection of fisheries and aquatic habitat; recreation; dilution and abatement of pollution; the regulation of flows and supplies of ground and surface waters; the avoidance of conflicts among water users; the prevention of undue salinity; and protection of the Chesapeake Bay.
(c)The objective of all interpretation and construction of this part and all subsequent parts is to ascertain and effectuate the purposes and the intention of the Commission set out in this section. These regulations shall not be construed in such a way as to limit the authority of the Commission, the enforcement actions it may take, or the remedies it may prescribe. § 806.3 Definitions. For purposes of parts 806, 807 and 808, unless the context indicates otherwise, the words listed in this section are defined as follows: *Agricultural water use.* A water use associated primarily with the raising of food, fiber or forage crops, trees, flowers, shrubs, turf, livestock and poultry. The term shall include aquaculture. *Application.* A written request for action by the Commission including without limitation thereto a letter, referral by any agency of a member jurisdiction, or an official form prescribed by the Commission. *Basin.* The area of drainage of the Susquehanna River and its tributaries into the Chesapeake Bay to the southern edge of the Pennsylvania Railroad bridge between Havre de Grace and Perryville, Maryland. *Change of Ownership.* A change in ownership shall mean any transfer by sale or conveyance of the real or personal property comprising a project. *Commission.* The Susquehanna River Basin Commission, as established in Article 2 of the compact, including its commissioners, officers, employees, or duly appointed agents or representatives. *Commissioner.* Member or Alternate Member of the Susquehanna River Basin Commission as prescribed by Article 2 of the compact. *Compact.* The Susquehanna River Basin Compact, Pub. L. 91-575; 84 Stat. 1509 *et seq.* *Comprehensive plan.* The comprehensive plan prepared and adopted by the Commission pursuant to Articles 3 and 14 of the compact. *Construction.* To physically initiate assemblage, installation, erection or fabrication of any facility involving or intended for the withdrawal, conveyance, storage or consumptive use of waters of the basin. *Consumptive use.* The loss of water transferred through a manmade conveyance system or any integral part thereof (including such water that is purveyed through a public water supply or wastewater system), due to transpiration by vegetation, incorporation into products during their manufacture, evaporation, injection of water or wastewater into a subsurface formation from which it would not reasonably be available for future use in the basin, diversion from the basin, or any other process by which the water is not returned to the waters of the basin undiminished in quantity. *Diversion.* The transfer of water into or out of the basin. *Executive Director.* The chief executive officer of the Commission appointed pursuant to Article 15, Section 15.5, of the compact. *Facility.* Any real or personal property, within or without the basin, and improvements thereof or thereon, and any and all rights of way, water, water rights, plants, structures, machinery, and equipment acquired, constructed, operated, or maintained for the beneficial use of water resources or related land uses or otherwise including, without limiting the generality of the foregoing, any and all things and appurtenances necessary, useful, or convenient for the control, collection, storage, withdrawal, diversion, release, treatment, transmission, sale, or exchange of water; or for navigation thereon, or the development and use of hydroelectric energy and power, and public recreational facilities; of the propagation of fish and wildlife; or to conserve and protect the water resources of the basin or any existing or future water supply source, or to facilitate any other uses of any of them. *Governmental authority.* A federal or state government, or any political subdivision, public corporation, public authority, special purpose district, or agency thereof. *Groundwater.* Water beneath the surface of the ground within a zone of saturation, whether or not flowing through known and definite channels or percolating through underground geologic formations, and regardless of whether the result of natural or artificial recharge. The term includes water contained in quarries, pits and underground mines having no significant surface water inflow, aquifers, underground water courses and other bodies of water below the surface of the earth. The term also includes a spring in which the water level is sufficiently lowered by pumping or other means of drainage to eliminate the surface flow. All other springs are considered to be surface water. *Member jurisdiction.* The signatory parties as defined in the compact, comprised of the States of Maryland and New York, the Commonwealth of Pennsylvania, and the United States of America. *Member state.* The States of Maryland and New York, and the Commonwealth of Pennsylvania. *Person.* An individual, corporation, partnership, unincorporated association, and the like and shall have no gender and the singular shall include the plural. The term shall include a governmental authority and any other entity which is recognized by law as the subject of rights and obligations. *Pre-compact consumptive use.* The maximum average daily quantity or volume of water consumptively used over any consecutive 30-day period prior to January 23, 1971. *Project.* Any work, service, activity, or facility undertaken which is separately planned, financed or identified by the Commission, or any separate facility undertaken or to be undertaken by the Commission or otherwise within a specified area, for the conservation, utilization, control, development, or management of water resources which can be established and utilized independently, or as an addition to an existing facility, and can be considered as a separate entity for purposes of evaluation. *Project sponsor.* Any person who owns, operates or proposes to undertake a project. The singular shall include the plural. *Public water supply.* A system, including facilities for collection, treatment, storage and distribution, that provides water to the public for human consumption, that:
(1)Serves at least 15 service connections used by year-round residents of the area served by the system; or
(2)Regularly serves at least 25 year-round residents. *Surface water.* Water on the surface of the ground, including water in a perennial or intermittent watercourse, lake, reservoir, pond, spring, wetland, estuary, swamp or marsh, or diffused surface water, whether such body of water is natural or artificial. *Undertake.* Except for activities related to site evaluation, the initiation of construction or operation of a new or expanded project, or the operation of an existing project, that is subject to Commission review and approval. *Water or waters of the basin.* Groundwater or surface water, or both, within the basin either before or after withdrawal. *Water resources.* Includes all waters and related natural resources within the basin. *Withdrawal.* A taking or removal of water from any source within the basin for use within the basin. § 806.4 Projects requiring review and approval.
(a)Except for activities relating to site evaluation or those authorized under § 806.34, no person shall undertake any of the following projects without prior review and approval by the Commission. The project sponsor shall submit an application in accordance with subpart B and shall be subject to the applicable standards in subpart C.
(1)Consumptive use of water. Any consumptive water use project described below shall require an application to be submitted in accordance with § 806.13, and shall be subject to the standards set forth in § 806.22, and, to the extent that it involves a withdrawal from groundwater or surface water, shall also be subject to the standards set forth in § 806.23. Except to the extent that they involve the diversion of the waters of the basin, public water supplies shall be exempt from the requirements of this section regarding consumptive use; provided, however, that nothing in this section shall be construed to exempt individual consumptive users connected to any such public water supply from the requirements of this section.
(i)Any project initiated on or after January 23, 1971, involving a consumptive water use of an average of 20,000 gallons per day
(gpd)or more in any consecutive 30-day period.
(ii)With respect to projects previously approved by the Commission for consumptive use, any project that will involve an increase in a consumptive use above that amount which was previously approved.
(iii)With respect to projects that existed prior to January 23, 1971, any project that increases its consumptive use by an average of 20,000 gpd or more in any consecutive 30-day period above its pre-compact consumptive use.
(iv)Any project, regardless of when initiated, involving a consumptive use of an average of 20,000 gpd or more in any 30-day period, and undergoing a change of ownership, unless such project satisfies the requirements of paragraphs
(b)or
(c)of this section or the existing Commission approval for such project is transferred pursuant to § 806.6.
(2)Withdrawals. Any project described below shall require an application to be submitted in accordance with § 806.13, and shall be subject to the standards set forth in § 806.23. Hydroelectric projects, except to the extent that such projects involve a withdrawal, shall be exempt from the requirements of this section regarding withdrawals; provided, however, that nothing in this paragraph shall be construed as exempting hydroelectric projects from review and approval under any other category of project requiring review and approval as set forth in this section, § 806.5, or 18 CFR part 801.
(i)Any project initiated on or after the applicable dates specified in paragraph (a)(2)(iv) below, withdrawing a consecutive 30-day average of 100,000 gpd or more from a groundwater or surface water source, or a combination of such sources.
(ii)With respect to projects previously approved by the Commission, any project that increases a withdrawal above that amount which was previously approved and any project that will add a source or increase withdrawals from an existing source which did not require approval prior to January 1, 2007.
(iii)Any project which involves a withdrawal from a groundwater or surface water source and which is subject to the requirements of paragraph
(a)of this section regarding consumptive use.
(iv)With respect to groundwater projects in existence prior to July 13, 1978, and surface water projects in existence prior to November 11, 1995, any project that will increase its withdrawal from any source or combination of sources, by a consecutive 30-day average of 100,000 gpd or more, above that maximum consecutive 30-day amount which the project was withdrawing prior to the said applicable date.
(v)Any project, regardless of when initiated, involving a withdrawal of a consecutive 30-day average of 100,000 gpd or more, from either groundwater or surface water sources, or in combination from both, and undergoing a change of ownership, unless such project satisfies the requirements of paragraphs
(b)or
(c)of this section or the existing Commission approval for such project is transferred pursuant to § 806.6.
(3)Diversions. The projects described below shall require an application to be submitted in accordance with § 806.13, and shall be subject to the standards set forth in § 806.24. The project sponsors of out-of-basin diversions shall also comply with all applicable requirements of this part relating to consumptive uses and withdrawals.
(i)Any project initiated on or after January 23, 1971, involving the diversion of water into the basin, or involving a diversion of water out of the basin of an average of 20,000 gallons of water per day or more in any consecutive 30-day period.
(ii)With respect to diversions previously approved by the Commission, any project that will increase a diversion above the amount previously approved.
(iii)With respect to diversions initiated prior to January 23, 1971, any project that will increase a diversion into the basin by any amount, or increase the diversion of water out of the basin by an average of 20,000 gpd or more in any consecutive 30-day period.
(iv)Any project, regardless of when initiated, involving the diversion of water into the basin or involving a diversion of an average of 20,000 gallons of water per day or more in any consecutive 30-day period out of the basin, and undergoing a change of ownership, unless such project satisfies the requirements of paragraphs
(b)or
(c)of this section or the Commission approval for such project is transferred pursuant to § 806.6.
(4)Any project on or crossing the boundary between two member states.
(5)Any project in a member state having a significant effect on water resources in another member state.
(6)Any project which has been or is required to be included by the Commission in its comprehensive plan, or will have a significant effect upon the comprehensive plan.
(7)Any other project so determined by the commissioners or Executive Director pursuant to § 806.5 or 18 CFR part 801. Such project sponsors shall be notified in writing by the Executive Director.
(b)Any project that did not require Commission approval prior to January 1, 2007, and undergoing a change of ownership, shall be exempt from the requirements of paragraph (a)(1)(iv), (a)(2)(v) or (a)(3)(iv) of this section if it satisfies any of the following categories:
(1)A corporate reorganization of the following types:
(i)Where property is transferred to a corporation by one or more corporations solely in exchange for stock or securities of the transferee corporation, provided that immediately after the exchange the transferor corporation(s) own 80 percent of the voting stock and 80 percent of all other stock of the transferee corporation.
(ii)Where the corporate reorganization is merely a result of a change of the name, identity, internal corporate structure or place of organization and does not affect ownership or control.
(2)Transfer of a project to the transferor's spouse or one or more lineal descendents, or any spouse of such lineal descendents, or to a corporation owned or controlled by the transferor, or the transferor's spouse or lineal descendents, or any spouse of such lineal descendents, for so long as the combined ownership interest of the transferor, the transferor's spouse and/or the transferor's lineal descendent(s) and their spouses, continues to be 51 percent or greater.
(3)Transfer of land used primarily for the raising of food, fiber or forage crops, trees, flowers, shrubs, turf, livestock, or poultry, or for aquaculture, to the extent that, and for so long as, the project's water use continues to be for such agricultural water use purposes.
(c)Any project that did not require Commission approval prior to January 1, 2007, and not otherwise exempt from the requirements of paragraph (a)(1)(iv), (a)(2)(v) or (a)(3)(iv) pursuant to paragraph
(b)of this section, may be undertaken by a new project sponsor upon a change of ownership pending action by the Commission on an application submitted by such project sponsor requesting review and approval of the project, provided such application is submitted to the Commission in accordance with this part on or before the date change of ownership occurs and the project features related to the source, withdrawal, diversion or consumptive use of water, or the nature or quantity of water withdrawal, diversion or consumptive use associated with the project do not change pending review of the application. For purposes of this paragraph, changes in the quantity of water withdrawal, diversion or consumptive use shall only relate to increases in quantity in excess of the quantity withdrawn, diverted or consumptively used prior to the change of ownership. § 806.5 Projects that may require review and approval.
(a)The following projects, if not otherwise requiring review and approval under § 806.4, and provided that the project sponsor is notified in writing by the Executive Director, may be subject to Commission review and approval as determined by the Commission or the Executive Director:
(1)Projects that may affect interstate water quality.
(2)Projects within a member state that have the potential to affect waters within another member state. This includes, but is not limited to, projects which have the potential to alter the physical, biological, chemical or hydrological characteristics of water resources of interstate streams designated by the Commission under separate resolution.
(3)Projects that may have a significant effect upon the comprehensive plan.
(4)Projects not included in paragraphs (a)(1) through (a)(3) of this section, but which could have an adverse, adverse cumulative, or interstate effect on the water resources of the basin.
(b)Determinations by the Executive Director may be appealed to the Commission within 30 days after receipt of notice of such determination as set forth in § 808.2. § 806.6 Transfer of approvals.
(a)An existing Commission project approval may be transferred, or conditionally transferred, without prior Commission review and approval, to a new project sponsor upon a change of ownership of the project, subject to the provisions of paragraphs (b),
(c)and
(d)below, provided the new project sponsor notifies the Commission in advance of the date of the change of ownership, which notice shall be on a form and in a manner prescribed by the Commission and under which the new project sponsor certifies its intention to comply with all terms and conditions of the transferred approval and assume all other associated obligations.
(b)An existing Commission project approval for any of the following categories of projects may be transferred, without Commission review or approval, upon a change of ownership and the new project sponsor may operate such project under the terms and conditions of the transferred approval:
(1)A project undergoing a change of ownership as a result of a corporate reorganization of the following types:
(i)Where property is transferred to a corporation by one or more corporations solely in exchange for stock or securities of the transferee corporation, provided that immediately after the exchange the transferor corporation(s) own 80 percent of the voting stock and 80 percent of all other stock of the transferee corporation.
(ii)Where the corporation reorganization is merely a result of a change of the name, identity, internal corporate structure or place of organization and does not affect ownership or control.
(2)A project being transferred to the transferor's spouse or one or more lineal descendents, or any spouse of such lineal descendents, or to a corporation owned or controlled by the transferor, or the transferor's spouse or lineal descendents, or any spouse of such lineal descendents, for so long as the combined ownership interest of the transferor, the transferor's spouse and/or the transferor's lineal descendent(s) and their spouses, continues to be 51 percent or greater.
(3)A project involving the transfer of land used primarily for the raising of food, fiber or forage crops, trees, flowers, shrubs, turf, livestock or poultry, or for aquaculture, to the extent that, and for so long as, the project's water use continues to be for such agricultural water use purposes.
(4)A project that satisfies all of the following conditions:
(i)The existing Commission approval is less than ten
(10)years old.
(ii)The project has no associated pre-compact consumptive water use.
(iii)The project has no associated diversion that was initiated prior to January 23, 1971.
(iv)The project has no associated groundwater withdrawal that was initiated prior to July 13, 1978, unless such withdrawal has otherwise been approved by the Commission.
(v)The project has no associated surface water withdrawal that was initiated prior to November 11, 1995, unless such withdrawal has otherwise been approved by the Commission.
(vi)The project is not the subject of a pending compliance or enforcement matter before the Commission.
(vii)The project features related to the source, withdrawal, diversion or consumptive use of water, or the nature or quantity of water withdrawal, diversion or use associated with the project, as identified in the existing Commission approval, have not changed or will not change upon its transfer. For purposes of this paragraph, changes in the quantity of water withdrawal, diversion or consumptive use shall only relate to increases in quantity in excess of the approved quantity. If the project involves both a consumptive water use and an associated withdrawal, then the withdrawal must have been approved by the Commission.
(c)An existing Commission approval of a project that satisfies the following conditions may be conditionally transferred and the project sponsor may operate such project under the terms and conditions of the conditionally transferred approval, pending action by the Commission on the application submitted in accordance with paragraph (c)(3) below:
(1)The project satisfies all of the following conditions:
(i)The existing approval is less than ten
(10)years old.
(ii)The project is not the subject of a pending compliance or enforcement matter before the Commission.
(iii)The project features related to the source, withdrawal, diversion or consumptive use of water, or the nature or quantity of water withdrawal, diversion or consumptive use associated with the project, as identified in the existing Commission approval, have not changed or will not change upon its transfer. For purposes of this paragraph, changes in the quantity of water withdrawal, diversion or consumptive use shall only relate to increases in quantity in excess of the approved quantity.
(2)The project satisfies one or more of the following conditions:
(i)The project has an associated pre-compact consumptive water use.
(ii)The project has an associated diversion that was initiated prior to January 23, 1971.
(iii)The project has an associated groundwater withdrawal that was initiated prior to July 13, 1978 and that has not been approved by the Commission.
(iv)The project has an associated surface water withdrawal that was initiated prior to November 11, 1995 and that has not been approved by the Commission. The project has a consumptive water use approval and has an associated withdrawal that has not been approved by the Commission.
(3)The project sponsor submits an application to the Commission, in accordance with this part, within ninety
(90)days from the date of the change of ownership, requesting review and approval of the applicable consumptive use, diversion or withdrawals, identified in paragraph (c)(2) above, as a modification to the conditionally transferred approval.
(d)An existing Commission project approval for any project not satisfying the requirements of paragraphs
(b)or
(c)above may be conditionally transferred and the project sponsor may operate such project under the terms and conditions of the conditionally transferred approval, pending action by the Commission on an application the project sponsor shall submit to the Commission, provided that:
(1)The new project sponsor submits an application to the Commission, in accordance with this part, within ninety
(90)days from the date of the change of ownership, requesting review and approval of the project; and
(2)The project features related to the source, withdrawal, diversion or consumptive use of water, or the nature or quantity of water withdrawal, diversion or consumptive use associated with the project do not change pending review of the application. For purposes of this paragraph, changes in the quantity of water withdrawal, diversion or consumptive use shall only relate to increases in quantity in excess of the quantity withdrawn, diverted or consumptively used prior to the change of ownership. § 806.7 Concurrent project review by member jurisdictions.
(a)The Commission recognizes that agencies of the member jurisdictions will exercise their review authority and evaluate many proposed projects in the basin. The Commission will adopt procedures to assure compatibility between jurisdictional review and Commission review.
(b)To avoid duplication of work and to cooperate with other government agencies, the Commission may develop administrative agreements or other cooperative arrangements, in accordance with the procedures outlined in this part, with appropriate agencies of the member jurisdictions regarding joint review of projects. These agreements or arrangements may provide for joint efforts by staff, delegation of authority by an agency or the Commission, or any other matter to support cooperative review activities. Permits issued by a member jurisdiction agency shall be considered Commission approved if issued pursuant to an administrative agreement or other cooperative arrangement with the Commission specifically providing therefor. § 806.8 Waiver/modification. The Commission may, in its discretion, waive or modify any of the requirements of this or any other part of its regulations if the essential purposes set forth in § 806.2 continue to be served. Subpart B—Application Procedure § 806.10 Purpose of this subpart. The purpose of this subpart is to set forth procedures governing applications required by §§ 806.4, 806.5, 806.6 and 18 CFR part 801. § 806.11 Preliminary consultations.
(a)Any project sponsor of a project that is or may be subject to the Commission's jurisdiction is encouraged, prior to making application for Commission review, to request a preliminary consultation with the Commission staff for an informal discussion of preliminary plans for the proposed project. To facilitate preliminary consultations, it is suggested that the project sponsor provide a general description of the proposed project, a map showing its location and, to the extent available, data concerning dimensions of any proposed structures, anticipated water needs, and the environmental impacts.
(b)Preliminary consultation is optional for the project sponsor (except with respect to aquifer test plans, see § 806.12 but shall not relieve the sponsor from complying with the requirements of the compact or with this part. § 806.12 Constant-rate aquifer testing.
(a)Prior to submission of an application pursuant to § 806.13, a project sponsor seeking approval to withdraw or increase a withdrawal of groundwater shall perform a constant-rate aquifer test in accordance with this section.
(b)The project sponsor shall prepare a constant-rate aquifer test plan for prior review and approval by Commission staff before testing is undertaken. Such plan shall include a groundwater availability analysis to determine the availability of water during a 1-in-10-year recurrence interval.
(c)Unless otherwise specified, approval of a test plan is valid for two years from the date of approval.
(d)Approval of a test plan shall not be construed to limit the authority of the Commission to require additional testing or monitoring.
(e)The project sponsor may be required, at its expense, to provide temporary water supply if an aquifer test results in interference with an existing water use. § 806.13 Submission of application. Project sponsors of projects subject to the review and approval of the Commission under § 806.4, 806.5 or 806.6 shall submit an application and applicable fee to the Commission, in accordance with this Subpart. § 806.14 Contents of application.
(a)Applications shall include, but not be limited to, the following information and, where applicable, shall be submitted on forms and in the manner prescribed by the Commission.
(1)Identification of project sponsor including any and all proprietors, corporate officers or partners, the mailing address of the same, and the name of the individual authorized to act for the sponsor.
(2)Description of project and site in terms of:
(i)Project location, including global positioning system
(gps)coordinates accurate to within 10 meters.
(ii)Project purpose.
(iii)Proposed quantity of water to be withdrawn.
(iv)Proposed quantity of water to be consumed, if applicable.
(v)Constant-rate aquifer tests. The project sponsor shall provide the results of a constant-rate aquifer test with any application which includes a request for a groundwater withdrawal. The project sponsor shall obtain Commission approval of the test procedures prior to initiation of the constant-rate aquifer test.
(vi)Water use and availability.
(vii)All water sources and the date of initiation of each source.
(viii)Supporting studies, reports, and other information upon which assumptions and assertions have been based.
(ix)Plans for avoiding or mitigating for consumptive use.
(x)Copies of any correspondence with member jurisdiction agencies.
(xi)Evidence of compliance with applicable water registration requirements of the member jurisdiction in which the project is located.
(3)Anticipated impact of the proposed project on:
(i)Surface water characteristics (quality, quantity, flow regimen, other hydrologic characteristics).
(ii)Threatened or endangered species and their habitats.
(iii)Existing water withdrawals.
(4)Project estimated completion date and estimated construction schedule.
(b)The Commission may also require the project sponsor to submit the following information related to the project, in addition to the information required in paragraph
(a)of this section, as deemed necessary.
(1)Description of project and site in terms of:
(i)Engineering feasibility.
(ii)Ability of project sponsor to fund the project or action.
(iii)Identification and description of reasonable alternatives, the extent of their economic and technical investigation, and an assessment of their potential environmental impact. In the case of a proposed diversion, the project sponsor should include information that may be required by § 806.25 or any policy of the Commission relating to diversions.
(iv)Compatibility of proposed project with existing and anticipated uses.
(v)Anticipated impact of the proposed project on:
(A)Flood damage potential considering the location of the project with respect to the flood plain and flood hazard zones.
(B)Recreation potential.
(C)Fish and wildlife (habitat quality, kind and number of species).
(D)Natural environment uses (scenic vistas, natural and manmade travel corridors, wild and wilderness areas, wild, scenic and recreation rivers).
(E)Site development considerations (geology, topography, soil characteristics, adjoining and nearby land uses, adequacy of site facilities).
(F)Historical, cultural and archaeological impacts.
(2)Governmental considerations:
(i)Need for governmental services or finances.
(ii)Commitment of government to provide services or finances.
(iii)Status of application with other governmental regulatory bodies.
(3)Any other information deemed necessary by the Commission.
(c)A report about the project prepared for any other purpose, or an application for approval prepared for submission to a member jurisdiction, may be accepted by the Commission provided the said report or application addresses all necessary items on the Commission's form or listed in this section, as appropriate. § 806.15 Notice of application.
(a)The project sponsor shall, no later than 10 days after submission of an application to the Commission, notify each municipality in which the project is located, the county planning agency of each county in which the project is located, and each contiguous property owner that an application has been submitted to the Commission. The project sponsor shall also publish at least once in a newspaper of general circulation serving the area in which the project is located, a notice of the submission of the application no later than 10 days after the date of submission. All notices required under this section shall contain a description of the project, its purpose, requested water withdrawal and consumptive use amounts, location and address, electronic mail address, and phone number of the Commission.
(b)The project sponsor shall provide the Commission with a copy of the United States Postal Service return receipt for the municipal notification under
(a)and a proof of publication for the newspaper notice required under (a). The project sponsor shall also provide certification on a form provided by the Commission that it has made such other notifications as required under paragraph
(a)of this section, including a list of contiguous property owners notified under paragraph (a). Until these items are provided to the Commission, processing of the application will not proceed. § 806.16 Completeness of application.
(a)The Commission's staff shall review the application, and if necessary, request the project sponsor to provide any additional information that is deemed pertinent for proper evaluation of the project.
(b)An application deemed administratively incomplete will be returned to the project sponsor, who shall have 30 days to cure the administrative deficiencies. An application deemed technically deficient may be returned to the project sponsor, who shall have a period of time prescribed by Commission staff to cure the technical deficiencies. Failure to cure either administrative or technical deficiencies within the prescribed time may result in termination of the application process and forfeiture of any fees submitted.
(c)The project sponsor has a duty to provide information reasonably necessary for the Commission's review of the application. If the project sponsor fails to respond to the Commission's request for additional information, the Commission may terminate the application process, close the file and so notify the project sponsor. The project sponsor may reapply without prejudice by submitting a new application and fee. Subpart C—Standards for Review and Approval § 806.20 Purpose of this subpart. The purpose of this subpart is to set forth general standards that shall be used by the Commission to evaluate all projects subject to review and approval by the Commission pursuant to §§ 806.4, 806.5 and 806.6, and to establish special standards applicable to certain water withdrawals, consumptive uses and diversions. This subpart shall not be construed to limit the Commission's authority and scope of review. These standards are authorized under Sections 3.4(2), 3.4(8), 3.4(9), and 3.10 of the compact and are based upon, but not limited to, the goals, objectives, guidelines and criteria of the comprehensive plan. § 806.21 General standards.
(a)A project shall not be detrimental to the proper conservation, development, management, or control of the water resources of the basin.
(b)The Commission may modify and approve as modified, or may disapprove, a project if it determines that the project is not in the best interest of the conservation, development, management, or control of the basin's water resources, or is in conflict with the comprehensive plan.
(c)Disapprovals—other governmental jurisdictions.
(1)The Commission may suspend the review of any application under this part if the project is subject to the lawful jurisdiction of any member jurisdiction or any political subdivision thereof, and such member jurisdiction or political subdivision has disapproved or denied the project. Where such disapproval or denial is reversed on appeal, the appeal is final, and the project sponsor provides the Commission with a certified copy of the decision, the Commission shall resume its review of the application. Where, however, an application has been suspended hereunder for a period greater than three years, the Commission may terminate its review. Thereupon, the Commission shall notify the project sponsor of such termination and that the application fee paid by the project sponsor is forfeited. The project sponsor may reactivate the terminated docket by reapplying to the Commission, providing evidence of its receipt of all necessary governmental approvals and, at the discretion of the Commission, submitting new or updated information.
(2)The Commission may modify, suspend or revoke a previously granted approval if the project sponsor fails to obtain or maintain the approval of a member jurisdiction or political subdivision thereof having lawful jurisdiction over the project. § 806.22 Standards for consumptive uses of water.
(a)The project sponsors of all consumptive water uses subject to review and approval under § 806.4, 806.5 or 806.6 of this part shall comply with this section.
(b)Mitigation. All project sponsors whose consumptive use of water is subject to review and approval under § 806.4, 806.5 or 806.6 of this part shall mitigate such consumptive use. Except to the extent that the project involves the diversion of the waters out of the basin, public water supplies shall be exempt from the requirements of this section regarding consumptive use; provided, however, that nothing in this section shall be construed to exempt individual consumptive users connected to any such public water supply from the requirements of this section. Mitigation may be provided by one, or a combination of the following:
(1)During low flow periods as may be designated by the Commission for consumptive use mitigation.
(i)Reduce withdrawal from the approved source(s), in an amount equal to the project's total consumptive use, and withdraw water from alternative surface water storage or aquifers or other underground storage chambers or facilities approved by the Commission, from which water can be withdrawn for a period of 90 days without impact to surface water flows.
(ii)Release water for flow augmentation, in an amount equal to the project's total consumptive use, from surface water storage or aquifers, or other underground storage chambers or facilities approved by the Commission, from which water can be withdrawn for a period of 90 days without impact to surface water flows.
(iii)Discontinue the project's consumptive use, except that reduction of project sponsor's consumptive use to less than 20,000 gpd during periods of low flow shall not constitute discontinuance.
(2)Use, as a source of consumptive use water, surface storage that is subject to maintenance of a conservation release acceptable to the Commission. In any case of failure to provide the specified conservation release, such project shall provide mitigation in accordance with paragraph (3), below, for the calendar year in which such failure occurs, and the Commission will reevaluate the continued acceptability of the conservation release.
(3)Provide monetary payment to the Commission, for annual consumptive use, in an amount and manner prescribed by the Commission.
(4)Implement other alternatives approved by the Commission.
(c)Determination of manner of mitigation. The Commission will, in its sole discretion, determine the acceptable manner of mitigation to be provided by project sponsors whose consumptive use of water is subject to review and approval. Such a determination will be made after considering the project's location, source characteristics, anticipated amount of consumptive use, proposed method of mitigation and their effects on the purposes set forth in § 806.2 of this part, and any other pertinent factors. The Commission may modify, as appropriate, the manner of mitigation, including the magnitude and timing of any mitigating releases, required in a project approval.
(d)Quality of water released for mitigation. The physical, chemical and biological quality of water released for mitigation shall at all times meet the quality required for the purposes listed in § 806.2, as applicable.
(e)Approval by rule for consumptive uses.
(1)Any project whose sole source of water for consumptive use is a public water supply withdrawal, may be approved under this paragraph
(e)in accordance with the following, unless the Commission determines that the project cannot be adequately regulated under this approval by rule:
(i)Notification of Intent: No fewer than 90 days prior to construction or implementation of a project or increase above a previously approved quantity of consumptive use, the project sponsor shall:
(A)Submit a Notice of Intent
(NOI)on forms prescribed by the Commission, and the applicable application fee, along with any required attachments.
(B)Send a copy of the NOI to the appropriate agencies of the member state, and to each municipality and county in which the project is located.
(ii)Within 10 days after submittal of an NOI under (i), the project sponsor shall submit to the Commission proof of publication in a newspaper of general circulation in the location of the project, a notice of intent to operate under this permit by rule, which contains a sufficient description of the project, its purposes and its location. This notice shall also contain the address, electronic mail address and telephone number of the Commission.
(2)Metering, daily use monitoring and quarterly reporting. The project sponsor shall comply with metering, daily use monitoring and quarterly reporting as specified in § 806.30.
(3)Standard conditions. The standard conditions set forth in § 806.21 above shall apply to projects approved by rule.
(4)Mitigation. The project sponsor shall comply with mitigation in accordance with § 806.22 (b)(2) or (b)(3).
(5)Compliance with other laws. The project sponsor shall obtain all necessary permits or approvals required for the project from other federal, state or local government agencies having jurisdiction over the project. The Commission reserves the right to modify, suspend or revoke any approval under this paragraph
(e)if the project sponsor fails to obtain or maintain such approvals.
(6)The Commission will grant or deny approval to operate under this approval by rule and will notify the project sponsor of such determination, including the quantity of consumptive use approved.
(7)Approval by rule shall be effective upon written notification from the Commission to the project sponsor, shall expire 15 years from the date of such notification, and shall be deemed to rescind any previous consumptive use approvals. § 806.23 Standards for water withdrawals.
(a)The project sponsors of all withdrawals subject to review and approval under §§ 806.4, 806.5 or 806.6 of this part shall comply with the following standards, in addition to those required pursuant to § 806.21.
(b)Limitations on withdrawals.
(1)The Commission may limit withdrawals to the amount (quantity and rate) of water that is needed to meet the reasonably foreseeable needs of the project sponsor.
(2)The Commission may deny an application, limit or condition an approval to ensure that the withdrawal will not cause significant adverse impacts to the water resources of the basin. The Commission may consider, without limitation, the following in its consideration of adverse impacts: Lowering of groundwater or stream flow levels; rendering competing supplies unreliable; affecting other water uses; causing water quality degradation that may be injurious to any existing or potential water use; affecting fish, wildlife or other living resources or their habitat; causing permanent loss of aquifer storage capacity; or affecting low flow of perennial or intermittent streams.
(3)The Commission may impose limitations or conditions to mitigate impacts, including without limitation:
(i)Limit the quantity, timing or rate of withdrawal or level of drawdown.
(ii)Require the project sponsor to provide, at its own expense, an alternate water supply or other mitigating measures.
(iii)Require the project sponsor to implement and properly maintain special monitoring measures.
(iv)Require the project sponsor to implement and properly maintain stream flow protection measures.
(v)Require the project sponsor to develop and implement an operations plan acceptable to the Commission.
(4)The Commission may require the project sponsor to undertake the following, to ensure its ability to meet its present or reasonably foreseeable water needs from available groundwater or surface water without limitation:
(i)Investigate additional sources or storage options to meet the demand of the project.
(ii)Submit a water resource development plan that shall include, without limitation, sufficient data to address any supply deficiencies, identify alternative water supply options, and support existing and proposed future withdrawals. § 806.24 Standards for diversions.
(a)The project sponsors of all diversions subject to review and approval under §§ 806.4, 806.5 or 806.6 of this part shall comply with the following standards.
(b)For projects involving out-of-basin diversions, the following requirements shall apply.
(1)Project sponsors shall:
(i)Demonstrate that they have made good faith efforts to develop and conserve sources of water within the importing basin, and have considered other reasonable alternatives to the diversion.
(ii)Comply with the general standards set forth in §§ 801.3, 806.21, and 806.22, and the applicable requirements of this part relating to consumptive uses and withdrawals.
(2)In deciding whether to approve a proposed diversion out of the basin, the Commission shall also consider and the project sponsor shall provide information related to the following factors:
(i)Any adverse effects and cumulative adverse effects the project may have on the ability of the Susquehanna River Basin, or any portion thereof, to meet its own present and future water needs.
(ii)The location, amount, timing, purpose and duration of the proposed diversion and how the project will individually and cumulatively affect the flow of any impacted stream or river, and the freshwater inflow of the Chesapeake Bay, including the extent to which any diverted water is being returned to the basin or the bay.
(iii)Whether there is a reasonably foreseeable need for the quantity of water requested by the project sponsor and how that need is measured against reasonably foreseeable needs in the Susquehanna River Basin.
(iv)The amount and location of water being diverted to the Susquehanna River Basin from the importing basin.
(v)The proximity of the project to the Susquehanna River Basin.
(vi)The project sponsor's pre-compact member jurisdiction approvals to withdraw or divert the waters of the basin.
(vii)Historic reliance on sources within the Susquehanna River Basin.
(3)In deciding whether to approve a proposed diversion out of the basin, the Commission may also consider, but is not limited to, the factors set forth in paragraphs
(i)through
(v)of this paragraph (b)(3). The decision whether to consider the factors in this paragraph
(b)and the amount of information required for such consideration, if undertaken, will depend upon the potential for the proposed diversion to have an adverse impact on the ability of the Susquehanna River Basin, or any portion thereof, to meet its own present and future needs.
(i)The impact of the diversion on economic development within the Susquehanna River Basin, the member states or the United States of America.
(ii)The cost and reliability of the diversion versus other alternatives, including certain external costs, such as impacts on the environment or water resources.
(iii)Any policy of the member jurisdictions relating to water resources, growth and development.
(iv)How the project will individually and cumulatively affect other environmental, social and recreational values.
(v)Any land use and natural resource planning being carried out in the importing basin.
(c)For projects involving into-basin diversions, the following requirements shall apply.
(1)Project sponsors shall:
(i)Provide information on the source, amount, and location of the water being diverted to the Susquehanna River Basin from the importing basin.
(ii)Provide information on the water quality classification, if any, of the Susquehanna River Basin stream to which diverted water is being discharged and the discharge location or locations.
(iii)Demonstrate that they have applied for or received all applicable withdrawal or discharge permits or approvals related to the diversion, and demonstrate that the diversion will not result in water quality degradation that may be injurious to any existing or potential ground or surface water use. § 806.25 Water conservation standards. Any project sponsor whose project is subject to Commission approval under this part proposing to withdraw water either directly or indirectly (through another user) from groundwater or surface water sources, or both, shall comply with the following requirements:
(a)Public water supply. As circumstances warrant, a project sponsor of a public water supply shall:
(1)Reduce distribution system losses to a level not exceeding 20 percent of the gross withdrawal.
(2)Install meters for all users.
(3)Establish a program of water conservation that will:
(i)Require installation of water conservation devices, as applicable, by all classes of users.
(ii)Prepare and distribute literature to customers describing available water conservation techniques.
(iii)Implement a water pricing structure which encourages conservation.
(iv)Encourage water reuse.
(b)Industrial. Project sponsors who use water for industrial purposes shall:
(1)Designate a company representative to manage plant water use.
(2)Install meters or other suitable devices or utilize acceptable flow measuring methods for accurate determination of water use by various parts of the company operation.
(3)Install flow control devices which match the needs of the equipment being used for production.
(4)Evaluate and utilize applicable recirculation and reuse practices.
(c)Irrigation. Project sponsors who use water for irrigation purposes shall utilize irrigation systems properly designed for the sponsor's respective soil characteristics, topography and vegetation.
(d)Effective date. Notwithstanding the effective date for other portions of this part, this section shall apply to all groundwater and surface water withdrawals initiated on or after January 11, 1979. Subpart D—Terms and Conditions of Approval § 806.30 Monitoring. The Commission, as part of the project review, shall evaluate the proposed methodology for monitoring consumptive uses, water withdrawals and mitigating flows, including flow metering devices, stream gages, and other facilities used to measure the withdrawals or consumptive use of the project or the rate of stream flow. If the Commission determines that additional flow measuring, metering or monitoring devices are required, these shall be provided at the expense of the project sponsor, installed in accordance with a schedule set by the Commission, be accurate to within 5 percent, and shall be subject to inspection by the Commission at any time.
(a)Project sponsors of projects that are approved under this part shall:
(1)Measure and record on a daily basis, or such other frequency as may be approved by the Commission, the quantity of all withdrawals, using meters or other methods approved by the Commission.
(2)Certify, at the time of installation and no less frequently than once every 5 years, the accuracy of all measuring devices and methods to within 5 percent of actual flow, unless specified otherwise by the Commission.
(3)Maintain metering or other approved methods so as to provide a continuous, accurate record of the withdrawal or consumptive use.
(4)Measure groundwater levels in all approved production wells, as specified by the Commission.
(5)Measure groundwater levels at additional monitoring locations, as specified by the Commission.
(6)Measure water levels in surface storage facilities, as specified by the Commission.
(7)Measure stream flows, passby flows or conservation releases, as specified by the Commission, using methods and at frequencies approved by the Commission.
(b)Reporting.
(1)Project sponsors whose projects are approved under this section shall report to the Commission on a quarterly basis on forms and in a manner prescribed by the Commission all information recorded under paragraph
(a)of this section, unless otherwise specified by the Commission.
(2)Project sponsors whose projects are approved under this section shall report to the Commission:
(i)Violations of withdrawal limits and any conditions of approvals, within 5 days of such violation.
(ii)Loss of measuring or recording capabilities required under paragraph (a)(1) of this section, within 5 days after any such loss. § 806.31 Term of approvals.
(a)Approvals issued under this part shall have a term equal to the term of any accompanying member jurisdiction approval regulating the same subject matter, but not longer than 15 years, unless an alternate period is provided for in the Commission approval. If there is no such accompanying member jurisdiction approval, or if no term is specified in such accompanying member jurisdiction approval, the term of a Commission approval issued under this part shall be no longer than 15 years or the anticipated life of the project, whichever is less, unless an alternate period is provided for in the Commission approval.
(b)Commission approval of a project shall expire three years from the date of such approval if the withdrawal, diversion or consumptive use has not been commenced, unless an alternate period is provided for in the docket approval or such 3-year period is extended in writing by the Commission upon written request from the project sponsor submitted no later than 120 days prior to such expiration. The Commission may grant an extension, for a period not to exceed two years, only upon a determination that the delay is due to circumstances beyond the project sponsor's control and that there is a likelihood of project implementation within a reasonable period of time. The Commission may also attach conditions to the granting of such extensions, including modification of any terms of approval that the Commission may deem appropriate.
(c)If a withdrawal, diversion or consumptive use approved by the Commission for a project is discontinued for a period of five consecutive years, the approval shall be null and void, unless a waiver is granted in writing by the Commission, upon written request by the project sponsor demonstrating due cause and with notification thereof to the member jurisdiction in which the project is located, prior to the expiration of such period.
(d)If the Commission determines that a project has been abandoned, by evidence of nonuse for a period of time and under such circumstances that an abandonment may be inferred, the Commission may rescind the approval for such withdrawal, diversion or consumptive use.
(e)If a project sponsor submits an application to the Commission no later than six months prior to the expiration of its existing Commission approval, the existing approval will be deemed extended until such time as the Commission renders a decision on the application, unless the existing approval or a notification in writing from the Commission provide otherwise. § 806.32 Reopening/modification.
(a)Once a project is approved, the Commission, upon its own motion, or upon application of the project sponsor or any interested party, may at any time reopen any project approval and make additional orders that may be necessary to mitigate or avoid adverse impacts or to otherwise protect the public health, safety, and welfare or water resources. Whenever an application for reopening is filed by an interested party, the burden shall be upon that interested party to show, by a preponderance of the evidence, that a significant adverse impact or a threat to the public health, safety and welfare or water resources exists that warrants reopening of the docket.
(b)If the project sponsor fails to comply with any term or condition of a Commission approval, the Commission may issue an order suspending, modifying or revoking its approval of the project. The Commission may also, in its discretion, suspend, modify or revoke its approval if the project sponsor fails to obtain or maintain other federal, state or local approvals.
(c)For any previously approved project where interference occurs, the Commission may require a project sponsor to provide a temporary source of potable water at the project sponsor's expense, pending a final determination of causation by the Commission.
(d)The Commission, upon its own motion, may at any time reopen any project approval and make additional corrective modifications that may be necessary. § 806.33 Interest on fees. The Executive Director may establish interest to be paid on all overdue or outstanding fees of any nature that are payable to the Commission. § 806.34 Emergencies.
(a)Emergency certificates. The other requirements of these regulations notwithstanding, in the event of an emergency requiring immediate action to protect the public health, safety and welfare or to avoid substantial and irreparable injury to any person, property, or water resources when circumstances do not permit a review and determination in the regular course of the regulations in this part, the Executive Director, with the concurrence of the chairperson of the Commission and the commissioner from the affected member state, may issue an emergency certificate authorizing a project sponsor to take such action as the Executive Director may deem necessary and proper in the circumstances, pending review and determination by the Commission as otherwise required by this part.
(b)Notification and application. A project sponsor shall notify the Commission, prior to commencement of the project, that an emergency certificate is needed. If immediate action, as defined by this section, is required by a project sponsor and prior notice to the Commission is not possible, then the project sponsor must contact the Commission within one
(1)business day of the action. Notification may be by certified mail, facsimile, telegram, mailgram, or other form of written communication. This notification must be followed within one
(1)business day by submission of the following:
(1)A completed emergency application form or copy of the State or Federal emergency water use application if the project sponsor also is requesting emergency approval from either a state or federal agency.
(2)As a minimum, the application shall contain:
(i)Contact information.
(ii)Justification for emergency action (purpose).
(iii)Location map and schematic of proposed project.
(iv)Desired term of emergency use.
(v)Source(s) of the water.
(vi)Quantity of water.
(vii)Flow measurement system (such as metering).
(viii)Use restrictions in effect (or planned).
(ix)Description of potential adverse impacts and mitigating measures.
(x)Appropriate fee, unless reduced, waived or delayed with the approval of the Executive Director.
(c)Emergency certificate issuance. The Executive Director shall:
(1)Review and act on the emergency request as expeditiously as possible upon receipt of all necessary information stipulated in paragraph (b)(2) of this section.
(2)With the concurrence of the chairperson of the Commission and the commissioner from the affected member state, issue an emergency certificate for a term not to extend beyond the next regular business meeting of the Commission.
(3)Include conditions in the emergency certificate which may include, without limitation, monitoring of withdrawal and/or consumptive use amounts, measurement devices, public notification, and reporting, to assure minimal adverse impacts to the environment and other users.
(d)Post approval. Actions following issuance of emergency certificates may include, but are not limited to, the following:
(1)The Commission may, by resolution, extend the term of the emergency certificate, upon presentation of a request from the project sponsor accompanied by appropriate evidence that the conditions causing the emergency persist.
(2)If the condition is expected to persist longer than the specified extended term, the project sponsor must submit an application to the Commission for applicable water withdrawal or consumptive use, or the emergency certificate will terminate as specified. If the project sponsor has a prior Commission approval for the project, the project sponsor must submit an application to modify the existing docket accordingly.
(e)Early termination. With the concurrence of the chairperson of the Commission and the commissioner from the affected member state, the Executive Director may terminate an emergency certificate earlier than the specified duration if it is determined that an emergency no longer exists and/or the certificate holder has not complied with one or more special conditions for the emergency withdrawal or consumptive water use.
(f)Restoration or mitigation. Project sponsors are responsible for any necessary restoration or mitigation of environmental damage or interference with another user that may occur as a result of the emergency action. § 806.35 Fees. Project sponsors shall have an affirmative duty to pay such fees as established by the Commission. 3. Part 807 is added to read as follows. PART 807—WATER WITHDRAWAL REGISTRATION Sec. 807.1 Requirement. 807.2 Time limits. 807.3 Administrative agreements. 807.4 Effective date. 807.5 Definitions. Authority: Secs. 3.4(2) and (9), 3.8, 3.10 and 15.2, Pub. L. 91-575, 84 Stat. 1509 *et seq.* § 807.1 Requirement. In addition to any other requirements of Commission regulations, and subject to the consent of the affected member state to this requirement, any person withdrawing or diverting in excess of an average of 10,000 gpd for any consecutive 30-day period, from ground or surface water sources, as defined in part 806 of this chapter, shall register the amount of this withdrawal with the Commission and provide such other information as requested on forms prescribed by the Commission. § 807.2 Time limits.
(a)Except for agricultural water use projects, all registration forms shall be submitted within one year after May 11, 1995, or within six months of initiation of the water withdrawal or diversion, whichever is later; provided, however, that nothing in this section shall limit the responsibility of a project sponsor to apply for and obtain an approval as may be required under part 806 of this chapter. All registered withdrawals shall re-register with the Commission within five years of their initial registration, and at five-year intervals thereafter, unless the withdrawal is sooner discontinued. Upon notice by the Executive Director, compliance with a registration or reporting requirement, or both, of a member state that is substantially equivalent to this requirement shall be considered compliance with this requirement.
(b)Project sponsors whose existing agricultural water use projects i.e., projects coming into existence prior to March 31, 1997) withdraw or divert in excess of an average of 10,000 gpd for any consecutive 30-day period from a ground or surface water source shall register their use no later than March 31, 1997. Thereafter, project sponsors of new projects proposing to withdraw or divert in excess of 10,000 gpd for any consecutive 30-day period from a ground or surface water source shall be registered prior to project initiation. § 807.3 Administrative agreements. The Commission may complete appropriate administrative agreements or arrangements to carry out this registration requirement through the offices of member jurisdictions. Forms developed by the Commission shall apprise registrants of any such agreements or arrangements, and provide appropriate instructions to complete and submit the form. § 807.4 Effective date. This part shall be effective on January 1, 2007. § 807.5 Definitions. Terms used in this part shall be defined as set forth in § 806.3 of this chapter. 4. Part 808 is added to read as follows. PART 808—HEARINGS AND ENFORCEMENT ACTIONS Subpart A—Hearings Sec. 808.1 Public hearings. 808.2 Administrative appeals. 808.3 Hearing on administrative appeal. 808.4 Optional joint hearing. Subpart B—Compliance and Enforcement 808.10 Scope of subpart. 808.11 Duty to comply. 808.12 Investigative powers. 808.13 Notice of violation. 808.14 Orders. 808.15 Show cause proceeding. 808.16 Civil penalty criteria. 808.17 Enforcement of penalties, abatement or remedial orders. 808.18 Settlement by agreement. 808.19 Effective date. Authority: Secs. 3.5 (9), 3.5 (5), 3.8, 3.10, and 15.2, Pub. L. 91-575, 84 Stat. 1509 *et seq.* Subpart A—Conduct of Hearings § 808.1 Public hearings.
(a)A public hearing shall be conducted in the following instances:
(1)Addition of projects or adoption of amendments to the comprehensive plan, except as otherwise provided by Section 14.1 of the compact.
(2)Rulemaking, except for corrective amendments.
(3)Consideration of projects, except projects approved pursuant to memoranda of understanding with member jurisdictions.
(4)Hearing requested by a member jurisdiction.
(5)As otherwise required by the compact or Commission regulations.
(b)A public hearing may be conducted by the Commission in any form or style chosen by the Commission when in the opinion of the Commission, a hearing is either appropriate or necessary to give adequate consideration to issues relating to public health, safety and welfare, or protection of the environment, or to gather additional information for the record or consider new information, or to decide factual disputes in connection with matters pending before the Commission.
(c)Notice of public hearing. At least 20 days before any public hearing required by the compact, notices stating the date, time, place and purpose of the hearing including issues of interest to the Commission shall be published at least once in a newspaper or newspapers of general circulation in the area affected. Occasions when public hearings are required by the compact include, but are not limited to, amendments to the comprehensive plan, drought emergency declarations, and review and approval of diversions. In all other cases, at least 10 days prior to the hearing, notice shall be posted at the office of the Commission (or on the Commission Web site), mailed by first class mail to the parties who, to the Commission's knowledge, will participate in the hearing, and mailed by first class mail to persons, organizations and news media who have made requests to the Commission for notices of hearings or of a particular hearing. In the case of hearings held in connection with rulemaking, notices need only be forwarded to the directors of the New York Register, the Pennsylvania Bulletin, the Maryland Register, and the **Federal Register** , and it is sufficient that this notice appear only in the **Federal Register** at least 20 days prior to the hearing and in each individual state publication at least 10 days prior to any hearing scheduled in that state.
(d)Standard public hearing procedure.
(1)Hearings shall be open to the public. Participants to a public hearing shall be the project sponsor and the Commission staff. Participants may also be any person wishing to appear at the hearing and make an oral or written statement. Statements may favor or oppose the project/proposal, or may simply express a position without specifically favoring or opposing the project/proposal. Statements shall be made a part of the record of the hearing, and written statements may be received up to and including the last day on which the hearing is held, or within a reasonable time thereafter as may be specified by the presiding officer, which time shall be not less than 10 days nor more than 30 days, except that a longer time may be specified if requested by a participant.
(2)Participants (except the project sponsor and the Commission staff) are encouraged to file with the Commission at its headquarters written notice of their intention to appear at the hearing. The notice should be filed at least three days prior to the opening of the hearing.
(e)Representative capacity. Participants wishing to be heard at a public hearing may appear in person or be represented by an attorney or other representative. A governmental authority may be represented by one of its officers, employees or by a designee of the governmental authority. Any individual intending to appear before the Commission in a representative capacity on behalf of a participant shall give the Commission written notice of the nature and extent of his/her authorization to represent the person on whose behalf he/she intends to appear.
(f)Description of project. When notice of a public hearing is issued, there shall be available for inspection at the Commission offices all plans, summaries, maps, statements, orders or other supporting documents which explain, detail, amplify, or otherwise describe the project the Commission is considering. Instructions on where and how the documents may be obtained will be included in the notice.
(g)Presiding officer. A public hearing shall be presided over by the Commission chair, the Executive Director, or any member or designee of the Commission. The presiding officer shall have full authority to control the conduct of the hearing and make a record of the same.
(h)Transcript. Whenever a project involving a diversion of water is the subject of a public hearing, and at all other times deemed necessary by the Commission or the Executive Director, a written transcript of the hearing shall be made. Other public hearings may be electronically recorded and a transcript made only if deemed necessary by the Executive Director or general counsel. A certified copy of the transcript and exhibits shall be available for review during business hours at the Commission's headquarters to anyone wishing to examine them. Persons wishing to obtain a copy of the transcript of any hearing shall make arrangements to obtain it directly from the recording stenographer at their expense.
(i)The Commission may conduct any public hearings in concert with any other agency of a member jurisdiction. § 808.2 Administrative appeals.
(a)A project sponsor or other person aggrieved by any action or decision of the Commission or Executive Director, may file a written appeal requesting a hearing. Such appeal shall be filed with the Commission within 30 days of that action or decision.
(b)The appeal shall identify the specific action or decision for which a hearing is requested, the date of the action or decision, the interest of the person requesting the hearing in the subject matter of the proposed hearing, and a summary statement setting forth the basis for objecting to or seeking review of the action or decision.
(c)Any request filed more than 30 days after an action or decision will be deemed untimely and such request for a hearing shall be considered denied unless upon due cause shown the Commission, by unanimous vote, otherwise directs. Receipt of requests for hearings, pursuant to this section, whether timely filed or not, shall be submitted by the Executive Director to the commissioners for their information.
(d)Hearings may be conducted by one or more members of the Commission, by the Executive Director, or by such other hearing officer as the Commission may designate.
(1)The petitioner or an intervener may also request a stay of the action or decision giving rise to the appeal pending final disposition of the appeal, which stay may be granted or denied by the Executive Director after consultation with the Commission chair and the member from the affected jurisdiction.
(2)The request for a stay shall include affidavits setting forth facts upon which issuance of the stay may depend and the citations of applicable legal authority, if any.
(3)In addition to the contents of the request itself, the Executive Director, in granting or denying the request for stay, will consider the following factors:
(i)Irreparable harm to the petitioner or intervener.
(ii)The likelihood that the petitioner or intervener will prevail on the merits.
(iii)The likelihood of injury to the public or other parties.
(e)The Commission shall grant the hearing request pursuant to this section if it determines that an adequate record with regard to the action or decision is not available, the case involves a determination by the Executive Director or staff which requires further action by the Commission, or that the Commission has found that an administrative review is necessary or desirable. If the Commission denies any request for a hearing in a contested case, the party seeking such a hearing shall be limited to such remedies as may be provided by the compact or other applicable law or court rule.
(f)If administrative review is granted, the Commission shall refer the matter for hearing, to be held in accordance with § 808.3, and appoint a hearing officer.
(g)Intervention.
(1)If a hearing is scheduled, a notice of intervention may be filed with the Commission by persons other than the petitioner no later than 10 days before the date of the hearing. The notice of intervention shall state the interest of the person filing such notice, and the specific grounds of objection to the action or decision or other grounds for appearance.
(2)Any person filing a notice of intervention whose legal rights may be affected by the decision rendered hereunder shall be deemed an interested party. Interested parties shall have the right to be represented by counsel, to present evidence and to examine and cross-examine witnesses. In addition to interested parties, any persons having information concerning the subject matter of any hearing scheduled hereunder for inclusion in the record may submit a verified written statement to the Commission. Any interested party may submit a request to examine or cross-examine any person who submits a written statement. In the absence of a request for examination of such person, all verified written statements submitted shall be included with the record and such statements may be relied upon to the extent determined by the Hearing Officer or the Commission.
(h)Notice of any hearing to be conducted pursuant to this section shall comply with the provisions of Section 15.4
(b)of the compact relating to public notice unless otherwise directed by the Commission. In addition, both the petitioner and any interveners shall provide notice of their filings under this section to the list of additional interested parties compiled by the Commission under § 806.14 (a).
(i)Where a request for an appeal is made, the 90-day appeal period set forth in Section 3.10
(6)and Federal reservation
(o)of the compact shall not commence until the Commission has either denied the request for or taken final action on an administrative appeal.
(j)Where the request for appeal relates to an action taken on a project, any hearing conducted pursuant to this section shall be convened in the general vicinity of the project location. § 808.3 Hearings on administrative appeal.
(a)Unless otherwise agreed to by the Commission and the party requesting an administrative appeal under § 808.2 of this part, the following procedures shall govern the conduct of hearing on an administrative appeal.
(b)Hearing procedure.
(1)The hearing officer shall have the power to rule upon offers of proof and the admissibility of evidence, to regulate the course of the hearing, to set the location or venue of the hearing, to hold conferences for the settlement or simplification of issues and the stipulation of facts, to determine the proper parties to the hearing, to determine the scope of any discovery procedures, to delineate the hearing issues to be adjudicated, and to take notice of judicially cognizable facts and general, technical, or scientific facts. The hearing officer may, with the consent of the parties, conduct all or part of the hearing or related proceedings by telephone conference call or other electronic means.
(2)The hearing officer shall cause each witness to be sworn or to make affirmation.
(3)Any party to a hearing shall have the right to present evidence, to examine and cross-examine witnesses, submit rebuttal evidence, and to present summation and argument.
(4)When necessary, in order to prevent undue prolongation of the hearing, the hearing officer may limit the number of times any witness may testify, the repetitious examination or cross-examination of witnesses, or the extent of corroborative or cumulative testimony.
(5)The hearing officer shall exclude irrelevant, immaterial or unduly repetitious evidence, but the parties shall not be bound by technical rules of evidence, and all relevant evidence of reasonably probative value may be received provided it shall be founded upon competent, material evidence which is substantial in view of the entire record.
(6)Any party may appear and be heard in person or be represented by an attorney at law who shall file an appearance with the Commission.
(7)Briefs and oral argument may be required by the hearing officer and may be permitted upon request made prior to the close of the hearing by any party. They shall be part of the record unless otherwise ordered by the presiding officer.
(8)The hearing officer may, as he/she deems appropriate, issue subpoenas in the name of the Commission requiring the appearance of witnesses or the production of books, papers, and other documentary evidence for such hearings.
(9)A record of the proceedings and evidence at each hearing shall be made by a qualified stenographer designated by the Executive Director. Where demanded by the petitioner, or any other person who is a party to the appeal proceedings, or where deemed necessary by the Hearing Officer, the testimony shall be transcribed. In those instances where a transcript of proceedings is made, two copies shall be delivered to the Commission. The petitioner or other persons who desire copies shall obtain them from the stenographer at such price as may be agreed upon by the stenographer and the person desiring the transcript.
(c)Staff and other expert testimony. The Executive Director shall arrange for the presentation of testimony by the Commission's technical staff and other experts, as he/she may deem necessary or desirable, to be incorporated in the record to support the administrative action, determination or decision which is the subject of the hearing.
(d)Written testimony. If the direct testimony of an expert witness is expected to be lengthy or of a complex, technical nature, the presiding officer may order that such direct testimony be submitted to the Commission in sworn, written form. Copies of said testimony shall be served upon all parties appearing at the hearing at least 10 days prior to said hearing. Such written testimony, however, shall not be admitted whenever the witness is not present and available for cross-examination at the hearing unless all parties have waived the right of cross-examination.
(e)Assessment of costs.
(1)Whenever a hearing is conducted, the costs thereof, as herein defined, shall be assessed by the presiding officer to the petitioner or such other party as the hearing officer deems equitable. For the purposes of this section, costs include all incremental costs incurred by the Commission, including, but not limited to, hearing officer and expert consultants reasonably necessary in the matter, stenographic record, rental of the hall and other related expenses.
(2)Upon the scheduling of a matter for hearing, the hearing officer shall furnish to the petitioner a reasonable estimate of the costs to be incurred under this section. The project sponsor may be required to furnish security for such costs either by cash deposit or by a surety bond of a corporate surety authorized to do business in a member state.
(3)A party to an appeal under this section who desires to proceed in forma pauperis shall submit an affidavit to the Commission requesting the same and showing in detail the assets possessed by the party, and other information indicating the reasons why that party is unable to pay costs incurred under this section or to give security for such costs. The Commission may grant or refuse the request based upon the contents of the affidavit or other factors, such as whether it believes the appeal or intervention is taken in good faith.
(f)Findings and report. The hearing officer shall prepare a report of his/her findings and recommendations based on the record of the hearing. The report shall be served by personal service or certified mail (return receipt requested) upon each party to the hearing or its counsel. Any party may file objections to the report. Such objections shall be filed with the Commission and served on all parties within 20 days after the service of the report. A brief shall be filed together with objections. Any replies to the objections shall be filed and served on all parties within 10 days of service of the objections. Prior to its decision on such objections, the Commission may grant a request for oral argument upon such filing.
(g)Action by the Commission. The Commission will act upon the findings and recommendations of the presiding officer pursuant to law. The determination of the Commission will be in writing and shall be filed in Commission records together with any transcript of the hearing, report of the hearing officer, objections thereto, and all plans, maps, exhibits and other papers, records or documents relating to the hearing. § 808.4 Optional joint hearing.
(a)The Commission may order any two or more public hearings involving a common or related question of law or fact to be consolidated for hearing on any or all of the matters at issue in such hearings.
(b)Whenever designated by a department, agency or instrumentality of a member jurisdiction, and within any limitations prescribed by the designation, a hearing officer designated pursuant to § 808.2 may also serve as a hearing officer, examiner or agent pursuant to such additional designation and may conduct joint hearings for the Commission and for such other department, agency or instrumentality. Pursuant to the additional designation, a hearing officer shall cause to be filed with the department, agency, or instrumentality making the designation, a certified copy of the transcript of the evidence taken before him/her and, if requested, of his/her findings and recommendations. Neither the hearing officer nor the Susquehanna River Basin Commission shall have or exercise any power or duty as a result of such additional designation to decide the merits of any matter arising under the separate laws of a member jurisdiction (other than the compact). Subpart B—Compliance and Enforcement § 808.10 Scope of subpart. This subpart shall be applicable where there is reason to believe that a person may have violated any provision of the compact, or the Commission's rules, regulations, orders, approvals, docket conditions, or any other requirements of the Commission. The said person shall hereinafter be referred to as the alleged violator. § 808.11 Duty to comply. It shall be the duty of any person to comply with any provision of the compact, or the Commission's rules, regulations, orders, approvals, docket conditions, or any other requirements of the Commission. § 808.12 Investigative powers.
(a)The Commission or its agents or employees, at any reasonable time and upon presentation of appropriate credentials, may inspect or investigate any person or project to determine compliance with any provisions of the compact, or the Commission's rules, regulations, orders, approvals, docket conditions, or any other requirements of the Commission. Such employees or agents are authorized to conduct tests or sampling; to take photographs; to perform measurements, surveys, and other tests; to inspect the methods of construction, operation, or maintenance; to inspect all measurement equipment; and to audit, examine, and copy books, papers, and records pertinent to any matter under investigation. Such employees or agents are authorized to take any other action necessary to assure that any project is constructed, operated and maintained in accordance with any provisions of the compact, or the Commission's rules, regulations, orders, approvals, docket conditions, or any other requirements of the Commission.
(b)Any person shall allow authorized employees or agents of the Commission, without advance notice, at any reasonable time and upon presentation of appropriate credentials, and without delay, to have access to and to inspect all areas where a project is being constructed, operated, or maintained.
(c)Any person shall provide such information to the Commission as the Commission may deem necessary to determine compliance with any provisions of the compact, or the Commission's rules, regulations, orders, approvals, docket conditions, or any other requirements of the Commission. The person submitting information to the Commission shall verify that it is true and accurate to the best of the knowledge, information, and belief of the person submitting such information. Any person who knowingly submits false information to the Commission shall be subject to civil penalties as provided in the compact and criminal penalties under the laws of the member jurisdictions relating to unsworn falsification to authorities. § 808.13 Notice of violation. When the Executive Director or his/her designee issues a Notice of Violation
(NOV)to an alleged violator, such NOV will:
(a)List the violations that are alleged to have occurred.
(b)State a date by which the alleged violator shall respond to the NOV. § 808.14 Orders.
(a)Whether or not an NOV has been issued, where exigent circumstances warrant, the Executive Director may issue an order directing an alleged violator to cease and desist any action or activity to the extent such action or activity constitutes an alleged violation, or may issue any other order related to the prevention of further violations, or the abatement or remediation of harm caused by the action or activity.
(b)If the project sponsor fails to comply with any term or condition of a docket approval, the commissioners may issue an order suspending, modifying or revoking approval of the docket. The commissioners may also, in their discretion, suspend, modify or revoke a docket approval if the project sponsor fails to obtain or maintain other federal, state or local approvals.
(c)The commissioners may issue such other orders as may be necessary to enforce any provision of the compact, the Commission's rules or regulations, orders, approvals, docket conditions, or any other requirements of the Commission.
(d)It shall be the duty of any person to proceed diligently to comply with any order issued pursuant to this section. § 808.15 Show cause proceeding.
(a)The Executive Director may issue an order requiring an alleged violator to appear before the Commission and show cause why a penalty should not be assessed in accordance with the provisions of this chapter and Section 15.17 of the compact. The order to the alleged violator shall:
(1)Specify the nature and duration of violation(s) that is alleged to have occurred.
(2)Set forth the date and time on which, and the location where, the alleged violator shall appear before the Commission.
(3)Set forth any information to be submitted or produced by the alleged violator.
(4)Identify the limits of the civil penalty that will be recommended to the Commission.
(5)Name the individual(s) who has been appointed as the enforcement officer(s) in this matter pursuant to paragraph
(b)of this section.
(b)Simultaneous with the issuance of the order to show cause, the Executive Director shall designate a staff member(s) to act as prosecuting officer(s).
(c)In the proceeding before the Commission, the prosecuting officer(s) shall present the facts upon which the alleged violation is based and may call any witnesses and present any other supporting evidence.
(d)In the proceeding before the Commission, the alleged violator shall have the opportunity to present both oral and written testimony and information, call such witnesses and present such other evidence as may relate to the alleged violation(s).
(e)The Commission shall require witnesses to be sworn or make affirmation, documents to be certified or otherwise authenticated and statements to be verified. The Commission may also receive written submissions or oral presentations from any other persons as to whether a violation has occurred and any resulting adverse consequences.
(f)The prosecuting officer(s) shall recommend to the Commission the amount of the penalty to be imposed. Based upon the record presented to the Commission, the Commission shall determine whether a violation(s) has occurred that warrants the imposition of a penalty pursuant to Section 15.17 of the compact. If it is found that such a violation(s) has occurred, the Commission shall determine the amount of the penalty to be paid, in accordance with § 808.16. § 808.16 Civil penalty criteria.
(a)In determining the amount of any civil penalty or any settlement of a violation, the Commission shall consider:
(1)Previous violations, if any, of any provision of the compact, the Commission's rules or regulations, orders, approvals, docket conditions or any other requirements of the Commission.
(2)The intent of the alleged violator.
(3)The extent to which the violation caused adverse consequences to public health, safety and welfare or to water resources.
(4)The costs incurred by the Commission or any member jurisdiction relating to the failure to comply with any provision of the compact, the Commission's rules or regulations, orders, approvals, docket conditions or any other requirements of the Commission.
(5)The extent to which the violator has cooperated with the Commission in correcting the violation and remediating any adverse consequences or harm that has resulted therefrom.
(6)The extent to which the failure to comply with any provision of the compact, the Commission's rules or regulations, orders, approvals, docket conditions or any other requirements of the Commission was economically beneficial to the violator.
(7)The length of time over which the violation occurred and the amount of water used during that time period.
(b)The Commission retains the right to waive any penalty or reduce the amount of the penalty recommended by the prosecuting officer under § 808.15(f) should it determine, after consideration of the factors in paragraph
(a)of this section, that extenuating circumstances justify such action. § 808.17 Enforcement of penalties, abatement or remedial orders. Any penalty imposed or abatement or remedial action ordered by the Commission or the Executive Director shall be paid or completed within such time period as shall be specified in the civil penalty assessment or order. The Executive Director and Commission counsel are authorized to take such additional action as may be necessary to assure compliance with this subpart. If a proceeding before a court becomes necessary, the penalty amount determined in accordance with § 808.15(f) shall constitute the penalty amount recommended by the Commission to be fixed by the court pursuant to Section 15.17 of the compact. § 808.18 Settlement by agreement.
(a)An alleged violator may offer to settle an enforcement proceeding by agreement. The Executive Director shall submit to the Commission any offer of settlement proposed by an alleged violator. No settlement will be submitted to the Commission by the Executive Director unless the alleged violator has indicated, in writing, acceptance of the terms of the agreement and the intention to comply with all requirements of the settlement agreement, including advance payment of any settlement amount or completion of any abatement or remedial action within the time period provided or both. If the Commission determines not to approve a settlement agreement, the Commission may proceed with an enforcement action in accordance with this subpart.
(b)In the event the violator fails to carry out any of the terms of the settlement agreement, the Commission may reinstitute a civil penalty action and any other applicable enforcement action against the alleged violator. § 808.19 Effective date. This part shall be effective on January 1, 2007. Dated: December 5, 2006. Thomas W. Beauduy, Deputy Director. [FR Doc. E6-21674 Filed 12-28-06; 8:45 am] BILLING CODE 7040-01-P 71 250 Friday, December 29, 2006 Rules and Regulations Part IV Department of Transportation Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, et al. Hazardous Materials: Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions; Final Rule DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 175, 176, 178 and 180 [Docket No. PHMSA-06-25476 (HM-215I)] RIN 2137-AE16 Hazardous Materials: Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Oganization's Technical Instructions AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. SUMMARY: This final rule revises the Hazardous Materials Regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations and vessel stowage requirements. These revisions will harmonize the Hazardous Materials Regulations with certain recent changes to the International Maritime Dangerous Goods Code, the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, and the United Nations Recommendations on the Transport of Dangerous Goods. DATES: *Effective date:* January 1, 2007. *Voluntary Compliance Date:* PHMSA is authorizing voluntary compliance beginning January 1, 2007. *Delayed Compliance Date:* Unless otherwise specified, mandatory compliance with the amendments adopted in this final rule is required beginning January 1, 2008. *Incorporation by Reference Date:* The incorporation by reference of the publications adopted in § 171.7 of this final rule has been approved by the Director of the Federal Register as of January 1, 2007. FOR FURTHER INFORMATION CONTACT: Charles Betts, Office of Hazardous Materials Standards, telephone
(202)366-8553, or Shane Kelley, International Standards, telephone
(202)366-0656, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: Contents I. Background II. Overview A. Amendments Adopted in this Final Rule B. International Standards Not Being Adopted in this Final Rule III. Section-By-Section IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for this Rulemaking B. Executive Order 12866 and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Paperwork Reduction Act G. Regulatory Identifier Number
(RIN)H. Unfunded Mandates Reform Act I. Environmental Assessment J. Privacy Act I. Background By notice of proposed rulemaking
(NPRM)published August 31, 2006, the Pipeline and Hazardous Materials Safety Administration (PHMSA, we) published proposed revisions to the hazard communication, classification, and packaging requirements of the Hazardous Materials Regulations (HMR), 49 CFR parts 171-180, to align with updates and revisions to the United Nations Recommendations on the Transport of Dangerous Goods (UN Recommendations), the International Maritime Dangerous Goods
(IMDG)Code and the International Civil Aviation Organization
(ICAO)Technical Instructions for the Transport of Dangerous Goods by Air. The UN Recommendations are amended and updated biennially by the UN Committee of Experts on the Transport of Dangerous Goods and on the Globally Harmonized System of Classification and Labeling of Chemicals and serve as the basis for national, regional, and international modal regulations, including the IMDG Code, and the ICAO Technical Instructions. The harmonization of domestic and international standards becomes increasingly important as the volume of hazardous materials transported in international commerce grows. Harmonization facilitates international trade by minimizing the costs and other burdens of complying with multiple or inconsistent safety requirements for transportation of hazardous materials to and from the United States. By facilitating compliance, harmonization also tends to enhance safety for international movements, but only if the international standards themselves provide an appropriate level of safety. To that end, PHMSA actively participates in the development of international standards for the transportation of hazardous materials, frequently advocating the adoption in international standards of particular HMR requirements. When considering the adoption of international standards under the HMR, we review and consider each amendment on its own merit. Each amendment is considered on the basis of its overall impact on transportation safety and the economic implications associated with its adoption into the HMR. Our goal is to harmonize without diminishing the level of safety currently provided by the HMR and without imposing undue burdens on the regulated public. To maintain alignment of the HMR with international requirements, in this final rule, we are incorporating changes into the HMR based on the Fourteenth revised edition of the UN Recommendations and UN Manual of Tests and Criteria, Amendment 33 to the IMDG Code, and the 2007-2008 ICAO Technical Instructions, which become effective January 1, 2007. We are also addressing petitions for rulemaking concerning harmonization with international standards and additional measures to facilitate international transportation. The comment period for the proposed rule closed on October 16, 2006. PHMSA received 28 comments in response to the proposed rulemaking. The following individuals, companies and organizations submitted comments:
(1)Georgia Department of Public Safety (GPS; PHMSA-06-25476-4);
(2)North American Transportation Consultants (NATC; PHMSA-06-25476-7);
(3)Lawrence Laude (Laude; PHMSA-06-25476-8);
(4)United Parcel Service (UPS; PHMSA-06-25476-9);
(5)Christopher L. Botteri (Botteri; PHMSA-06-25476-10);
(6)Dennis Eisenhofer (Eisenhofer; PHMSA-06-25476-11);
(7)HMT Associates (HMT; PHMSA-06-25476-12);
(8)Phillip Adamo (Adamo; PHMSA-06-25476-13);
(9)Institute of Makers of Explosives (IME; PHMSA-06-25476-14);
(10)J & S Warehouse (J&S; PHMSA-06-25476-17);
(11)Rising Star Transportation (RST; PHMSA-06-25476-18);
(12)National Tank Truck Carriers (NTTC; PHMSA-06-25476-19);
(13)Air Products and Chemicals (AP&C; PHMSA-06-25476-20);
(14)All Chemical Transport and Leasing (AllChem; PHMSA-06-25476-21);
(15)International Sanitary Supply Association (ISSA; PHMSA-06-25476-22);
(16)American Trucking Association (ATA; PHMSA-06-25476-23);
(17)The Chlorine Institute (CI; PHMSA-06-25476-24);
(18)International Vessel Operators Hazardous Materials Association, Inc. (VOHMA; PHMSA-06-25476-25);
(19)Arkema (Arkema; PHMSA-06-25476-26);
(20)Unidentified commenter (UC1; PHMSA-06-25476-28);
(21)Laboratory Corporation of America Holdings (LabCorp; PHMSA-06-25476-29);
(22)Unidentified commenter (UC2; PHMSA-06-25476-30);
(23)National Association of Chemical Distributors (NACD; PHMSA-06-25476-31);
(24)National Paint & Coating Association (NPCA; PHMSA-06-25476-33);
(25)Dangerous Goods Advisory Council (DGAC; PHMSA-06-25476-34);
(26)Degussa Corporation (Degussa; PHMSA-06-25476-35);
(27)Federal Express (FedEx; PHMSA-06-25476-36): and
(28)Association of HazMat Shippers, Inc. (AHS; PHMSA-06-25476-37). Commenters were supportive of PHMSA's efforts to harmonize the HMR with international standards. Many of the proposals in the NPRM are fully supported by commenters, while others received little or no comment; these amendments are adopted as proposed. Several comments were beyond the scope of this rulemaking and are not addressed in this final rule. In the NPRM, we requested comments on whether certain amendments should be tied to a sunset provision. We received six comments (GPS, IME, NTTC, AP&C, ATA, and NPCA) opposing the idea of a sunset provision. We agree with the commenters that for an international harmonization rulemaking, sunsetting some or all of the regulatory provisions is not appropriate. Therefore, we are not adopting a sunset provision for the amendments in this final rule. Other comments are discussed in the Section-by-Section Review. II. Overview A. Amendments Adopted in This Final Rule In this final rule, we are adopting the following amendments to the HMR: • Adoption of a single shipping paper description sequence (identification number, proper shipping name, hazard class or division, packing group). • Requirement to indicate the net quantity of hazardous material per package on the shipping paper if transportation is by aircraft. • Incorporation by reference of the updated ICAO Technical Instructions, IMDG Code, and UN Recommendations. • Amendments to the Hazardous Materials Table
(HMT)to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, passenger and cargo aircraft maximum quantity limitations and vessels stowage provisions. • Revision of the ORGANIC PEROXIDE label and placard. • Revision of the classification criteria for PG III flammable liquids. • Revision of the classification criteria and packing group assignments for Division 6.1 materials. • Requirements for the transportation of fuel cells containing flammable liquid. • Adoption of a one-packet limit for matches carried by airline passengers or crew members. B. International Standards Not Being Adopted in This Final Rule This final rule makes changes to the HMR based on amendments to the Fourteenth revised edition of the UN Recommendations, Amendment 33 to the IMDG Code, and the 2007-2008 ICAO Technical Instructions, which become effective January 1, 2007. However, we are not adopting all of the amendments to those documents into the HMR. In many cases, amendments to the international regulations have not been adopted because the framework or structure of the HMR makes adoption unnecessary. In other cases, we have handled, or will be handling, the amendments in separate rulemaking proceedings. For example, we addressed requirements related to the transportation of infectious substances in a final rule published June 2, 2006, under Docket HM-226A (71 FR 32244). Similarly, we adopted amendments relating to the use of UN cylinders and pressure vessels in a final rule published June 12, 2006, under Docket HM-220E (71 FR 33858). One of the goals of this rulemaking is to continue to maintain consistency between the HMR and the international requirements. We are not striving to make the HMR identical to the international regulations but rather to remove or avoid potential barriers to international transportation. Below is a listing of significant amendments to the international regulations that we are not adopting in this final rule with a brief explanation of why the amendment was not included: • *Environmentally hazardous substances.* The UN Recommendations include new defining criteria for environmentally hazardous substances. The UN criteria have not yet been adopted by ICAO and IMO. We will consider these changes in a separate rulemaking proceeding. • *Hazardous materials security.* Like the HMR, the UN Recommendations require carriers, consignors and others engaged in the transport of “high consequence” dangerous goods to adopt, implement and comply with a security plan that addresses the transportation risks associated with these materials. A major difference between the HMR and the UN Recommendations is the quantity of hazardous material that triggers the requirement for a security plan. On September 21, 2006, PHMSA published an advance notice of proposed rulemaking (71 FR 55156) to consider revisions to the list of hazardous materials that triggers security plan requirements under the HMR. We will consider whether the HMR list should be harmonized with the UN Recommendations list as part of this initiative. • *Requirements for radioactive materials.* We are not adopting provisions pertaining to the transportation of Class 7 (radioactive) materials. Amendments to requirements pertaining to the transportation of Class 7 materials are based on changes contained in the International Atomic Energy Agency
(IAEA)publication, “IAEA Safety Standards Series: Regulations for the Safe Transport of Radioactive Materials.” Due to their complexity, these changes will be addressed in a separate rulemaking. • *Default classification system for fireworks.* We are not adopting these provisions of the UN Recommendations because we do not believe the UN classification system provides an equivalent level of safety to the current HMR requirements. Under the HMR, fireworks must be classed and approved by the Associate Administrator for Hazardous Materials Safety; the approvals are based on American Pyrotechnic Association Standard 87-1. • *Fuel cells.* We are not adopting provisions for the carriage of fuel cell cartridges in the passenger cabin of a passenger aircraft that were adopted by ICAO. Also, we are not adopting the packaging provisions for the transport of “Hydrogen in a metal hydride storage system,” (UN3468), as adopted by ICAO. Currently, the HMR allow transportation of these storage systems by motor vehicle and rail under the terms of a special permit and by motor vehicle, rail, cargo vessel and cargo aircraft with approval of the Associate Administrator. These issues will be considered in a separate rulemaking proceeding. • *Marking of Limited Quantity shipments.* The ICAO Technical Instructions include a marking requirement for packages containing a limited quantity of hazardous material. The mark consists of the identification number of the material placed within a square-on-point border. The marking is anticipated to become effective January 1, 2009. Except for transportation by aircraft, this marking is currently authorized under the HMR as an alternative to marking the proper shipping name on the package; we are allowing continued use of this marking to minimize transportation costs and provide flexibility. III. Section-by-Section Review Part 171 Section 171.7 Section 171.7 lists the standards incorporated by reference into the HMR. We are updating the incorporation by reference materials for the ICAO Technical Instructions, the IMDG Code, the UN Recommendations and the UN Manual of Tests and Criteria. The updated editions of these standards become effective January 1, 2007. We did not receive comments opposing these incorporations by reference; therefore the standards are updated as follows: • The ICAO Technical Instructions, 2007-2008 Edition. • The IMDG Code, Amendment 33-06. • The UN Recommendations, Fourteenth revised edition. • The UN Manual of Tests and Criteria, Fourth revised edition (2003), and Addendum 2 (2004). Section 171.14 This section lists specific transition periods for certain provisions adopted into the HMR. Comments pertaining to transition periods are discussed below. Paragraph
(b)lists transitional provisions related to revised placarding requirements. In this final rule, we are removing paragraph
(b)because the transition period has expired. Paragraph
(d)of this section specifies transitional provisions for previously adopted amendments intended to harmonize the HMR with international standards. We are revising this paragraph to provide specific transitional provisions for certain amendments in this final rule. The effective date of this final rule is January 1, 2007, and the mandatory compliance date is January 1, 2008. We are permitting voluntary compliance as of January 1, 2007, to correspond with the effective implementation dates of the 2007-2008 ICAO Technical Instructions and Amendment 33-06 of the IMDG Code. This authorization allows shippers to prepare their international shipments in accordance with international standards that will become effective on January 1, 2007. Paragraph
(e)of this section contains an outdated transitional provision. In this final rule, we are replacing the outdated transitional provision with a new paragraph
(e)that permits use for domestic shipments of the shipping description sequences in effect on December 31, 2006, until January 1, 2013. See the § 172.202 preamble discussion for a complete explanation of the shipping description sequence issue. Paragraph
(f)of this section contains an outdated transitional provision. We are revising paragraph
(f)by removing the current provision and adding a transitional provision to allow continued display of Division 5.2 labels and placards conforming to the specifications in effect on December 31, 2006, until January 1, 2014 for transportation by highway and until January 1, 2011 for transportation by rail, vessel or aircraft. See the §§ 172.407, 172.427 and 172.552 preamble discussions for a complete explanation of this issue. In new paragraph (g), we are allowing continued use of the Class 3 and Division 6.1 classification criteria and packing group assignments in effect on December 31, 2006, until January 1, 2012. See §§ 173.120 and 174.133 preamble discussions for a complete explanation of this issue. Part 172 Section 172.101 Section 172.101 contains the Hazardous Materials Table
(HMT)and explanations for each of the columns in the HMT. Paragraph
(d)of this section addresses column 3 of the HMT containing the hazard class or division for each specific material listed in the HMT. Paragraph (d)(4) addresses entries classed as combustible liquids. In the NPRM, we proposed to revise paragraph (d)(4) to revise the lower limit for classing a material as a combustible liquid from 60.5 °C (141 °F) to 60 °C (140 °F). This is consistent with recent changes to the classification of flammable liquids based on the adoption of the GHS within the UN Recommendations. We did not receive comments opposing this proposal; therefore, it is adopted in this final rule. The § 172.101 Hazardous Materials Table
(HMT)In this final rule, we are making various amendments to the § 172.101 Hazardous Materials Table (HMT). Readers should review all changes for a complete understanding of the Table amendments. For purposes of the Government Printing Office's typesetting procedures, changes to the HMT appear under three sections of the Table, “remove,” “add” and “revise.” Certain entries in the HMT, such as those with revisions to the proper shipping names, will appear as a “remove” and “add.” We did not receive comments opposing the changes to the HMT proposed in the NPRM. Therefore, in this final rule we are adopting the following amendments to the HMT for the purpose of harmonizing with international standards: 1. We are correcting Column
(7)Special provisions of the HMT by removing Special Provision 101 which requires the name of the particular substance or article to be specified. With the introduction of the letter “G” for these materials in Column (1), requiring the n.o.s. and generic proper shipping names to be supplemented with the technical name of the hazardous material, Special Provision 101 becomes obsolete and duplicative. The affected entries are as follows: UN0349 Articles, explosive, n.o.s. UN0350 Articles, explosive, n.o.s. UN0351 Articles, explosive, n.o.s. UN0352 Articles, explosive, n.o.s. UN0353 Articles, explosive, n.o.s. UN0354 Articles, explosive, n.o.s. UN0355 Articles, explosive, n.o.s. UN0356 Articles, explosive, n.o.s. UN0462 Articles, explosive, n.o.s. UN0463 Articles, explosive, n.o.s. UN0464 Articles, explosive, n.o.s. UN0465 Articles, explosive, n.o.s. UN0466 Articles, explosive, n.o.s. UN0467 Articles, explosive, n.o.s. UN0468 Articles, explosive, n.o.s. UN0469 Articles, explosive, n.o.s. UN0470 Articles, explosive, n.o.s. UN0471 Articles, explosive, n.o.s. UN0472 Articles, explosive, n.o.s. UN0382 Components, explosive train, n.o.s. UN0383 Components, explosive train, n.o.s. UN0384 Components, explosive train, n.o.s. UN0461 Components, explosive train, n.o.s. UN0357 Substances, explosive, n.o.s. UN0358 Substances, explosive, n.o.s. UN0359 Substances, explosive, n.o.s. UN0473 Substances, explosive, n.o.s. UN0474 Substances, explosive, n.o.s. UN0475 Substances, explosive, n.o.s. UN0476 Substances, explosive, n.o.s. UN0477 Substances, explosive, n.o.s. UN0478 Substances, explosive, n.o.s. UN0479 Substances, explosive, n.o.s. UN0480 Substances, explosive, n.o.s. UN0481 Substances, explosive, n.o.s. UN0485 Substances, explosive, n.o.s. UN0482 Substances, explosive, very insensitive, n.o.s. *or* Substances, EVI, n.o.s. 2. Amendment 32 of the IMDG Code added a new segregation group for alkalis. For consistency with international regulations and in response to a petition from Horizon Lines (P-1470), we are revising the Vessel stowage provisions in Column
(10B)by adding Segregation Code “52” (Stow “Separated from” acids) to certain entries. The affected entries are as follows: UN2733 Amines, flammable, corrosive, n.o.s. *or* Polyamines, flammable, corrosive, n.o.s. UN2671 Aminopyridines *(o-; m-; p-)* UN1005 Ammonia, anhydrous UN3318 Ammonia solution, *relative density less than 0.880 at 15 degrees C in water, with more than 50 percent ammonia* UN2672 Ammonia solutions, *relative density between 0.880 and 0.957 at 15 degrees C in water, with more than 10 percent but not more than 35 percent ammonia* UN2073 Ammonia solutions, *relative density less than 0.880 at 15 degrees C in water, with more than 35 percent but not more than 50 percent ammonia* UN3028 Batteries, dry, containing potassium hydroxide solid, *electric, storage* UN2795 Batteries, wet, filled with alkali, *electric storage* UN2797 Battery fluid, alkali UN2682 Caesium hydroxide UN2681 Caesium hydroxide solution UN1719 Caustic alkali liquids, n.o.s. UN1160 Dimethylamine solution UN2379 1, 3-Dimethylbutylamine UN2382 Dimethylhydrazine, symmetrical UN1163 Dimethylhydrazine, unsymmetrical UN3253 Disodium trioxosilicate UN2491 Ethanolamine *or* Ethanolamine solutions UN2270 Ethylamine, aqueous solution *with not less than 50 percent but not more than 70 percent ethylamine* UN1604 Ethylenediamine UN2386 1-Ethylpiperidine UN2029 Hydrazine, anhydrous UN3293 Hydrazine, aqueous solution, *with not more than 37 percent hydrazine, by mass* UN2030 Hydrazine, aqueous solution, *with more than 37 percent hydrazine, by mass* UN2680 Lithium hydroxide UN2679 Lithium hydroxide, solution UN1235 Methylamine, aqueous solution UN1244 Methylhydrazine UN2399 1-Methylpiperidine UN1813 Potassium hydroxide, solid UN1814 Potassium hydroxide, solution UN2033 Potassium monoxide UN1922 Pyrrolidine UN2678 Rubidium hydroxide UN2677 Rubidium hydroxide solution UN1907 Soda lime *with more than 4 percent sodium hydroxide* UN1819 Sodium aluminate, solution UN2318 Sodium hydrosulfide, *with less than 25 percent water of crystallization* UN1823 Sodium hydroxide, solid UN1824 Sodium hydroxide solution UN1825 Sodium monoxide UN1849 Sodium sulfide, hydrated *with not less than 30 percent water* UN2320 Tetraethylenepentamine UN3073 Vinylpyridines, stabilized 3. The entry “Aerosols, *non-flammable, (each not exceeding 1 L capacity)* ,” UN1950, is revised by adding vessel storage location code “A” in Column (10A). This code was inadvertently removed in a final rule published September 23, 2005 under Docket HM-189Y (70 *FR* 56084). 4. The entry “Antimony trichloride, solid,” UN1733, PG II, is revised by adding Special Provisions T3 and TP33. Special Provision T3 specifies the applicable minimum test pressure, the minimum shell thickness, bottom opening requirements and pressure relief requirements when transporting this material in a UN portable tank. Special Provision TP33 specifies requirements applicable to the transportation of this material in IM and UN Specification portable tanks. 5. The entry, “Articles, explosive, extremely insensitive *or* Articles, EEI,” UN0486, is revised by removing Special Provision 101 which requires the name of the particular substance or article to be specified. 6. The entry “Benzyl bromide,” UN1737, PG II, is revised by removing the reference to § 173.153 “Exceptions for Division 6.1 (poisonous materials)” in Column (8A). 7. The entry “Benzyl chloride,” UN1738, PG II, is revised by removing the reference to § 173.153 “Exceptions for Division 6.1 (poisonous materials)” in Column (8A). 7a. The entry “Calcium hypochlorite, hydrated *or* Calcium hypochlorite, hydrated mixtures,” UN2880, PG II, is revised by removing Special Provision 166. 8. In accordance with changes in the Fourteenth revised edition of the UN Recommendations, we are removing the following entries: —“Carbon dioxide and nitrous oxide mixtures,” UN1015; —“Carbon dioxide and oxygen mixtures, compressed,” UN1014; and —“Carbon monoxide and hydrogen mixture, compressed,” UN2600. 9. The entry, “Charges, shaped, flexible, linear,” UN0288, is revised by removing Special Provision 101, which requires the name of the particular substance or article to be specified. 10. The entry “Chlorosilanes, corrosive, n.o.s.,” UN2987, PG II, is revised by removing the reference to § 173.154 “Exceptions for Class 8 (corrosive materials)” in Column (8A). 11. The entry “Chlorosilanes, flammable, corrosive, n.o.s.,” UN2985, PG II, is revised by removing the reference to § 173.150 “Exceptions for Class 3 (flammable) and combustible liquids” in Column (8A). 12. The entry “Chlorosilanes, toxic, corrosive, n.o.s.,” UN3361, PG II, is revised by removing the reference to § 173.153 “Exceptions for Division 6.1 (poisonous materials)” in Column (8A).[?USGPO Galley End:?] 13. The entry “Chlorosilanes, toxic, corrosive, flammable, n.o.s.,” UN3362, PG II, is revised by removing the reference to § 173.153 “Exceptions for Division 6.1 (poisonous materials)” in Column (8A). 14. The entry “Chromium trioxide, anhydrous,” UN1463, Column
(6)is revised by adding the Division 6.1 subsidiary hazard labeling requirement. 15. The entry “Compressed gas, n.o.s.,” UN1956, is revised by adding Special Provision 77. Special Provision 77 requires, for domestic transportation, a Division 5.1 subsidiary risk label when a carbon dioxide and oxygen mixture contains more than 23.5% oxygen. 16. The entry, “Contrivances, water-activated, *with burster, expelling charge or propelling charge,* ” UN0248, is revised by removing Special Provision 101, which requires the name of the particular substance or article to be specified. In addition, the letter “G” is added to Column (1), requiring the proper shipping name to be supplemented with the technical name of the hazardous material. 17. The entry, “Contrivances, water-activated, *with burster, expelling charge or propelling charge,* ” UN0249, is revised by removing Special Provision 101, which requires the name of the particular substance or article to be specified. In addition, the letter “G” is added to Column (1), requiring the proper shipping name to be supplemented with the technical name of the hazardous material. 18. The entry “Corrosive liquid, acidic, inorganic, n.o.s.,” UN3264, PG II, is revised by removing Special Provision A6. Special Provision A6 specifies that for combination packagings, if plastic inner packagings are used, they must be packed in tightly closed metal receptacles before packing in outer packagings. Special Provision A6 applies only to the PG I entry of this material. 19. The proper shipping name for the entry “Crotonaldehyde, stabilized,” UN1143, is revised to read “Crotonaldehyde *or* Crotonaldehyde, stabilized” and to add new Special Provision 175. New Special Provision 175 specifies this material is required to be stabilized when in concentrations of not more than 99%. The revision appears as a “Remove/Add” in this rulemaking. 20. The proper shipping name for the entry “Crotonic acid, *liquid,* ” UN2823, is corrected to read “Crotonic acid, liquid” and the Identification Number is revised to read “UN3472.” This revision appears as a “Remove/Add” in this rulemaking. 21. The proper shipping name for the entry “Crotonic acid, *solid,* ” UN2823, is corrected to read “Crotonic acid, solid,” UN2823. This correction appears as a “Remove/Add” in this rulemaking. 22. In accordance with the ICAO Technical Instructions, the entry “Dangerous Goods in Machinery *or* Dangerous Goods in Apparatus,” UN3363, is revised by adding quantity limits for transportation by aircraft. The quantity limits are specified in new Special Provision A105. 23. The entry “Ethyltrichlorosilane,” UN1196, PG II, is revised by removing the reference to § 173.150 “Exceptions for Class 3 (flammable) and combustible liquids” in Column (8A). 24. The entry “Formic acid,” UN1779, is revised to read “Formic acid *with more than 85% acid by mass,* ” and the Class 3 subsidiary hazard is added in Column (6). This revision appears as a “Remove/Add” in this rulemaking. 25. A new entry, “Formic acid *with not less than 10% but not more than 85% acid by mass,* ” UN3412, is added. 26. A new entry, “Formic acid *with not less than 5% but less than 10% acid by mass,* ” UN3412, is added. 27. A new entry, “Fuel cell cartridges *containing flammable liquids,* ” UN3473, is added. 28. The entry “Hydrazine aqueous solutions, *with more than 37% hydrazine, by mass,* ” UN2030, PG I, is revised by removing Special Provision 151. Special Provision 151 specifies that if this material meets the definition of a flammable liquid in § 173.120 of the HMR, a FLAMMABLE LIQUID label is required and the basic description on the shipping paper must indicate the Class 3 subsidiary hazard. Changes to the Fourteenth revised edition of the UN Recommendations removed this requirement. Shipping paper and labeling requirements for materials with subsidiary hazards are addressed in §§ 172.202 and 172.402, respectively. 28a. The entry “Hydrogen in a metal hydride storage system,” UN3468, is revised by amending Column
(9B)to authorize 100 kg gross. 29. The entry “Hydrogen peroxide and peroxyacetic acid mixtures, stabilized *with acids, water, and not more than 5 percent peroxyacetic acid,* ” UN3149, is revised by adding Special Provision IP5. When this material is transported in an IBC, Special Provision IP5 specifies the IBC must have a device to allow venting. 30. The entry “Hydrogen peroxide, aqueous solutions *with more than 40 percent but not more than 60 percent hydrogen peroxide (stabilized as necessary),* ” UN2014, is revised by adding Special Provision IP5. When this material is transported in an IBC, Special Provision IP5 specifies the IBC must have a device to allow venting. 31. The entry “Hydrogen peroxide, aqueous solutions *with not less than 20 percent but not more than 40 percent hydrogen peroxide (stabilized as necessary),* ” UN2014, is revised by adding Special Provision IP5. When this material is transported in an IBC, Special Provision IP5 specifies the IBC must have a device to allow venting. 32. The entry “Hydrogen peroxide, aqueous solutions *with not less than 8 percent but less than 20 percent hydrogen peroxide (stabilized as necessary),* ” UN2984, is revised by adding Special Provision IP5. When this material is transported in an IBC, Special Provision IP5 specifies the IBC must have a device to allow venting. 33. The entry “Hydrogen peroxide, stabilized *or* Hydrogen peroxide aqueous solutions, stabilized *with more than 60 percent hydrogen peroxide,* ” UN2015, is revised by removing Special Provision T10 and adding Special Provision T9. When this material is transported in a UN portable tank, Special Provision T10 requires the UN portable tank pressure relief device to comply with the requirements specified in § 178.275(g)(3) of the HMR. The addition of Special Provision T9 removes this requirement. 34. For the entry “Hydrogen-difluorides, n.o.s.,” UN1740, PG II and III, the proper shipping name is revised to read “Hydrogendifluorides, solid, n.o.s.” This revision appears as a “Remove/Add” in this rulemaking. 35. A new entry “Hydrogendifluorides, solution, n.o.s.,” UN3471, PG II and III, is added. 36. The entry “Hydroquinone, solid,” UN2662, is removed. 37. The entry “Hydroquinone solution,” UN3435, is removed. 38. The entry “Hypochlorite solutions,” UN1791, PG II, is revised by adding Special Provision IP5. When this material is transported in an IBC, Special Provision IP5 specifies the IBC must have a device to allow venting. 39. For the entry “Lead phosphite, dibasic,” UN2989, PG II, the quantity limitations in Columns
(9A)and
(9B)are revised to read 15 kg and 50 kg, respectively. 40. For the entry “Lead phosphite, dibasic,” UN2989, PG III, the quantity limitations in Columns
(9A)and
(9B)are revised to read 25 kg and 100 kg, respectively. 41. The entry “Methylphenyl dichlorosilane,” UN2437, PG II, is revised by removing the reference to § 173.154 “Exceptions for Class 8 (corrosive materials)” in Column (8A). 42. The entry “Motor fuel anti-knock mixtures,” UN1649, is corrected by removing the subsidiary hazard label requirement in Column (6). 42a. A new entry “Nitric acid *other than red fuming, with not more than 20 percent nitric acid,* ” UN2031, PG II, is added. 42b. The entry “Organoarsenic compound, liquid, n.o.s.,” UN3280, PG I, II, and III, is corrected by inserting the symbol “G” in Column (1). 43. The entry “Organometallic substance, solid, pyrophoric,” UN3391, PG I, is revised by correcting the Column
(8B)Non-bulk packaging entry “181” to read “187.” 44. The entry “Organometallic substance, solid, pyrophoric, water-reactive,” UN3393, PG I, is revised by correcting the Column
(8B)Non-bulk packaging entry “181” to read “187.” 45. A new entry, “Paint, corrosive, flammable ( *including paint, lacquer, enamel, stain, shellac, varnish, polish, liquid filler and liquid lacquer base* ),” UN3470, PG II, is added. 46. A new entry “Paint, flammable, corrosive ( *including paint, lacquer, enamel, stain, shellac, varnish, polish, liquid filler and liquid lacquer base* ),” UN3469, PG I, II, and III, is added. 47. The entry “Paint *including paint, lacquer, enamel, stain, shellac solutions, varnish, polish, liquid filler and liquid lacquer base,* ” UN1263, is revised by adding the following Special Provisions to the PG I, II, and III entries, respectively: —TP27 to specify that when this material is transported in an IM or UN Specification portable tank, a portable tank having a minimum test pressure of 4 bar (400 kPa) may be used provided the calculated test pressure is 4 bar or less based on the maximum allowable working pressure of the material, as defined in § 178.275 of the HMR, where the test pressure is 1.5 times the maximum allowable working pressure. —TP28 to specify that when this material is transported in an IM or UN Specification portable tank, a portable tank having a minimum test pressure of 2.65 bar (265 kPa) may be used provided the calculated test pressure is 2.65 bar or less based on the maximum allowable working pressure of the material, as defined in § 178.275 of the HMR, where the test pressure is 1.5 times the maximum allowable working pressure. —TP29 to specify that when this material is transported in an IM or UN Specification portable tank, a portable tank having a minimum test pressure of 1.5 bar (150.0 kPa) may be used provided the calculated test pressure is 1.5 bar or less based on the maximum allowable working pressure of the material, as defined in § 178.275 of the HMR, where the test pressure is 1.5 times the maximum allowable working pressure. 48. The entry “Paint *or* Paint related materials,” UN3066, is revised by adding the following Special Provisions to the PG II and III entries, respectively: —TP28 to specify that when this material is transported in an IM or UN Specification portable tank, a portable tank having a minimum test pressure of 2.65 bar (265 kPa) may be used provided the calculated test pressure is 2.65 bar or less based on the maximum allowable working pressure of the material, as defined in § 178.275 of the HMR, where the test pressure is 1.5 times the maximum allowable working pressure. —TP29 to specify that when this material is transported in an IM or UN Specification portable tank, a portable tank having a minimum test pressure of 1.5 bar (150.0 kPa) may be used provided the calculated test pressure is 1.5 bar or less based on the maximum allowable working pressure of the material, as defined in § 178.275 of the HMR, where the test pressure is 1.5 times the maximum allowable working pressure. 49. A new entry, “Paint related material, corrosive, flammable ( *including paint thinning or reducing compound* ),” UN3470, PG II, is added. 50. A new entry, “Paint related material, flammable, corrosive ( *including paint thinning or reducing compound* ),” UN3469, PG I, II, and III is added. 51. The entry “Paint related material *including paint thinning, drying, removing, or reducing compound,* ” UN1263, is revised by adding the following Special Provisions to the PG I, II, and III entries, respectively: —TP27 to specify that when this material is transported in an IM or UN Specification portable tank, a portable tank having a minimum test pressure of 4 bar (400 kPa) may be used provided the calculated test pressure is 4 bar or less based on the maximum allowable working pressure of the material, as defined in § 178.275 of the HMR, where the test pressure is 1.5 times the maximum allowable working pressure. —TP28 to specify that when this material is transported in an IM or UN Specification portable tank, a portable tank having a minimum test pressure of 2.65 bar (265 kPa) may be used provided the calculated test pressure is 2.65 bar or less based on the maximum allowable working pressure of the material, as defined in § 178.275 of the HMR, where the test pressure is 1.5 times the maximum allowable working pressure. —TP29 to specify that when this material is transported in an IM or UN Specification portable tank, a portable tank having a minimum test pressure of 1.5 bar (150.0 kPa) may be used provided the calculated test pressure is 1.5 bar or less based on the maximum allowable working pressure of the material, as defined in § 178.275 of the HMR, where the test pressure is 1.5 times the maximum allowable working pressure. 52. The entry “Plastic molding compound *in dough, sheet or extruded rope form evolving flammable vapor,* UN3314, PG III, is revised by removing Vessel stowage location A and adding location E in Column (10A), and by removing Vessel stowage provision 85 and adding Vessel stowage provisions 19, 21, 25 and new Vessel stowage provision 144 in Column (10B). 53. The entry “Polymeric beads, expandable, *evolving flammable vapor,* UN2211, PG III, is revised by removing stowage location A and adding location E in Column (10A), and by removing Vessel stowage provision 85 and adding Vessel stowage provisions 19, 21, 25 and new Vessel stowage provision 144 in Column (10B). 54. For the entry “Propionic acid,” UN1848, the proper shipping name is revised to read, “Propionic acid *with not less than 10% and less than 90% acid by mass* .” This revision appears as a “Remove/Add” in this rulemaking. 55. A new entry, “Propionic acid *with not less than 90% acid by mass* ,” UN3463, is added. 56. The entry “Rare gases mixtures, compressed,” UN1979, is removed. 57. The entry “Rare gases and oxygen mixtures, compressed,” UN1980, is removed. 58. The entry “Rare gases and nitrogen mixtures, compressed,” UN1981, is removed. 59. The proper shipping name “Regulated medical waste,” UN3291, is removed and a new proper shipping name “Regulated medical waste, n.o.s. *or* Clinical waste unspecified, n.o.s. *or*
(BIO)Medical waste, n.o.s.,” UN3291, is added in its place. 60. For the international entry for “Sulfur,” UN1350, the quantity limitations in Columns
(9A)and
(9B)are revised to read 25 kg and 100 kg, respectively. 61. The entry “Trimethylchloro-silane,” UN1298, PG II, is revised by removing the reference to § 173.150 “Exceptions for Class 3 (flammable) and combustible liquids” in Column (8A). Also, *see* § 172.102 for additional HMT amendments. Appendix B to § 172.101 Appendix B to § 172.101 lists Marine Pollutants regulated under the HMR. For the entry “Copper chloride” we are adding the designation “PP” to indicate that copper chloride is a severe marine pollutant. We are also correcting an oversight by removing the entries “Alcohol C-13—C-15 poly (1-6) ethoxylate” and “1,2-Dichlorobenzene.” Removal of the entry “Alcohol C-13—C-15 poly (1-6) ethoxylate” was overlooked in a final rule published December 20, 2004 under Docket HM-215G (69 *FR* 76044) and removal of the entry “1,2-Dichlorobenzene” was overlooked in a final rule published June 21, 2001 under Docket HM-215D (66 *FR* 33316). Section 172.102 Section 172.102 lists a number of special provisions applicable to the transportation of specific hazardous materials. Special provisions contain packaging provisions, prohibitions, and exceptions applicable to particular quantities or forms of hazardous materials. We did not receive comments opposing the revisions proposed in the NPRM; therefore, in this final rule for consistency with international standards, we are amending § 172.102 Special provisions, as follows: • Special Provision 15 specifies the types of materials and packaging requirements for chemical kits and first aid kits. We are revising Special Provision 15 to list examples that may be described as “Chemical kits” and “First aid kits.” • Special Provision 47 specifies requirements for mixtures of non-hazardous solids and flammable liquids. In accordance with the UN Recommendations, Special Provision 47 is revised to specify that, in addition to sealed packets, articles containing less than 10 mL of a Class 3 Packing Group II or III liquid absorbed into a solid material are excepted from the HMR provided there is no free liquid in the packet or article. • Special Provision 77 applies to use of the Division 5.1 subsidiary risk label. We are revising this special provision for consistency with the wording in the UN Recommendations. As a result, Special Provision 77 will no longer apply only to “domestic transportation.” Further, we are clarifying that a Division 5.1 label is not required for mixtures containing not more than 23.5% oxygen by volume. Also, the provision is assigned to the entry “Compressed gas, n.o.s.,” UN1956, which is the most appropriate description for mixtures currently described as “Carbon dioxide and oxygen mixtures, compressed.” In this final rule, we are removing the entry for “Carbon dioxide and oxygen mixtures, compressed.” • Special Provision 146 is amended to authorize the domestic classification of a material as environmentally hazardous if it is designated as such by a foreign competent authority. The provision as currently worded only allows such classification for international shipments. Due to current differences in criteria for the classification of environmentally substances world-wide, we believe the amended provision will afford additional flexibility to industry and reduce shipping costs by allowing both domestic and international shipments to be treated identically. Although generally the HMR do not authorize materials not meeting the definition of a hazardous material to be transported as regulated materials, due to the low risk posed by these materials, and the fact that the HMR already authorize domestic movement in association with international air and vessel transport, we believe this change will not result in a significant impact other than to lower costs for our stakeholders. • Special Provision 147 applies to non-sensitized emulsions, suspensions and gels consisting primarily of a mixture of ammonium nitrate and fuel, intended to produce a Type E blasting explosive only after further processing prior to use. In accordance with the UN Recommendations, this special provision is revised to specify the composition of mixtures for suspensions and gels and to specify these substances be tested in accordance with Test Series 8 of the UN Manual of Tests and Criteria. • Special Provision 166 authorizes non-friable, tablet form calcium hypochlorite, dry or hydrated, to be transported as a Packing Group III material. In accordance with the UN Recommendations, we are revising Special Provision 166 to remove the authorization for “hydrated” non-friable tablet forms of calcium hypochlorite to be transported as a PG III material. • A new Special Provision 175 is added to require stabilization for certain substances when transported in concentrations of not more than 99%. • Special Provision 101 is removed. This special provision required the name of the particular substance or article to be specified. With the introduction of the letter “G” in Column (1), which requires the n.o.s. and generic proper shipping names to be supplemented with the technical name of the hazardous material, Special Provision 101 became obsolete. • A new Special Provision A105 is added to specify the quantity of hazardous materials allowed in equipment or apparatus. Section 172.202 Shipping Description Sequence Section 172.202 establishes requirements for shipping descriptions on shipping papers. Currently, the basic description of a hazardous material consists of the proper shipping name, hazard class, ID number and packing group, in that order. The HMR also authorize an alternative description sequence, which lists the identification number first, followed by the proper shipping name, hazard class, and packing group. Beginning January 1, 2007, the alternative shipping description sequence will be mandatory on shipping documents prepared in accordance with the ICAO Technical Instructions and the IMDG Code. In the NPRM, we proposed to adopt the current, alternative shipping description sequence as the mandatory basic description of a hazardous material on a shipping paper. We also proposed a two-year transition period to allow offerors adequate time to convert to the new shipping description sequence. A total of 19 commenters addressed this proposal. Eight commenters [NPCA, AP&C, ATA, GPS, LabCorp, NTTC, UPS, and VHOMA] support the proposal. NPCA notes that many of its members have already implemented this change to simplify internal shipping processes. Eleven commenters [Adamo; AllChem; Botteri; Eisenhofer; ISSA, J&S; NACD; NATC; RST; and two unidentified commenters] oppose this proposal, suggesting that the change is not necessary, lacks an economic justification, and will have a negative impact on safety. These commenters note that, because the current regulations allow the international sequence as an alternative, the proposed change merely removes the existing sequence with no positive safety rationale. These commenters further assert that the proposed change could result in significant cost impacts to companies that utilize computer systems for the preparation of shipping documents and to track associated packaging and training requirements. According to these commenters, potential costs could include database reorganization, employee training, and related revisions to product labels that also include shipping information. Commenters suggest that costs could also result from confusion on the part of enforcement and inspection personnel that could lengthen inspections and delay shipments. These commenters are also concerned that the proposed revision could have a negative impact on safety because it could result in confusion for emergency response personnel, most of whom are volunteers and receive limited training. Commenters note that confusing emergency response information could expose emergency responders to unnecessary danger. PHMSA does not believe this proposal is unnecessary or will adversely impact transportation safety. A uniform system for describing and identifying hazardous materials on shipping papers, as proposed in this NPRM, will increase safety by helping to eliminate potential indecision and confusion during emergency situations. For example, when incidents occur during transportation, it is crucial to promptly identify packages of hazardous materials present in a given shipment. Emergency responders at the scene of an incident would use a standard description of hazardous materials on shipping papers to quickly determine that they have accounted for all hazardous materials in both domestically- and internationally-bound packages. In addition, following the release of a hazardous material, it is vital for emergency responders to quickly identify the hazardous materials to facilitate their emergency response decision-making. A standardized shipping description for both domestic and international shipments will aid in this process and will lead to a potential reduction in the loss of life and property. PHMSA analyzes potential cost impacts of proposed regulations on the regulated community. Our justification regarding this proposal in the Regulatory Evaluation is located under the Docket Management System ( *http://dms.dot.gov* ). In the Regulatory Evaluation, we determined that this NPRM, including this specific proposal, should result in cost savings by easing the regulatory compliance burden for shippers and carriers engaged in international commerce, including trans-border shipments within North America. In addition, shippers and carriers will not need to revise shipping papers to address differing domestic and international requirements for shipping descriptions. We acknowledge the proposal to require one basic description of a hazardous material on a shipping paper will necessitate additional training and software revisions. However, to allow for the training of hazmat employees and to ease the minimal burden on entities affected by the adoption of the proposed amendments, we are authorizing an extended transition period. An extended transition period will allow businesses to incorporate this requirement into their training material for both new and current hazardous materials employees, and to upgrade system software over the course of normal computer upgrades and revisions with a minimal economic impact. The NPRM proposed a two-year transition period to allow shippers sufficient time to convert to the new shipping description sequence. Three commenters [NTTC, ATA, and VOHMA] suggest the proposed transition period is unnecessary and recommend a one-year transition. These commenters state that the industry is able to alter current software systems and deplete pre-printed shipping paper inventory within a relatively short time period. VOHMA asserts lengthy transition periods create confusion and increased training burdens. Six commenters [ATA; GPS; LabCorp; NTTC; UPS; VOHMA] state that the proposed transition period is too short, recommending up to six years to permit shippers to convert to the new sequence. These commenters suggest a longer transition period would allow the new shipping sequence to be incorporated into responder training programs and the next revision of the Emergency Response Guidebook (ERG). The ERG lists hazardous materials in numerical order of ID number and in alphabetical order of material name. We understand commenters' concerns regarding the length of the transition period for this proposal. However, it is our intention to specify a uniform method to describe a hazardous material on a shipping paper in order to promote the universal recognition of hazardous materials, while allowing sufficient time for affected parties to properly train personnel, reconfigure internal computer systems, and deplete existing stock. We do not believe a time period less than six years would allow businesses to adequately accomplish these objectives. Moreover, a six-year transition period would allow for the incorporation of this requirement into the initial and recurrent training cycle for hazardous materials employees and emergency responders. Therefore, for the reasons described above, in this final rule, we are adopting the requirement that the shipping description of a hazardous material be indicated on a shipping paper in the following manner: Identification
(ID)number listed first, followed by the proper shipping name, hazard class, and packing group. In addition, we are authorizing a six-year transition period to implement this requirement. Quantity Limitations The description of a hazardous material on a shipping paper must include the total quantity of hazardous material (by mass or volume) covered by the description (see § 172.202(a)(5)). The majority of quantity limitations set forth for transportation by aircraft, in Columns
(9A)and (9B), are “net” quantities. Section 175.75 limits the quantity of hazardous materials, expressed in net mass, aboard an aircraft. To facilitate compliance with the aircraft operator's requirements, in the NPRM we proposed that, for transportation by aircraft, the total quantity per package be shown, expressed as net mass, except as otherwise specified. For example: UN1263, Paint, 3, PG II, 5 fiberboard boxes x 5 L each As proposed, different size packages containing different quantities of the same hazardous material must be clearly identified. For example: UN1263, Paint, 3, PG II, 5 fiberboard boxes x 5 L, 6 fiberboard boxes x 10 L As proposed, where the letter “G” follows the quantity in Column
(9A)or (9B), the gross mass rather than the net quantity must be indicated. A commenter [DGAC] opposes the proposal to require the quantity of a hazardous materials shipment by aircraft to be expressed as a net quantity per package. The commenter questions the safety benefit of adopting the requirement and states that the costs to industry associated with the change, such as computer software upgrades, may be substantial. The commenter did not provide data to support this argument. We disagree that there is no safety benefit in expressing the quantity of hazardous material in terms of “net quantity” for air shipments. Quantity limitations aboard aircraft, as prescribed in § 175.75, are specified in the HMR as net quantities; thus, an indication of the net quantity per package on shipping papers facilitates load planning and compliance. We do not believe the cost of indicating net quantity rather than total quantity, as previously required, is increased substantially. Therefore, in this final rule, we are adopting the amendment as proposed. In the NPRM, we also proposed the following additional requirements: —For empty uncleaned packaging, only the number and type of packaging must be shown; —For chemical kits and first aid kits, the total net mass of hazardous materials must be shown. Where a kit contains solids and/or liquids, the net mass of liquids within the kit is to be calculated on a 1 to 1 basis, i.e., 1 liter equals 1 kilogram; —For dangerous goods in machinery or apparatus, the individual total quantities of dangerous goods in solid, liquid or gaseous state, contained in the article must be shown; —For dangerous goods transported in a salvage packaging, an estimate of the quantity of dangerous goods per package must be shown; —For cylinders, the total quantity may be indicated by the number of cylinders, for example, “10 cylinders;” —For items where “No Limit” is shown in Column
(9A)or
(9B)of the HMT, the quantity shown should be the net mass or volume of the material, except for UN2800, UN2807, UN3072, UN3166 and UN3173, where the quantity should be the gross mass of the article. On the proposal to identify the total quantity of each hazardous material in machinery or apparatus, a commenter [UPS] states that the “precision implied in this proposal is unrealistic.” UPS suggests that, absent a precise quantity, a shipper should be permitted to estimate the quantity of hazardous material. We agree and are amending paragraph (a)(6)(iii) accordingly. Another commenter [Laude] requests we include net quantity provisions for Class 7 materials transported by aircraft. Similar provisions for transportation by other modes are contained in paragraph (a)(5). We agree with the commenter and are amending paragraph (a)(6) accordingly. The same commenter points out that in proposed paragraph (a)(6)(vi) ID numbers UN2807 and UN3173 do not exist in the HMT; (ID number UN2807 is assigned to “magnetized material” in the ICAO Technical Instructions). We are removing UN2807 and UN3173 in this final rule. Section 172.312 Section 172.312 addresses marking requirements for liquid hazardous materials in non-bulk packagings. Specifically, the packaging must be marked with orientation arrows to indicate how the package should be oriented during transportation; the arrows indicate which end of the package is “up.” Currently the HMR require orientation markings only on a non-bulk combination package with inner packagings that contain a liquid hazardous material, unless specifically excepted. We proposed to amend paragraph
(a)by requiring orientation markings on single packagings fitted with vents and on open cryogenic receptacles intended for the transport of refrigerated liquefied gases. We received one comment [AP&C] supporting the proposal and, in this final rule, are adopting the amendment as proposed. Also, we proposed to require the size of the marking to be proportioned so that it is clearly visible in relation to the size of the package, and the color of the arrows to be either black or red on a suitable contrasting background. One commenter [AP&C] supports the proposal requiring the size of the marking to be proportionate with the size of the package. Several commenters [NATC; Botteri; Eisenhofer; Adamo; NACD; J&S; RST; AllChem; UC1; UC2] question the meaning of the phrase “clearly visible” and suggest we specify the size of the marking; either by requiring the marking to be at least equal to the size of the largest package marking or, at a minimum, requiring the marking to be 1/2 inch. We agree with commenters that the phrase “clearly visible” is vague; however, we disagree with specifying the size of the orientation marking. The HMR currently require non-bulk packages containing liquid hazardous materials to be “legibly marked” with the orientation marking. Specifying the size of the orientation marking would be inconsistent with the general marking requirements (proper shipping name and identification number) for non-bulk packagings which do not specify the size of the markings. In this final rule, we are removing the phrase “clearly visible” and requiring the orientation marking to be commensurate with the size of the package. We also proposed adding a new paragraph (c)(7) to except Class 7 materials in Type A, IP-2, IP-3, Type B(U), or Type B(M) packages from the orientation marking requirement. We received no comments on this proposal and are adopting the amendment as proposed. Sections 172.407 and 172.427 Section 172.407 establishes specifications for package labels. Section 172.427 establishes requirements for the ORGANIC PEROXIDE label. In accordance with the UN Recommendations, we proposed to revise the ORGANIC PEROXIDE label. The revised label would reflect the fact that organic peroxides are highly flammable and enable transport workers to readily distinguish peroxides from oxidizers. We also proposed to authorize labels meeting the specifications in effect on December 31, 2006, to continue to be displayed until January 1, 2011 (see § 171.14). This would eliminate the current requirement in § 172.402 for a package containing an organic peroxide to bear a FLAMMABLE LIQUID subsidiary label in addition to the ORGANIC PEROXIDE primary hazard class label. We received no comments opposing the proposal to revise the ORGANIC PEROXIDE label; therefore, in this final rule we are adopting the revisions as proposed. Section 172.552 Section 172.552 establishes specific requirements for the ORGANIC PEROXIDE placard. In accordance with the UN Recommendations, in paragraph (b), we proposed to revise the ORGANIC PEROXIDE placard. The revised placard would reflect the fact that organic peroxides are highly flammable and enable transport workers to readily distinguish peroxides from oxidizers. We proposed to authorize placards meeting the specifications in effect on December 31, 2006, to continue to be displayed until January 1, 2011 (see § 171.14). We received one comment [ATA] supporting the revised placard design; however, ATA disagrees with the length of the proposed transition period. The ATA requests a seven-year transition period until January 1, 2014. The ATA states that trucking companies with large fleets use dual metal flip placards on each side of the trailer. According to the ATA, trailer fleets are generally refurbished every seven years. This would allow companies to replace the ORGANIC PEROXIDE placard at the time of refurbishment. Based on this comment, in this final rule, we are authorizing ORGANIC PEROXIDE placards meeting the specifications in effect on December 31, 2006, to continue to be displayed until January 1, 2014 for transportation by highway and until January 1, 2011 for transportation by rail, vessel or aircraft. Part 173 Section 173.9 Section 173.9 sets forth requirements for transporting cargo that has been fumigated or is undergoing fumigation. Such shipments must have a FUMIGANT marking. As specified in this section, the FUMIGANT marking includes an indication of the material used for fumigation and the date and time the fumigant was applied. Currently, transport vehicles or freight containers containing fumigated cargoes are not required to show the date the fumigated transport vehicle or freight container was ventilated to remove harmful concentrations of fumigant gas. To minimize the possibility of an individual entering a fumigated transport vehicle or freight container prematurely, in the NPRM we proposed to require the FUMIGANT marking to include the date of ventilation. We also proposed to revise the specifications for the FUMIGANT marking to allow either red or black marking on a white background. No commenters opposed these proposals, therefore, we are adopting them without change in this final rule. Sections 173.35, 173.120, 173.121, and Appendix H to Part 173 Section 173.35 sets forth requirements for transporting hazardous materials in intermediate bulk containers (IBCs); § 173.120 establishes classification criteria for flammable liquid (Class 3) materials; § 173.121 addresses packing group assignments for Class 3 materials; and Appendix H to Part 173 sets forth methods to test a material to determine its combustibility. In the NPRM, we proposed to revise all of these sections to reflect the new upper limit of 60 °C (140 °F) for a PG III flammable liquid. This is consistent with recent changes to the classification of flammable liquids based on the GHS and adoption into the UN Recommendations. PHMSA also proposed to authorize a five-year transition period. A commenter [DGAC] appreciates the length of the proposed transition period. DGAC urges PHMSA to propose a similar transition period for the criteria in international regulations. Modifications to the international standards are outside the scope of this rulemaking. International shippers should be aware of this disparity and take appropriate action. In this final rule, we are adopting the amendment as proposed. Section 173.115 The HMR define a Division 2.2 non-flammable gas as any material or mixture that “exerts in the packaging an absolute pressure of 280 kPa (40.6 psia) or greater at 20 °C (68 °F), * * *.” In paragraph (b)(1), we proposed to add the phrase “or is a cryogenic liquid,” to clarify that a cryogenic liquid, whether or not it meets the definition of a Division 2.2 non-flammable gas, is subject to the HMR. This is consistent with the current requirements for cryogenic liquids in § 173.115(g). We received no comments opposing this proposal; therefore, in this final rule, we are adopting the proposal without change. Currently, paragraph (k)(5) of this section requires aerosols containing Class 8, PG III materials to be assigned a Class 8 subsidiary hazard. In the NPRM, we proposed to amend paragraph (k)(5) to specify that aerosols containing Class 8, PG II or PG III materials must be assigned a Class 8 subsidiary hazard. We received no comments opposing this proposal; therefore, in this final rule, we are adopting the proposal without change. Section 173.124 Section 173.124 establishes classification criteria for Division 4.1 (flammable solid), Division 4.2 (spontaneously combustible), and Division 4.3 (dangerous when wet) materials. In the NPRM, we proposed to revise § 173.124 by adding a new paragraph (a)(2)(i)(D)( *3* ) to require mixtures of oxidizing substances containing 5.0% or more combustible organic substances to be subject to the self-reactive substance classification procedure. This will ensure that oxidizing substances containing 5.0% or more of combustible organic substances are also tested for their ability to self-react and to ensure that in such instances, these substances are appropriately classed for their self-reactive hazard. We received no comments on this proposal; it is adopted without change in this final rule. Section 173.133 Section 173.133 establishes criteria for assignment of packing groups to poisonous (Division 6.1) materials. We proposed to amend the toxicity criteria for consistency with the toxicity criteria adopted in the UN Recommendations on the basis of the limits established in the GHS. As a result, some materials that were not previously regulated under the HMR would now be regulated as Division 6.1, Packing Group III; some materials currently regulated as Division 6.1, Packing Group I or II are assigned to a different packing group; and some materials that were previously regulated as Division 6.1, Packing Group III would no longer be subject to regulation under the HMR. PHMSA also proposed a five-year transition period. The effect of these proposed changes to packing group assignments for Division 6.1 materials is summarized as follows: Material properties Current PG assignment New PG assignment Oral LD <sup>50</sup> > 200, ≤ 300 (Solid) Not regulated III Oral LD <sup>50</sup> > 300, ≤ 500 (Liquid) III Not regulated. Dermal LD <sup>50</sup> > 40, ≤ 50 II I Inhalation toxicity by dusts and mists LC <sup>50</sup> > 0.2, ≤ 0.5 I II Inhalation toxicity by dusts and mists LC <sup>50</sup> > 4, ≤ 10 III Not regulated. Thirteen commenters [NATC; Botteri; Eisenhofer; Adamo; J&S; RST; AP&C; AllChem; Arkema; UC1; UC2; NACD; DGAC] support adoption of this proposal. Arkema notes that the amended criteria may result in reclassification of certain materials that are listed by name in the HMT. The commenter requests that the HMR be amended to allow the use of currently listed names instead of describing the material under an appropriate generic (n.o.s.) name based on the new toxicity criteria. The commenter also states Arkema, an international company, will review its materials to ensure they are in compliance with the provisions of the 2008 IMDG Code, and will handle air shipments on a case-by-case basis. PHMSA does not intend to provide such an allowance in the HMR; we believe such a provision could be confusing and would be inconsistent with the international regulations. However, we invite submission of data supporting reclassification of certain materials resulting from the revised criteria for toxic materials. Such data could be used to effect change in the listing of a material within the HMR and the UN Model Regulations. A commenter [DGAC] appreciates the length of the proposed transition period. DGAC urges PHMSA to propose a similar transition period for the criteria in international regulations. Changes to the international standards are outside the scope of this rulemaking. International shippers should be aware of this disparity and take appropriate action. Finally, ten commenters [NATC; Botteri; Eisenhofer; Adamo; J&S; RST; AllChem; UC1; UC2; NACD] request a five-year transition period and a grandfather clause to allow packages filled prior to a specific date to remain marked without modification for domestic transportation. In the NPRM, we proposed a five-year transition period and in this final rule, we are adopting the amendment as proposed (see § 171.14). We disagree with the request to allow packages filled prior to a specific date to remain marked without modification for domestic transportation. We believe that a five-year transition provides adequate time to transition to the new classification criteria and to ensure that packages marked based on regulations in effect on December 31, 2006, are out of the transportation stream. Therefore, we are not adopting a grandfather clause. Sections 173.134 and 173.197 Consistent with the proposals in the NPRM, in this final rule, these sections are revised by replacing the wording “Regulated medical waste” with the wording “Regulated medical waste or clinical waste or
(bio)medical waste.” No commenters addressed this issue. Section 173.136 Currently, the HMR define “corrosive material” to mean “a liquid or solid that causes full thickness destruction of human skin at the site of contact within a specified period of time. A liquid that has a severe corrosion rate on steel or aluminum based on the criteria in § 173.137(c)(2) is also a corrosive material.” Certain solids with a low melting point may become liquid during transportation, and others may be intentionally heated above their melting point and transported as a liquid in the molten state. We believe the Class 8 definition should apply equally to liquids and to solids offered for transportation or transported in a liquid state. In the NPRM, we proposed to revise the definition of a “corrosive material” to include a solid material that is offered for transportation or transported as a liquid and has a severe corrosion rate on steel or aluminum. A commenter [Degussa] requests that we align the definition with the UN Recommendations. We agree and are modifying the definition of “corrosive material” to include the phrase “solids that may become liquid during transportation.” Also, we are removing the grandfather provision in § 173.136(d) on the basis that it is no longer necessary because tests other than the one specified in the UN Manual of Tests and Criteria will be authorized. See the § 173.137 preamble discussion below. Section 173.137 Section 173.137 establishes packing group criteria for corrosive (Class 8) materials. In a final rule published December 20, 2004 under Docket HM-215G (69 *FR* 76155), we revised the language in paragraph (c)(2) mandating the corrosion test in the UN Manual of Tests and Criteria as the only acceptable test method for determining the corrosivity of a material. That was not our intent. In the NPRM, we proposed to revise paragraph (c)(2) to specify that corrosivity may be determined in accordance with methods described in the UN Manual of Tests and Criteria, as well as other equivalent methods, such as those described in ASTM G 31-72. No commenters addressed this proposal; it is adopted without change in this final rule. Section 173.159 Section 173.159 establishes transportation requirements for wet electric storage batteries. For consistency with the ICAO Technical Instructions, in the NPRM we proposed to revise paragraphs (a), (c)(1), (c)(2), (c)(4), (c)(5), (d)(1) and (e)(2) to clarify that batteries may be protected against short circuits by the use of non-conductive caps that cover the entire terminal(s). No commenters addressed this proposal; therefore, we are adopting it without change in this final rule. Section 173.166 Section 173.166 establishes transportation requirements for air bag inflators, air bag modules, and seat-belt pretensioners. Currently, paragraph (d)(1) excepts from the HMR air bag modules and seat-belt pretensioners approved by the Associate Administrator and installed in a motor vehicle or a completed motor vehicle component. In the NPRM, we proposed to revise paragraph (d)(1) to expand the exception to include air bag modules and seat-belt pretensioners installed in other means of conveyances, such as boats and aircraft, or their components. We received no comments on this proposal; therefore, we are adopting it without change in this final rule. Section 173.187 Section 173.187 establishes transportation requirements for pyrophoric solids, metals, or alloys, not otherwise specified (n.o.s.). In the NPRM, we proposed to revise this section for clarity and to correct an oversight by adding 4A steel boxes to the list of authorized packagings for pyrophoric solids, metals or alloys, n.o.s. We received no comments on this proposal; it is adopted without change in this final rule. Section 173.216 Section 173.216 establishes transportation requirements for blue, brown, or white asbestos. Paragraph
(c)of this section specifies packaging requirements for these materials. In the NPRM, we proposed to require bags or other non-rigid packages containing asbestos to be transported in rigid outer packages or closed freight containers. No commenters addressed this proposal; therefore, it is adopted without change in this final rule. Section 173.220 Section 173.220 establishes transportation requirements for internal combustion engines, self-propelled vehicles, mechanical equipment containing internal combustion engines, and battery powered vehicles and equipment. For transportation by aircraft, the HMR impose a pressure limit of not more than 5% of the maximum allowable working pressure in any part of the system between the pressure receptacle and the shut off valve of a flammable gas powered vehicle. In the NPRM, we proposed to revise paragraph (b)(2)(ii)(B)( *3* ) to specify that the pressure limit imposed applies to the entire closed system and that the maximum pressure allowed is 290 psig (2000 kPa). Also, consistent with the ICAO Technical Instructions, we proposed to revise paragraphs
(c)and
(d)to clarify that batteries may be protected against short circuits by the use of non-conductive caps that cover the entire terminal(s). We received no comments on these proposals; therefore, we are adopting them without change in this final rule. Section 173.222 This section establishes requirements for hazardous materials in equipment, machinery and apparatus. Because of the addition of Special Provision A105 in the HMT, the shipping paper requirements in paragraph
(d)no longer apply to transportation by aircraft. In the NPRM, we proposed to revise paragraph
(d)accordingly. No commenters addressed this proposal, and it is adopted without change in this final rule. A commenter [Laude] requests we remove the phrase “equipment” in this section. The phrase “equipment” is not part of the proper shipping name “Dangerous Goods in Machinery *or* Dangerous Goods in Apparatus” in the HMT. Therefore, we are editorially revising § 173.222 to remove the phrase “equipment” in the heading and regulatory text. Section 173.224 Section 173.224 establishes packaging and control and emergency temperatures for self-reactive materials. The Self-Reactive Materials Table in paragraph (b)(7) of this section specifies self-reactive materials authorized for transportation without first being approved for transportation by the Associate Administrator for Hazardous Materials Safety and requirements for transporting these materials. In the NPRM, we proposed to add a new entry to “Acetone-pyrogallol copolymer 2-diazo-1-naphthol-5-sulphonate” to the Self-Reactive Materials Table. We received no comments on this proposal, and are adopting it without change in this final rule. Section 173.230 In the NPRM, we proposed to add a new packaging section (§ 173.230) for the transportation of “Fuel cell cartridges *containing flammable liquids* , UN3473,” including methanol or methanol/water solutions. For consistency with the ICAO Technical Instructions, we proposed to require fuel cell cartridges containing flammable liquids, other than those packaged with equipment, to be packaged in specification packagings for all modes of transportation. Fuel cell cartridges packaged in or with equipment must be packaged in strong outer packagings. A commenter [HMT] suggests we add a special provision to the entry “Fuel cell cartridges containing flammable liquids” in the HMT that would allow fuel cell cartridges to be considered the inner packaging of a combination packaging so that shippers can take advantage of the limited quantity provisions for flammable liquids in § 173.150. We do not believe that such a clarification is necessary. A fuel cell cartridge, shipped under the provisions of § 173.150 as a limited quantity, may be considered the inner packaging provided all applicable requirements are met. The commenter also suggests we change the one liter net capacity limit to allow up to one liter volume of the flammable liquid itself. We do not agree. The net capacity of a fuel cell cartridge should be the capacity of the fuel cell cartridge containing the flammable liquid. This is consistent with the requirements for other flammable liquids shipped as a limited quantity in inner packagings or articles. Finally, the commenter recommends we authorize any rigid outer packaging conforming to the PG II performance level. We agree and are amending the requirements in paragraph (a)(2) accordingly. Section 173.301 On August 29, 2006, the **Federal Register** published a final rule under Docket HM-220F (71 *FR* 51122)) establishing additional requalification requirements for cylinders manufactured of aluminum alloy 6351-T6. In § 173.301, we moved a sentence prohibiting the use of DOT 3AL cylinders manufactured of aluminum alloy 6351-T6 for transporting pyrophoric gases from paragraph
(d)to a new paragraph (o). We revised the remaining requirement in paragraph (d). However, we inadvertently omitted a sentence prohibiting the use of aluminum alloy 6351-T6 for the manufacture of UN cylinders recently added in paragraph
(d)under a final rule published June 12, 2006 under Docket HM-220E (71 *FR* 33858). In this final rule, we are correcting § 173.301(o) by reinserting the language prohibiting the use of UN cylinders manufactured of aluminum alloy 6351-T6. Section 173.306 This section establishes transportation requirements for limited quantities of compressed gases. Paragraph
(i)of this section excepts aerosols with capacities under 50 mL (1.7 oz) and pressures not exceeding 970 kPa (141 psig) at 55 °C (131 °F) from all HMR requirements. In the NPRM, we proposed to expand this exception to aerosols with capacities of less than 50 mL (1.7 oz) and pressures of up to 290 psig (2000 kPa) provided the packagings conform to the general packaging requirements of Subpart B of Part 173. The proposed amendment is not consistent with provisions of the UN Recommendations or the ICAO Technical Instructions, which do not limit the pressure within the aerosol or small receptacle. We are not convinced that aerosols should be excepted from all regulation when the pressure in the container exceeds 290 psig (2000 kPa). Because the exceptions in the UN Recommendations and ICAO Technical Instructions include an exception from shipping paper, package marking, and labeling requirements, a carrier might not be aware of the potential risks associated with higher pressure aerosols and small gas receptacles. In addition, to avoid confusion and further clarify the intent of this exception, in the NPRM we proposed to revise paragraph
(i)to specify that the 50 mL exception for aerosols does not apply to self-defense sprays. It was not our intent to authorize the use of this exception for self-defense sprays. We received no comments on this proposal; it is adopted in this final rule. Part 175 Section 175.10 Currently, safety matches or lighters carried on board an aircraft and intended for use by a passenger or crew member are excepted from the HMR. Consistent with the ICAO Technical Instructions, in the NPRM we proposed to revise paragraph (a)(2) to limit the number of safety matches that may be carried on one's person or in carry-on baggage by a passenger or crewmember to one packet. We received no comments on this issue; therefore, it is adopted without change in this final rule. Section 175.78 Section 175.78 establishes requirements for stowing hazardous materials on an airplane. In the NPRM, we proposed to paragraph (c)(4) to clarify which explosive materials may be stowed together aboard an aircraft and to remove existing stowage references for explosive materials not authorized for transportation aboard aircraft under any circumstances. We received no comments on this issue; therefore, it is adopted without change in this final rule. Part 176 Section 176.76 Section 176.76 establishes requirements for vessel transportation of transport vehicles, freight containers, and portable tanks containing hazardous materials. Paragraph
(f)includes requirements for portable tanks containing flammable liquids or gases. Consistent with recent changes to the classification of flammable liquids based on the GHS and adopted into the UN Recommendations and discussed elsewhere in this preamble, in the NPRM we proposed to revise paragraph (f)(2) to specify the new upper limit for a PG III flammable liquid to be 60 °C (140 °F). We received no comments on this issue; therefore, it is adopted without change in this final rule. Section 176.83 Section 176.83 establishes segregation requirements for hazardous materials transported by vessel. In the NPRM, we proposed to revise paragraph (a)(4) to identify materials of different hazard classes that do not react dangerously with each other and, therefore, do not need to be segregated. No commenters addressed this proposal; it is adopted without change in this final rule. Section 176.84 Section 176.84 contains additional stowage and segregation requirements for hazardous materials on cargo and passenger vessels. Consistent with the 2004 Edition of the IMDG Code, incorporating Amendment 33-06, in the paragraph
(b)Table of provisions, in the NPRM we proposed to add new Code “144” to the entries “Plastic molding compound *in dough, sheet or extruded rope from evolving flammable vapor* ,” UN3314, and “Polymeric beads expandable, *evolving flammable vapor* ,” UN2211. New Code “144” specifies these materials must be mechanically ventilated in accordance with SOLAS Chapter II-2/Regulation 19 for flammable liquids with a flashpoint below 23 °C (73 °F) when stowed under deck. No comments addressed this issue; it is adopted without change in this final rule. Also, in the NPRM, we proposed to add a new note “2” following the Table. Note “2” provides an exception from the segregation requirements for Class 8, PG II and III materials, provided the substances do not react dangerously with one another and the quantities per package do not exceed 30 L (7.8 gallons) for liquids and 30 kg (66 lbs.) for solids. We also proposed to revise Codes “26,” “27,” “52,” and “53” to add the new Note “2.” One commenter [VOHMA] supports the proposal to add a new Note “2,” but suggests the following provision be added: “The transport document must include the statement required by § 172.203(i)(5) and a copy of the test report that verifies that the substances do not react dangerously with each other shall be provided if requested by the competent authority.” The commenter also recommends an additional shipping paper requirement under § 172.203 to indicate the utilization of this provision. The commenter bases its request on a need for consistency with the IMDG Code, and the need for verification to the carrier that the substances have been tested and do not react dangerously with each other. We acknowledge the commenter's recommendation that new Note “2” may require an accompanying statement on a transport document, such as a shipping paper, in order to adequately notify carriers of the use of this provision. We also acknowledge the commenter's suggestion that supporting documentation, such as a test report, should accompany shipments of these hazardous materials. Because these additional requirements were not proposed in the NPRM, they are beyond the scope of this rulemaking. However, we agree that carriers may need some notification of the use of this provision and will consider the issue in a future rulemaking. In this final rule, we are adopting the proposal to add new Note “2” to the Segregation Table, and to revise Codes “26,” “27,” “52,” and “53” by adding the new Note “2,” as proposed in the NPRM. In addition, we are also adopting the proposal to add Code “144” to the entries “Plastic molding compound *in dough, sheet or extruded rope from evolving flammable vapor* ,” UN3314, and “Polymeric beads expandable, *evolving flammable vapor* ,” UN2211, to specify these materials must be mechanically ventilated in accordance with SOLAS regulation II-2/19 (IBR; see § 171.7 of this subchapter) for flammable liquids with a flashpoint below 23 °C (73 ° F) when stowed under deck. Finally, in paragraph (b), we are revising Provisions “22,” “23,” and “109” to reflect the new upper flammability limit for flammable liquids. Also see §§ 173.35, 173.120, 173.121 and Appendix H to Part 173 preamble text. Part 178 Section 178.274 Section 178.274 establishes design, manufacturing, and test requirements for UN portable tanks. Currently, a prototype UN portable tank must be shown to be capable of absorbing the forces resulting from an impact not less than four times the maximum permissible gross weight of the fully loaded portable tank at a duration that is typical of the mechanical shocks experienced in rail transportation. Several standards describing methods acceptable for performing the impact test were previously listed in the UN Recommendations (6.7.3.15). The Fourth revised edition of the UN Manual of Tests and Criteria includes a dynamic longitudinal impact test for portable tanks. All procedures, test requirements, processing and analysis of data are found in Section 41 of Addendum 2 to the UN Manual of Tests and Criteria. Consistent with the UN Recommendations, in the NPRM we proposed to revise paragraph (j)(6) to require each UN portable tank design type be subjected to a dynamic longitudinal impact test to prove the ability of the portable tank to withstand the effects of a longitudinal impact. The NPRM proposed an effective for the new requirement of January 1, 2008, and further proposed that UN portable tanks impact-tested prior to January 1, 2008, based on the criteria in effect on October 1, 2005, need not be retested. We received no comments on this proposal; we are adopting it without change in this final rule. Section 178.602 Section 178.602 establishes requirements for the preparation of packagings for testing to ensure that the packaging conforms to the design requirements of the applicable specification. Currently, for the preparation of bags for the drop and stacking tests, paragraph
(b)requires bags to be filled to the maximum mass at which they may be used. In the NPRM, we proposed to revise paragraph
(b)to clarify that the preparation of bags for the drop and stacking tests only applies to bags containing solids. No commenters addressed this proposal; it is adopted without change in this final rule. Section 178.810 Section 178.810 establishes requirements for performing the drop test for IBCs. In the NPRM, we proposed to revise paragraph (b)(1) to clarify that metal, rigid plastic, and composite IBCs must be filled to not less than 95% of their maximum capacity when conducting drop tests for solids, and not less than 98% of their maximum capacity for liquids. Similarly, in paragraph (b)(2), we proposed to require fiberboard and wooden IBCs to be filled with a solid material to not less than 95% of their maximum capacity. Also, we proposed to add a new paragraph (b)(3) to require filling flexible IBCs to the maximum permissible gross mass and even distribution of the contents. No commenters addressed these proposals; they are adopted without change in this final rule. Part 180 Section 180.213 On August 29, 2006 the **Federal Register** published a final rule under Docket HM-220F (71 *FR* 51122) establishing additional requalification requirements for cylinders manufactured of aluminum alloy 6351-T6. In the amendatory language, we inadvertently revised paragraph
(d)rather than the paragraph
(d)introductory text. In this final rule, we are revising paragraph
(d)to correct this error. Section 180.352 Section 180.352 establishes requirements for retesting and inspection of IBCs to ensure that they continue to conform to the applicable specification. In the NPRM, we proposed to revise paragraph
(b)to specify that each IBC intended to contain solids that are loaded or discharged under pressure or intended to contain liquids must be tested in accordance with the leakproofness test prescribed in § 178.813 prior to its first use in transportation. For this test, the IBC is not required to have its closures fitted. These proposals incorporate clarifications adopted in the Fourteenth revised edition of the UN Recommendations. We received no comments on these proposals and are adopting them without change in this final rule. IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This final rule is published under the following statutory authorities: 1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. This final rule amends regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations and vessel stowage requirements. To this end, as discussed in detail earlier in this preamble, the final rule amends the HMR to more fully align them with the biennial updates of the UN Recommendations, the IMDG Code and the ICAO Technical Instructions; this will facilitate the transport of hazardous materials in international commerce. Harmonization serves to facilitate international transportation; at the same time, harmonization ensures the safety of people, property, and the environment by reducing the potential for confusion and misunderstanding that could result if shippers and transporters were required to comply with two or more conflicting sets of regulatory requirements. While the intent of this rulemaking is to align the HMR with international standards, we review and consider each amendment on its own merit based on its overall impact on transportation safety and the economic implications associated with its adoption into the HMR. Our goal is to harmonize without sacrificing the current HMR level of safety and without imposing undue burdens on the regulated public. Thus, as discussed in detail earlier in this preamble, there are several instances where we elected not to adopt a specific provision of the UN Recommendations, the IMDG Code or the ICAO Technical Instructions. Moreover, we are maintaining a number of current exceptions for domestic transportation that should minimize the compliance burden on the regulated community. 2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. This final rule amends the HMR to maintain alignment with international standards by incorporating various amendments to facilitate the transport of hazardous material in international commerce. To this end, as discussed in detail earlier in this preamble, the rule incorporates changes into the HMR based on the Fourteenth revised edition of the UN Recommendations, Amendment 33 to the IMDG Code, and the 2007-2008 ICAO Technical Instructions, which become effective January 1, 2007. The continually increasing amount of hazardous materials transported in international commerce warrants the harmonization of domestic and international requirements to the greatest extent possible. B. Executive Order 12866 and DOT Regulatory Policies and Procedures This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. The final rule is not considered a significant rule under the Regulatory Policies and Procedures of the Department of Transportation [44 FR 11034]. This final rule applies to offerors and carriers of hazardous materials, such as chemical manufacturers, chemical users and suppliers, packaging manufacturers, distributors, battery manufacturers, and radiopharmaceutical companies. Benefits resulting from the amendments in this final rule include enhanced transportation safety resulting from the consistency of domestic and international hazard communications and continued access to foreign markets by U.S. manufacturers of hazardous materials. The majority of amendments in this final rule result in cost savings and ease the regulatory compliance burden for shippers engaged in domestic and international commerce, including trans-border shipments within North America. We are authorizing a delayed effective date and a one-year transition period for the majority of amendments in this final rule; we are authorizing extended transition periods for certain amendments. The transition periods allow for training of employees and ease any burden on entities affected by the amendments. The total net increase in costs to businesses in implementing the final rule is considered to be minimal. The costs are the result of reprogramming shipping paper computer programs, replacement of pre-printed forms for firms that do not use automated systems, and changes to package markings and labels. Initial start-up and inventory costs result from these changes; however, the costs will be offset by greater long-term savings of conformance with one set of regulations and a one-year transition period. A regulatory evaluation is available for review in the public docket for this rulemaking. C. Executive Order 13132 This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule preempts State, local and Indian tribe requirements but does not impose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. The Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:
(1)The designation, description, and classification of hazardous material;
(2)The packing, repacking, handling, labeling, marking, and placarding of hazardous material;
(3)The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;
(4)The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and
(5)The design, manufacture, fabrication, inspection, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce. This final rule addresses covered subject items (1), (2), (3), and
(5)above and preempts State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This final rule is necessary to incorporate changes adopted in international standards, effective January 1, 2007. If the changes in this final rule are not adopted in the HMR, U.S. companies, including numerous small entities competing in foreign markets, would be at an economic disadvantage. These companies would be forced to comply with a dual system of regulations. The changes in this rulemaking are intended to avoid this result. Federal hazardous materials transportation law provides at section 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the **Federal Register** the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. The effective date of Federal preemption is March 29, 2007. D. Executive Order 13175 This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply. E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires an agency to review regulations to assess their impact on small entities, unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. This final rule facilitates the transportation of hazardous materials in international commerce by providing consistency with international standards. This final rule applies to offerors and carriers of hazardous materials, some of whom are small entities, such as chemical users and suppliers, packaging manufacturers, distributors, and battery manufacturers. As discussed above, under *Executive Order 12866* , the majority of amendments in this final rule result in cost savings and ease the regulatory compliance burden for shippers engaged in domestic and international commerce, including trans-border shipments within North America. Many companies will realize economic benefits as a result of these amendments. Additionally, the changes effected by this final rule will relieve U.S. companies, including small entities competing in foreign markets, from the burden of complying with a dual system of regulations. Therefore, I certify that the requirements in this final rule will not have a significant economic impact on a substantial number of small entities. This final rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered. F. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995, no person is required to respond to a collection of information unless it displays a valid Office of Management and Budget
(OMB)control number. Section 1320.8(d), Title 5, Code of Federal Regulations requires that PHMSA provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. PHMSA currently has two approved information collections affecting this final rule: OMB Control Number 2137-0557, “Approvals for Hazardous Materials” with 25,605 burden hours and $562,837.40 burden costs; and OMB Control Number 2137-0613, “Subsidiary Hazard Class & Number/Type of Packagings” with 63,309 burden hours and $216,705 burden costs. There are minor editorial changes under this rule. However, there is no net increase in burden for OMB Control Number 2137-0557 or OMB Control Number 2137-0613. We estimate the total information collection and recordkeeping burden as follows: “Approvals for Hazardous Materials” OMB Number 2137-0557: *Total Annual Number of Respondents:* 3,523. *Total Annual Responses:* 3,874.8. *Total Annual Burden Hours:* 25,605. *Total Annual Burden Cost:* $562,837.40. “Subsidiary Hazard Class & Number/Type of Packagings” OMB Number 2137-0613: *Total Annual Number of Respondents:* 250,000. *Total Annual Responses:* 6,337,500. *Total Annual Burden Hours:* 17,604. *Total Annual Burden Cost:* $216,705. *Total First Year Burden Hours:* 45,705. *Total First Year Burden Cost:* $1,115,992. Requests for a copy of this information collection should be directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous Materials Standards (PHH-10), Pipeline and Hazardous Materials Safety Administration, Room 8422, 400 Seventh Street, SW., Washington, DC 20590-0001, telephone
(202)366-8553. G. Regulation Identifier Number
(RIN)A regulation identifier number
(RIN)is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. H. Unfunded Mandates Reform Act This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 million or more to either State, local or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule. I. Environmental Assessment The National Environmental Policy Act of 1969
(NEPA)requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. We developed an assessment to determine the effects of these revisions on the environment and whether a more comprehensive environmental impact statement may be required. Consistency in the regulations for the transportation of hazardous materials aids in shipper understanding of the requirements and permits shippers to more easily comply with safety regulations and avoid the potential for environmental damage or contamination. Our findings conclude that there are no significant environmental impacts associated with this final rule. For interested parties, an Environmental Assessment is available in the public docket. J. Privacy Act Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit *http://dms.dot.gov.* List of Subjects 49 CFR Part 171 Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements. 49 CFR Part 172 Education, Hazardous materials transportation, Hazardous waste, Incorporation by reference, Labeling, Markings, Packaging and containers, Reporting and recordkeeping requirements. 49 CFR Part 173 Hazardous materials transportation, Incorporation by reference, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium. 49 CFR Part 175 Air carriers, Hazardous materials transportation, Incorporation by reference, Radioactive materials, Reporting and recordkeeping requirements. 49 CFR Part 176 Hazardous materials transportation, Incorporation by reference, Maritime carriers, Radioactive materials, Reporting and recordkeeping requirements. 49 CFR Part 178 Hazardous materials transportation, Incorporation by reference, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements. 49 CFR Part 180 Hazardous materials transportation, Motor carriers, Motor vehicle safety, Packaging and containers, Railroad safety, Reporting and recordkeeping requirements. In consideration of the foregoing, 49 CFR Chapter I is amended as follows: PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS 1. The authority citation for part 171 continues to read as follows: Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134 section 31001. 2. In § 171.7, in the paragraph (a)(3) table, the following changes are made: a. Under the entry “International Civil Aviation Organization (ICAO),” the entry “Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), 2005-2006 Edition” is revised; b. Under the entry “International Maritime Organization (IMO),” the entries “International Convention for the Safety of Life at Sea, (SOLAS) Amendments 2000, Chapter II-2/Regulation 19, 2001” and “International Maritime Dangerous Goods Code (IMDG Code), 2004 Edition, Incorporating Amendment 32-04 (English Edition), Volumes 1 and 2” are revised; c. Under the entry “United Nations,” the entry “UN Recommendations on the Transport of Dangerous Goods, Thirteenth Revised Edition (2003), Volumes I and II” is revised; d. Under the entry “United Nations,” the entry “UN Recommendations on the Transport of Dangerous Goods, Manual of Tests and Criteria, Fourth Revised Edition, (2003)” is revised. The revisions read as follows: § 171.7 Reference material.
(a)* * *
(3)*Table of material incorporated by reference. * * ** Source and name of material 49 CFR reference * * * * * * * *International Civil Aviation Organization (ICAO),* * * * * * * * Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), 2007-2008 Edition 171.8; 171.11; 172.202; 172.401; 172.512; 172.602; 173.320; 175.33; 178.3. *International Maritime Organization (IMO),* * * * * * * * International Convention for the Safety of Life at Sea, (SOLAS) Amendments 2000, Chapter II-2/Regulation 19, 2001 176.63; 176.84. International Maritime Dangerous Goods Code (IMDG Code), 2006 Edition, Incorporating Amendment 33-06 (English Edition), Volumes 1 and 2 171.12; 172.202; 172.401; 172.502; 172.602; 173.21; 176.2; 176.5; 176.11; 176.27; 176.30; 178.3; 178.274. * * * * * * * *United Nations,* * * * * * * * UN Recommendations on the Transport of Dangerous Goods, Fourteenth revised edition (2005), Volumes I and II 171.8; 171.12; 172.202; 172.401; 172.502; 173.22; 173.24; 173.24b; 173.40; 173.192; 173.197; 173.302b; 173.304b; 178.75; 178.274; 178.801. UN Recommendations on the Transport of Dangerous Goods, Manual of Tests and Criteria, Fourth revised edition, (2003), and Addendum 2,
(2004)172.102; 173.21; 173.56; 173.57; 173.58; 173.115; 173.124; 173.125; 173.127; 173.128; 173.137; 173.185; Part 173, appendix H; 178.274. * * * * * * * 3. In § 171.14, paragraph
(b)is removed and reserved; paragraphs
(d)introductory text, (d)(1) and (d)(2) are revised; paragraphs (d)(7) and (d)(8) are removed; paragraphs
(e)and
(f)are revised; and new paragraph
(g)is added to read as follows: § 171.14 Transitional provisions for implementing certain requirements.
(b)[Reserved]
(d)A final rule published in the **Federal Register** on December 29, 2006, effective January 1, 2007, resulted in revisions to this subchapter. During the transition period, until January 1, 2008, as provided in paragraph (d)(1) of this section, a person may elect to comply with either the applicable requirements of this subchapter in effect on December 31, 2006, or the requirements published in the December 29, 2006 final rule.
(1)*Transition dates.* The effective date of the final rule published on December 29, 2006 is January 1, 2007. A delayed compliance date of January 1, 2008, is authorized. Unless otherwise specified, on and after January 1, 2008, all applicable regulatory requirements adopted in the final rule in effect on January 1, 2007, must be met.
(2)*Intermixing old and new requirements.* Marking, labeling, placarding, and shipping paper descriptions must conform to either the old requirements of this subchapter in effect on December 31, 2006, or the new requirements of this subchapter in the final rule without intermixing communication elements, except that intermixing is permitted during the applicable transition period for packaging, hazard communication and handling provisions, as follows:
(i)If either shipping names or identification numbers are identical, a shipping paper may display the old shipping description even if the package is marked and labeled under the new shipping description;
(ii)If either shipping names or identification numbers are identical, a shipping paper may display the new shipping description; and
(iii)Either old or new placards may be used regardless of whether old or new shipping descriptions, labels, and package markings are used.
(e)The shipping description sequences in effect on December 31, 2006, may be used until January 1, 2013.
(f)Except for transportation by highway, a Division 5.2 label and a Division 5.2 placard conforming to the specifications in §§ 172.427 and 172.552, respectively, of this subchapter in effect on December 31, 2006, may be used until January 1, 2011. For transportation by highway, a Division 5.2 placard conforming to the specifications in § 172.552 of this subchapter in effect on December 31, 2006 may be used until January 1, 2014.
(g)The Class 3 and Division 6.1 classification criteria and packing group assignments in effect on December 31, 2006, may be used until January 1, 2012. PART 172—HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND TRAINING REQUIREMENTS 4. The authority citation for part 172 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 44701; 49 CFR 1.53. 5. In § 172.101, paragraph (d)(4) is revised and the Hazardous Materials Table is amended by removing, adding and revising, in the appropriate alphabetical sequence, to read as follows: § 172.101 Purpose and use of hazardous materials table.
(d)* * *
(4)Each reference to a Class 3 material is modified to read “Combustible liquid” when that material is reclassified in accordance with § 173.150(e) or
(f)of this subchapter or has a flash point above 60 °C (140 °F) but below 93 °C (200 °F). § 172.101 Hazardous Materials Table Symbols Hazardous materials descriptions and proper shipping names Hazard class or division Identification numbers PG Label codes Special provisions (§ 172.102)
(8)Packaging (§ 173.***) Exceptions Non-bulk Bulk
(9)Quantity limitations Passenger aircraft/rail Cargo aircraft only
(10)Vessel stowage Location Other
(10B)* * * * * * * Carbon dioxide and nitrous oxide mixtures 2.2 UN1015 2.2 306 None 314, 315 75 kg 150 kg A. * * * * * * * Carbon dioxide and oxygen mixtures, compressed 2.2 UN1014 2.2, 5.1 77, A14 306 304 314, 315 75 kg 150 kg A. * * * * * * * Carbon monoxide and hydrogen mixture, compressed 2.3 UN2600 2.3, 2.1 6 None 302 302 Forbidden Forbidden D 40 * * * * * * * Crotonaldehyde, stabilized 6.1 UN1143 I 6.1, 3 2, B9, B14, B32, B74, B77, T20, TP2, TP13, TP38, TP45 None 227 244 Forbidden Forbidden B 40. Crotonic acid, *liquid* 8 UN2823 III 8 IB8, T1 154 203 241 5 L 60 L A 12. Crotonic acid, *solid* 8 UN2823 III 8 IB8, IP3, T1, TP33 154 213 240 25 kg 100 kg A 12. * * * * * * * Formic acid 8 UN1779 II -8 B2, B28, IB2, T7, TP2 154 202 242 1 L 30 L A 40 * * * * * * * Hydrogen difluorides, n.o.s 8 UN1740 II 8 IB8, IP2, IP4, N3, N34, T3, TP33 None 212 240 15 kg 50 kg A 25, 40, 52. * * * * * * * III 8 IB8, IP3, N3, N34, T1, TP33 154 213 240 25 kg 100 kg A 25, 40, 52. * * * * * * * Hydroquinone, solid 6.1 UN2662 III 6.1 IB8, IP3, T1, TP33 153 213 240 100 kg 200 kg A. Hydroquinone solution 6.1 UN3435 III 6.1 IB3, T4, TP1 153 203 241 60 L 220 L A. * * * * * * * Propionic acid 8 UN1848 III 8 IB3, T4, TP1 154 203 241 5 L 60 L A. * * * * * * * Rare gases and nitrogen mixtures, compressed 2.2 UN1981 2.2 306 302 None 75 kg 150 kg A. * * * * * * * Rare gases and oxygen mixtures, compressed 2.2 UN1980 2.2 79 306 302 None 75 kg 150 kg A * * * * * * * Rare gases mixtures, compressed 2.2 UN1979 2.2 306 302 None 75 kg 150 kg A * * * * * * * Regulated medical waste 6.2 UN3291 II 6.2 A13 134 197 197 No limit No limit A 40. * * * * * * * [Add]: * * * * * * * Crotonaldehyde or Crotonaldehyde, stabilized 6.1 UN1143 I 6.1, 3 2, 175, B9, B14, B32, B74, B77, T20, TP2, TP13, TP38, TP45 None 227 244 Forbidden Forbidden B 40. Crotonic acid, liquid 8 UN3472 III 8 IB8, T1 154 203 241 5 L 60 L A 12. Crotonic acid, solid 8 UN2823 III 8 IB8, IP3, T1, TP33 154 213 240 25 kg 100 kg A 12. * * * * * * * Formic acid *with not less than 10% but not more than 85% acid by mass* 8 UN3412 II 8 IB2, T7, TP2 154 202 242 1 L 30 L A 40. Formic acid *with not less than 5% but less than 10% acid by mass* 8 UN3412 III 8 IB3, T4, TP1 154 203 241 5 L 60 L A 40 Formic acid *with more than 85% acid by mass* 8 UN1779 II 8, 3 B2, B28, IB2, T7, TP2 154 202 242 1 L 30 L A 40. * * * * * * * Fuel cell car- tridges. *containing flammable liquids* 3 UN3473 II 3 150 230 None 5 L 60 L A * * * * * * * Hydrogendifluorides, solid, n.o.s 8 UN1740 II 8 IB8, IP2, IP4, N3, N34, T3, TP33 None 212 240 15 kg 50 kg A 25, 40, 52. III 8 IB8, IP3, N3, N34, T1, TP33 154 213 240 25 kg 100 kg A 25, 40, 52. Hydrogendifluoride solution, n.o.s 8 UN3471 II 8, 6.1 IB2, T7, TP2 154 202 242 1 L 30 L A 25, 40, 52. III 8, 6.1 IB3, T4, TP1 154 203 241 5 L 60 L A 25, 40, 52. * * * * * * * Nitric acid *other than red fuming with not more than 20 percent nitric acid* 8 UN2031 II 8 A6, B2, B47, B53, IB2, T8, TP2, TP12 None 158 242 1 L 30 L D * * * * * * * Paint, corrosive, flammable *(including paint, lacquer, enamel, stain, shellac, varnish, polish, liquid filler and liquid lacquer base)* 8 UN3470 II 8, 3 IB2, T7, TP2, TP8, TP28 154 202 243 1 L 30 L B 40. Paint related material corrosive, flammable *(including paint thinning or reducing compound)* 8 UN3470 II 8, 3 IB2, T7, TP2, TP8, TP28 154 202 243 1 L 30 L B 40. * * * * * * * Paint, flammable, corrosive *(including paint, lacquer, enamel, stain, shellac, varnish, polish, liquid filler and liquid lacquer base)* 3 UN3469 I 3, 8 T11, TP2, TP27 None 201 243 0.5 L 2.5 L E 40. II 3, 8 IB2, T7, TP2, TP8, TP28 150 202 243 1 L 5 L B 40. III 3, 8 IB3, T4, TP1, TP29 150 203 242 5 L 60 L A 40. Paint related material, flammable, corrosive *(including paint thinning or reducing compound* 3 UN3469 I 3, 8 T11, TP2, TP27 None 201 243 0.5 L 2.5 L E 40. II 3, 8 IB2, T7, TP2, TP8, TP28 150 202 243 1 L 5 L B 40. III 3, 8 IB3, T4, TP1, TP29 150 203 242 5 L 60 L A 40. * * * * * * * Propionic acid *with not less than 90% acid by mass* 8 UN3463 II 8, 3 IB2, T7, TP2 154 202 243 1 L 30 L A. Propionic acid *with not less than 10% and less than 90% acid by mass* 8 UN1848 III 8 IB3, T4, TP1 154 203 241 5 L 60 L A. * * * * * * * Regulated medical waste, n.o.s. *or* Clinical waste, unspecified, n.o.s. *or*
(BIO)Medical waste, n.o.s 6.2 UN3291 II 6.2 A13 134 197 197 No limit No limit B 40. * * * * * * * [Revise]: * * * * * * * Aerosols, *non-flammable,(each not exceeding 1 L capacity)* 2.2 UN1950 2.2 306 None None 75 kg 150 kg A 48, 87, 126. * * * * * * * G Amines, flammable, corrosive, n.o.s. *or* Polyamines, flammable, corrosive, n.o.s. 3 UN2733 I 3, 8 T14, TP1, TP27 None 201 243 0.5 L 2.5 L D 40, 52. II 3, 8 IB2, T11, TP1, TP27 150 202 243 1 L 5 L B 40, 52. III 3, 8 B1, IB3, T7, TP1, TP28 150 203 242 5 L 60 L A 40, 52. * * * * * * * Aminopyridines *(o-; m-; p-)* 6.1 UN2671 II 6.1 IB8, IP2, IP4, T3, TP33 153 212 242 25 kg 100 kg B 12, 40, 52. I Ammonia, anhydrous 2.3 UN1005 2.3, 8 4, T50 None 304 314, 315 Forbidden Forbidden D 40, 52, 57. D Ammonia, anhydrous 2.2 UN1005 2.2 13, T50 None 304 314, 315 Forbidden Forbidden D 40, 52, 57. D Ammonia solution, *relative density less than 0.880 at 15 degrees C in water, with more than 50 percent ammonia* 2.2 UN3318 2.2 13,T50 None 304 314, 315 Forbidden Forbidden D 40, 52, 57. I Ammonia solution, *relative density less than 0.880 at 15 degrees C in water, with more than 50 percent ammonia* 2.3 UN3318 2.3, 8 4,T50 None 304 314, 315 Forbidden Forbidden D 40, 52, 57. Ammonia solutions, *relative density between 0.880 and 0.957 at 15 degrees C in water, with more than 10 percent but not more than 35 percent ammonia* 8 UN2672 III 8 IB3, IP8, T7, TP1 154 203 241 5 L 60 L A 40, 52, 85. Ammonia solutions, *relative density less than 0.880 at 15 degrees C in water, with more than 35 percent but not more than 50 percent ammonia* 2.2 UN2073 2.2 306 304 314, 315 Forbidden 150 kg E 40, 52, 57. * * * * * * * Antimony trichloride, solid 8 UN1733 II 8 IB8, IP2, IP4, T3, TP33 154 212 240 15 kg 50 kg A 40. * * * * * * * Articles, explosive, extremely insensitive *or* Articles, EEI 1.6N UN0486 II 1.6N None 62 None Forbidden Forbidden 07 G Articles, explosive, n.o.s 1.4S UN0349 II 1.4S None 62 None 25 kg 100 kg 05 G Articles, explosive, n.o.s 1.4B UN0350 II 1.4B None 62 None Forbidden Forbidden 06 G Articles, explosive, n.o.s 1.4C UN0351 II 1.4C None 62 None Forbidden 75 kg 06 G Articles, explosive, n.o.s 1.4D UN0352 II 1.4D None 62 None Forbidden 75 kg 06 G Articles, explosive, n.o.s 1.4G UN0353 II 1.4GD None 62 None Forbidden 75 kg 06 G Articles, explosive, n.o.s 1.1L UN0354 II 1.1L None 62 None Forbidden Forbidden 08 8E, 14E, 15E, 17E. G Articles, explosive, n.o.s 1.2L UN0355 II 1.2L None 62 None Forbidden Forbidden 08 8E, 14E, 15E, 17E. G Articles, explosive, n.o.s 1.3L UN0356 II 1.3L None 62 None Forbidden Forbidden 08 8E, 14E, 15E, 17E. G Articles, explosive, n.o.s 1.1C UN0462 II 1.1C None 62 None Forbidden Forbidden 07 G Articles, explosive, n.o.s 1.1D UN0463 II 1.1D None 62 None Forbidden Forbidden 07 G Articles, explosive, n.o.s 1.1E UN0464 II 1.1E None 62 None Forbidden Forbidden 07 G Articles, explosive, n.o.s 1.1F UN0465 II 1.1F None 62 None Forbidden Forbidden 08 G Articles, explosive, n.o.s 1.2C UN0466 II 1.2C None 62 None Forbidden Forbidden 07 G Articles, explosive, n.o.s 1.2D UN0467I I 1.2D None 62 None Forbidden Forbidden 07 G Articles, explosive, n.o.s 1.2E UN0468 II 1.2E None 62 None Forbidden Forbidden 07 G Articles, explosive, n.o.s 1.2F UN0469 II 1.2F None 62 None Forbidden Forbidden 08 G Articles, explosive, n.o.s 1.3C UN0470 II 1.3C None 62 None Forbidden Forbidden 07 G Articles, explosive, n.o.s 1.4E UN0471 II 1.4E None 62 None Forbidden 75 kg 06 G Articles, explosive, n.o.s 1.4F UN0472 II 1.4F None 62 None Forbidden Forbidden 08 * * * * * * * Batteries, dry, containing potassium hydroxide solid, *electric, storage* 8 UN3028 III 8 None 213 None 25 kg gross 230 kg gross A 52. * * * * * * * Batteries, wet, filled with alkali, *electric storage* 8 UN2795 III 8 159 159 159 30 kg gross No limit A 52. * * * * * * * Battery fluid, alkali 8 UN2797 II 8 B2, IB2, N6, T7, TP2, TP28 154 202 242 1 L 30 L A 29, 52. * * * * * * * Benzyl bromide 6.1 UN1737 II 6.1, 8 A3, A7, IB2, N33, N34, T8, TP2, TP12, TP13 None 202 243 1 L 30 L D 13, 40. Benzyl chloride 6.1 UN1738 II 6.1, 8 A3, A7, B70, IB2, N33, N42, T8, TP2, TP12, TP13 None 202 243 1 L 30 L D 13, 40. * * * * * * * Caesium hydroxide 8 UN2682 II 8 IB8, IP2, IP4, T3, TP33 154 212 240 15 kg 50 kg A 29, 52. Caesium hydroxide solution 8 UN2681 II 8 B2, IB2, T7, TP2 154 202 242 1 L 30 L A 29, 52. III 8 IB3, T4, TP1 154 202 241 5 L 60 L A 29, 52. * * * * * * * Calcium hypochlorite, hydrated *or* Calcium hypochlorite, hydrated mixtures, *with not less than 5.5 percent but not more than 16 percent water* 5.1 UN2880 II 5.1 165, IB8, IP2, IP4, IP13, W9 152 212 240 5 kg 25 kg D 4, 25, 48, 52, 56, 58, 69, 142. G Caustic alkali liquids, n.o.s 8 UN1719 II 8 B2, IB2, T11, TP2, TP27 154 202 242 1 L 30 L A 29, 52. III 8 IB3, T7, TP1, TP28 154 203 241 5 L 60 L A 29, 52. * * * * * * * Charges, shaped, flexible, linear 1.1D UN0288 II 1.1D None 62 None Forbidden Forbidden 07 * * * * * * * Chlorosilanes, corrosive, n.o.s 8 UN2987 II 8 B2, IB2, T14, TP2, TP27 None 202 242 1 L 30 L C 40. Chlorosilanes, flammable, corrosive, n.o.s 3 UN2985 II 3, 8 IB1, T11, TP2, TP13, TP27 None 201 243 1 L 5 L B 40. Chlorosilanes, toxic, corrosive, n.o.s 6.1 UN3361 II 6.1, 8 IB1, T11, TP2, TP13 None 202 243 1 L 30 L C 40. Chlorosilanes, toxic, corrosive, flammable, n.o.s 6.1 UN3362 II 6.1, 3, 8 IB1, T11, TP2, TP13 None 202 243 1 L 30 L C 40, 125. * * * * * * * Chromium trioxide, anhydrous 5.1 UN1463 II 5.1, 6.1, 8 IB8, IP4, T3, TP33 None 212 242 5 kg 25 kg A * * * * * * * G Components, explosive train, n.o.s 1.2B UN0382 II 1.2B None 62 None Forbidden Forbidden 11 G Components, explosive train, n.o.s 1.4B UN0383 II 1.4B None 62 None Forbidden 75 kg 06 G Components, explosive train, n.o.s 1.4S UN0384 II 1.4S None 62 None 25 kg 100 kg 05 G Components, explosive train, n.o.s 1.1B UN0461 II 1.1B None 62 None Forbidden Forbidden 11 * * * * * * * G Compressed gas, n.o.s 2.2 UN1956 2.2 77 306, 307 302, 305 314, 315 75 kg 150 kg A. * * * * * * * Contrivances, water-activated, *with burster, expelling charge or propelling charge* 1.2L UN0248 II 1.2L None 62 None Forbidden Forbidden 08 8E, 14E, 15E, 17E. Contrivances, water-activated, *with burster, expelling charge or propelling charge* 1.3L UN0249 II 1.3L None 62 None Forbidden Forbidden 08 8E, 14E, 15E, 17E. * * * * * * * G Corrosive, liquid, acidic, inorganic, n.o.s 8 UN3264 I 8 A6, B10, T14, TP2, TP27 None 201 243 0.5 L 2.5 L B 40. II 8 B2, IB2, T11, TP2, TP27 154 202 242 1 L 30 L B 40. III 8 IB3, T7, TP1, TP28 154 203 241 5 L 60 L A 40. * * * * * * * Dangerous Goods in Machinery *or* Dangerous Goods in Apparatus 9 UN3363 136, A105 None 222 None See A105 See A105 A. * * * * * * * Dimethylamine solution 3 UN1160 II 3, 8 IB2, T7, TP1 150 202 243 1 L 5 L B 52. * * * * * * * 1, 3-Dimethylbutylamine 3 UN2379 II 3, 8 IB2, T7, TP1 150 202 243 1 L 5 L B 52. * * * * * * * Dimethylhydrazine, symmetrical 6.1 UN2382 I 6.1, 3 2, B9, B14, B32, B74, B77, T20, TP2, TP13, TP38, TP45 None 227 244 Forbidden Forbidden D 40, 52, 74. Dimethylhydrazine, unsymmetrical 6.1 UN1163 I 6.1, 3, 8 2, B7, B9, B14, B32, B74, T20, TP2, TP13, TP38, TP45 None 227 244 Forbidden Forbidden D 21, 38, 40, 52, 100. * * * * * * * Disodium trioxosilicate 8 UN3253 III 8 IB8, IP3, T1, TP33 154 213 240 25 kg 100 kg A 52. * * * * * * * Ethanolamine *or* Ethanolamine solutions 8 UN2491 III 8 IB3, T4, TP1 154 203 241 5 L 60 L A 52. * * * * * * * Ethylamine, aqueous solution *with not less than 50 percent but not more than 70 percent ethylamine* 3 UN2270 II 3, 8 IB2, T7, TP1 150 202 243 1 L 5 L B 40, 52. * * * * * * * Ethylenediamine 8 UN1604 II 8, 3 IB2, T7, TP2 154 202 243 1 L 30 L A 40, 52. * * * * * * * 1-Ethylpiperidine 3 UN2386 II 3, 8 IB2, T7, TP1 150 202 243 1 L 5 L B 52. * * * * * * * Ethyltrichlorosilane 3 UN1196 II 3, 8 A7, IB1, N34, T7, TP2, TP13 None 202 243 1 L 5 L B 40. * * * * * * * Hydrazine, anhydrous 8 UN2029 I 8, 3, 6.1 A3, A6, A7, A10, B7, B16, B53 None 201 243 Forbidden 2.5 L D 40, 52, 125. Hydrazine, aqueous solution, *with not more than 37 percent hydrazine, by mass* 6.1 UN3293 III 6.1 IB3, T4, TP1 153 203 241 60 L 220 L A 52. * * * * * * * Hydrazine, aqueous solution, *with more than 37 % hydrazine, by mass* 8 UN2030 I 8, 6.1 B16, B53, T10, TP2, TP13 None 201 243 Forbidden 2.5 L D 40, 52. II 8, 6.1 B16, B53, IB2, T7, TP2, TP13 None 202 243 Forbidden 30 L D 40, 52. III 8, 6.1 B16, B53, IB3, T4, TP1 None 203 241 5 L 60 L D 40, 52. * * * * * * * Hydrogen in a metal hydride storage system 2.1 UN3468 2.1 167 None 214 None Forbidden 100 kg gross D * * * * * * * Hydrogen peroxide and peroxyacetic acid mixtures, stabilized *with acids, water, and not more than 5 percent peroxyacetic acid* 5.1 UN3149 II 5.1, 8 145, A2, A3, A6, B53, IB2, IP5, T7, TP2, TP6, TP24 None 202 243 1 L 5 L D 25, 66, 75. Hydrogen peroxide, aqueous solutions *with more than 40 percent but not more than 60 percent hydrogen peroxide (stabilized as necessary)* 5.1 UN2014 II 5.1, 8 12, B53, B80, B81, B85, IB2, IP5, T7, TP2, TP6, TP24, TP37 None 202 243 Forbidden Forbidden D 25, 66, 75. Hydrogen peroxide, aqueous solutions *with not less than 20 percent but not more than 40 percent hydrogen peroxide (stabilized as necessary)* 5.1 UN2014 II 5.1, 8 A2, A3, A6, B53, IB2, IP5, T7, TP2, TP6, TP24, TP37 None 202 243 1 L 5 L D 25, 66, 75. Hydrogen peroxide, aqueous solutions *with not less than 8 percent but less than 20 percent hydrogen peroxide (stabilized as necessary)* 5.1 UN2984 III 5.1 A1, IB2 IP5, T4, TP1, TP6, TP24, TP37 152 203 243 2.5 L 30 L B 25, 66, 75. Hydrogen peroxide, stabilized *or* Hydrogen peroxide aqueous solutions, stabilized *with more than 60 percent hydrogen peroxide* 5.1 UN2015 I 5.1, 8 12, B53, B80, B81, B85, T9, TP2, TP6, TP24, TP37 None 201 243 Forbidden Forbidden D 25, 66, 75. * * * * * * * Hypochlorite solutions 8 UN1791 II 8 A7, B2, B15, IB2, IP5, N34, T7, TP2, TP24 154 202 242 1 L 30 L B 26. * * * * * * * Lead phosphite, dibasic 4.1 UN2989 II 4.1 IB8, IP2, IP4, T3, TP33 None 212 240 15 kg 50 kg B 34. III 4.1 IB8, IP3, T1, TP33 151 213 240 25 kg 100 kg B 34. * * * * * * * Lithium hydroxide 8 UN2680 II 8 IB8, IP2, IP4, T3, TP33 154 212 240 15 kg 50 kg A 52. Lithium hydroxide, solution 8 UN2679 II 8 B2, IB2, T7, TP2 154 202 242 1 L 30 L A 29, 52. III 8 IB3, T4, TP2 154 203 241 5 L 60 L A 29, 52, 96. * * * * * * * Methylamine, aqueous solution 3 UN1235 II 3, 8 B1, IB2, T7, TP1 150 202 243 1 L 5 L E 52, 135. * * * * * * * Methylhydrazine 6.1 UN1244 I 6.1, 3, 8 1, B7, B9, B14, B30, B72, B77, N34, T22, TP2, TP13, TP38, TP44 None 226 244 Forbidden Forbidden D 21, 40, 49, 52, 100. * * * * * * * Methylphenyldichlorosilane 8 UN2437 II 8 IB2, T7, TP2, TP13 None 202 242 1 L 30 L C 40. 1-Methylpiperidine 3 UN2399 II 3, 8 IB2, T7, TP1 150 202 243 1 L 5 L B 52. * * * * * * * + Motor fuel anti-knock mixtures 6.1 UN1649 I 6.1 14, 151, B9, B90, T14, TP2, TP13 None 201 244 Forbidden 30 L D 25, 40. * * * * * * * G Organoarsenic compound, liquid, n.o.s 6.1 UN3280 I 5, T14, TP2, TP13, TP27 None 201 242 1 L 30 L B 6.1 II 6.1 IB2, T11, TP2, TP27 153 202 242 5L 60L B III 6.1 IB3, T7, TP1, TP28 153 203 241 60 L 220 L A * * * * * * * G Organometallic substance, solid, pyrophoric 4.2 UN3391 I 4.2 T21, TP7, TP33 None 187 244 Forbidden Forbidden D G Organometallic substance, solid, pyrophoric, water-reactive 4.2 UN3393 I 4.2, 4.3 B11, T21, TP7, TP33 None 187 244 Forbidden Forbidden D 52. * * * * * * * Paint *including paint, lacquer, enamel, stain, shellac solutions, varnish, polish, liquid filler and liquid lacquer base* 3 UN1263 I 3 T11, TP1, TP8, TP27 150 201 243 1 L 30 L E II 3 149, B52, IB2, T4, TP1, TP8, TP28 150 173 242 5 L 60 L B III 3 B1, B52, IB3, T2, TP1, TP29 150 173 242 60 L 220 L A Paint *or* Paint related materials 8 UN3066 II 8 B2, IB2, T7, TP2, TP28 154 173 242 1 L 30 L A III 8 B52, IB3, T4, TP1, TP29 154 173 241 5 L 60 L A Paint related material *including paint thinning, drying, removing, or reducing compound* 3 UN1263 I 3 T11, TP1, TP8, TP27 150 201 243 1 L 30 L E II 3 149, B52, IB2, T4, TP1, TP8, TP28 150 173 242 5 L 60 L B III 3 B1, B52, IB3, T2, TP1, TP29 150 173 242 60 L 220 L A * * * * * * * Plastic molding compound *in dough, sheet or extruded rope form evolving flammable vapor* 9 UN3314 III 9 32, IB8, IP3, IP7 155 221 221 100 kg 200 kg E 19, 21, 25, 87, 144. * * * * * * * Polymeric beads expandable, *evolving flammable vapor* 9 UN2211 III 9 32, IB8, IP3, IP7, T1, TP33 155 221 221 100 kg 200 kg E 19, 21. 25, 87, 144. * * * * * * * Potassium hydroxide, solid 8 UN1813 II 8 IB8, IP2, IP4, T3, TP33 154 212 240 15 kg 50 kg A 52. Potassium hydroxide, solution 8 UN1814 II 8 B2, IB2, T7, TP2 154 202 242 1 L 30 L A 52. III 8 IB3, T4, TP1 154 203 241 5 L 60 L A 52. * * * * * * * Potassium monoxide 8 UN2033 II 8 IB8, IP2, IP4, T3, TP33 154 212 240 15 kg 50 kg A 29, 52. * * * * * * * Pyrrolidine 3 UN1922 II 3, 8 IB2, T7, TP1 150 202 243 1 L 5 L B 40, 52 * * * * * * * Rubidium hydroxide 8 UN2678 II 8 IB8, IP2, IP4, T3, TP33 154 212 240 15 kg 50 kg A 29, 52. Rubidium hydroxide solution 8 UN2677 II 8 B2, IB2, T7, TP2 154 202 242 1 L 30 L A 29, 52. III 8 IB3, T4, TP1 154 203 241 5 L 60 L A 29, 52. * * * * * * * Soda lime *with more than 4 percent sodium hydroxide* 8 UN1907 III 8 IB8, IP3, T1, TP33 154 213 240 25 kg 100 kg A 52. * * * * * * * Sodium aluminate, solution 8 UN1819 II 8 B2, IB2, T7, TP2 154 202 242 1 L 30 L A 52. III 8 IB3, T4, TP1 154 203 241 5 L 60 L A 52. * * * * * * * Sodium hydrosulfide, *with less than 25 percent water of crystallization* 4.2 UN2318 II 4.2 A7, A19, A20, IB6, IP2, T3, TP33 None 212 241 15 kg 50 kg A 52. * * * * * * * Sodium hydroxide, solid 8 UN1823 II 8 IB8, IP2, IP4, T3, TP33 154 212 240 15 kg 50 kg A 52. Sodium hydroxide solution 8 UN1824 II 8 B2, IB2, N34, T7, TP2 154 202 242 1 L 30 L A 52. III 8 IB3, N34, T4, TP1 154 203 241 5 L 60 L A 52. * * * * * * * Sodium monoxide 8 UN1825 II 8 IB8, IP2, IP4, T3, TP33 154 212 240 15 kg 50 kg A 52. * * * * * * * Sodium sulfide, hydrated *with not less than 30 percent water* 8 UN1849 II 8 IB8, IP2, IP4, T3, TP33 154 212 240 15 kg 50 kg A 52. * * * * * * * G Substances, explosive, n.o.s 1.1L UN0357 II 1.1L None 62 None Forbidden Forbidden 8E, 14E, 15E, 17E. G Substances, explosive, n.o.s 1.2L UN0358 II 1.2L None 62 None Forbidden Forbidden 8E, 14E, 15E, 17E. G Substances, explosive, n.o.s 1.3L UN0359 II 1.3L None 62 None Forbidden Forbidden 8E, 14E, 15E, 17E. G Substances, explosive, n.o.s 1.1A UN0473 II 1.1A 111 None 62 None Forbidden Forbidden 12 G Substances, explosive, n.o.s 1.1C UN0474 II 1.1C None 62 None Forbidden Forbidden 10 G Substances, explosive, n.o.s 1.1D UN0475 II 1.1D None 62 None Forbidden Forbidden 10 G Substances, explosive, n.o.s 1.1G UN0476 II 1.1G None 62 None Forbidden Forbidden 08 G Substances, explosive, n.o.s 1.3C UN0477 II 1.3C None 62 None Forbidden Forbidden 10 G Substances, explosive, n.o.s 1.3G UN0478 II 1.3G None 62 None Forbidden Forbidden 08 G Substances, explosive, n.o.s 1.4C UN0479 II 1.4C None 62 None Forbidden 75 kg 09 G Substances, explosive, n.o.s 1.4D UN0480 II 1.4D None 62 None Forbidden 75 kg 09 G Substances, explosive, n.o.s 1.4S UN0481 II 1.4S None 62 None 25 kg 75 kg 05 G Substances, explosive, n.o.s 1.4G UN0485 II 1.4G None 62 None Forbidden 75 kg 08 G Substances, explosive, very insensitive, n.o.s. *or* Substances,EVI, n.o.s. 1.5D UN0482 II 1.5D None 62 None Forbidden Forbidden 10 * * * * * * * I Sulfur 4.1 UN1350 III 4.1 30, IB8, IP3, T1, TP33 None None 240 25 kg 100 kg A 19, 74. * * * * * * * Tetraethylenepentamine 8 UN2320 III 8 IB3, T4, TP1 154 203 241 5 L 60 L A 52. * * * * * * * Trimethylchloro-silane 3 UN1298 II 3, 8 A3, A7, B77, IB2, N34, T7, TP2, TP13 None 202 243 1 L 5 L E 40. * * * * * * * Vinylpyridines, stabilized 6.1 UN3073 II 6.1, 3, 8 IB1, T7, TP2, TP13 153 202 243 1 L 30 L B 21, 40, 52. * * * * * * * 6. In Appendix B to § 172.101, the List of Marine Pollutants, the entry “Copper chloride” is amended by adding the designation “PP” in Column
(1)and the entries “Alcohol C-13—C-15 poly (1-6) ethoxylate” and “1,2-Dichlorobenzene” are removed. 7. In § 172.102, paragraph (c)(1), Special Provisions 15, 47, 77, 146, 147, and 166 are revised; new Special Provision 175 is added; Special Provision 101 is removed; and in paragraph (c)(2), new Special Provision A105 is added. The revisions and additions read as follows: § 172.102 Special provisions.
(c)* * *
(1)* * * Code/Special Provisions 15 This entry applies to “Chemical kits” and “First aid kits” containing one or more compatible items of hazardous materials in boxes, cases, etc. that, for example, are used for medical, analytical, diagnostic, testing, or repair purposes. For transportation by aircraft, materials forbidden for transportation by passenger aircraft or cargo aircraft may not be included in the kits. Chemical kits and first aid kits are excepted from the specification packaging requirements of this subchapter when packaged in combination packagings. Chemical kits and first aid kits are also excepted from the labeling and placarding requirements of this subchapter, except when offered for transportation or transported by air. Chemical and first aid kits may be transported in accordance with the consumer commodity and ORM exceptions in § 173.156, provided they meet all required conditions. Kits that are carried on board transport vehicles for first aid or operating purposes are not subject to the requirements of this subchapter. 47 Mixtures of solids that are not subject to this subchapter and flammable liquids may be transported under this entry without first applying the classification criteria of Division 4.1, provided there is no free liquid visible at the time the material is loaded or at the time the packaging or transport unit is closed. Except when the liquids are fully absorbed in solid material contained in sealed bags, each packaging must correspond to a design type that has passed a leakproofness test at the Packing Group II level. Small inner packagings consisting of sealed packets and articles containing less than 10 mL of a Class 3 liquid in Packing Group II or III absorbed onto a solid material are not subject to this subchapter provided there is no free liquid in the packet or article. 77 Mixtures containing not more than 23.5% oxygen by volume may be transported under this entry when no other oxidizing gases are present. A Division 5.1 subsidiary risk label is not required if this special provision applies. 146 This description may be used for a material that poses a hazard to the environment but does not meet the definition for a hazardous waste or a hazardous substance, as defined in § 171.8 of this subchapter, or any hazard class, as defined in part 173 of this subchapter, if it is designated as environmentally hazardous by another Competent Authority. This provision may be used for both domestic and international shipments. 147 This entry applies to non-sensitized emulsions, suspensions, and gels consisting primarily of a mixture of ammonium nitrate and fuel, intended to produce a Type E blasting explosive only after further processing prior to use. The mixture for emulsions typically has the following composition: 60-85% ammonium nitrate; 5-30% water; 2-8% fuel; 0.5-4% emulsifier or thickening agent; 0-10% soluble flame suppressants; and trace additives. Other inorganic nitrate salts may replace part of the ammonium nitrate. The mixture for suspensions and gels typically has the following composition: 60-85% ammonium nitrate; 0-5% sodium or potassium perchlorate; 0-17% hexamine nitrate or monomethylamine nitrate; 5-30% water; 2-15% fuel; 0.5-4% thickening agent; 0-10% soluble flame suppressants; and trace additives. Other inorganic nitrate salts may replace part of the ammonium nitrate. These substances must satisfactorily pass Test Series 8 of the UN Manual of Tests and Criteria, Part I, Section 18 (IBR, see § 171.7 of this subchapter), and may not be classified and transported unless approved by the Associate Administrator. 166 When transported in non-friable tablet form, calcium hypochlorite, dry, may be transported as a Packing Group III material. 175 This substance must be stabilized when in concentrations of not more than 99%.
(2)* * * Code/Special Provisions A105 The total net quantity of dangerous goods contained in one package, excluding magnetic material, must not exceed the following: a. 1 kg (2.2 pounds) in the case of solids; b. 0.5 L (0.1 gallons) in the case of liquids; c. 0.5 kg (1.1 pounds) in the case of Division 2.2 gases; or d. any combination thereof. 8. In § 172.202, paragraphs
(a)and
(b)are revised to read as follows: § 172.202 Description of hazardous material shipping papers.
(a)The shipping description of a hazardous material on the shipping paper must include:
(1)The identification number prescribed for the material as shown in Column
(4)of the § 172.101 table;
(2)The proper shipping name prescribed for the material in Column
(2)of the § 172.101 table;
(3)The hazard class or division number prescribed for the material, as shown in Column
(3)of the § 172.101 table. Except for combustible liquids, the subsidiary hazard class(es) or subsidiary division number(s) must be entered in parentheses immediately following the primary hazard class or division number. In addition—
(i)The words “Class” or “Division” may be included preceding the primary and subsidiary hazard class or division numbers.
(ii)The hazard class need not be included for the entry “Combustible liquid, n.o.s.”
(iii)For domestic shipments, primary and subsidiary hazard class or division names may be entered following the numerical hazard class or division, or following the basic description.
(4)The packing group in Roman numerals, as designated for the hazardous material in Column
(5)of the § 172.101 table. Class 1 (explosives) materials, self-reactive substances, organic peroxides and entries that are not assigned a packing group are excepted from this requirement. The packing group may be preceded by the letters “PG” (for example, “PG II”); and
(5)Except for transportation by aircraft, the total quantity of hazardous materials covered by the description must be indicated (by mass or volume, or by activity for Class 7 materials) and must include an indication of the applicable unit of measurement. For example, “200 kg” or “50 L.” The following provisions also apply:
(i)For Class 1 materials, the quantity must be the net explosive mass. For an explosive that is an article, such as Cartridges, small arms, the net explosive mass may be expressed in terms of the net mass of either the article or the explosive materials contained in the article.
(ii)For hazardous materials in salvage packaging, an estimate of the total quantity is acceptable.
(iii)The following are excepted from the requirements of paragraph (a)(5) of this section:
(A)Bulk packages, provided some indication of the total quantity is shown, for example, “1 cargo tank” or “2 IBCs.”
(B)Cylinders, provided some indication of the total quantity is shown, for example, “10 cylinders.”
(C)Packages containing only residue.
(6)For transportation by aircraft, the total net mass per package, must be shown unless a gross mass is indicated in Columns
(9A)or
(9B)of the § 172.101 table in which case the total gross mass per package must be shown; or, for Class 7 materials, the quantity of radioactive material must be shown by activity. The following provisions also apply:
(i)For empty uncleaned packaging, only the number and type of packaging must be shown;
(ii)For chemical kits and first aid kits, the total net mass of hazardous materials must be shown. Where the kits contain solids and/or liquids, the net mass of liquids within the kits is to be calculated on a 1 to 1 basis, i.e., 1 L equals 1 kg;
(iii)For dangerous goods in machinery or apparatus, the individual total quantities or an estimate of the individual total quantities of dangerous goods in solid, liquid or gaseous state, contained in the article must be shown;
(iv)For dangerous goods transported in a salvage packaging, an estimate of the quantity of dangerous goods per package must be shown;
(v)For cylinders, total quantity may be indicated by the number of cylinders, for example, “10 cylinders;”
(vi)For items where “No Limit” is shown in Column
(9A)or
(9B)of the § 172.101 table, the quantity shown should be the net mass or volume of the material, except for UN2800, UN3072, and UN3166 where the quantity should be the gross mass of the article; and
(7)The number and type of packages must be indicated. The type of packages must be indicated by description of the package (for example, “12 drums”). Indication of the packaging specification number (“1H1”) may be included in the description of the package (for example, “12 1H1 drums” or “12 drums (UN 1A1)”). Abbreviations may be used for indicating packaging types (for example, “cyl.” for “cylinder”) provided the abbreviations are commonly accepted and recognizable.
(b)Except as provided in this subpart, the basic description specified in paragraphs (a)(1), (2),
(3)and
(4)of this section must be shown in sequence with no additional information interspersed. For example, “UN2744, Cyclobutyl chloroformate, 6.1, (8, 3), PG II.” 9. In § 172.312, paragraphs
(a)introductory text, and (a)(2) introductory text are revised and a new paragraph (c)(7) is added to read as follows: § 172.312 Liquid hazardous materials in non-bulk packaging.
(a)Except as provided in this section, each non-bulk combination package having inner packagings containing liquid hazardous materials, single packaging fitted with vents, or open cryogenic receptacle intended for the transport of refrigerated liquefied gases must be:
(1)* * *
(2)Legibly marked with package orientation markings that are similar to the illustration shown in this paragraph, on two opposite vertical sides of the package with the arrows pointing in the correct upright direction. The arrows must be either black or red on white or other suitable contrasting background and commensurate with the size of the package. Depicting a rectangular border around the arrows is optional.
(c)* * *
(7)Class 7 radioactive material in Type A, IP-2, IP-3, Type B(U), or Type B(M) packages. 10. In § 172.407, paragraph (d)(2)(i) is amended by removing “; and” at the end of the paragraph and adding a period in its place, and paragraph (d)(2)(iii) is added to read as follows: § 172.407 Label specifications.
(d)* * *
(2)* * *
(iii)White may be used for the symbol for the ORGANIC PEROXIDE label. 11. Section 172.427 is revised to read as follows: § 172.427 ORGANIC PEROXIDE label.
(a)Except for size and color, the ORGANIC PEROXIDE label must be as follows: ER29DE06.000
(b)In addition to complying with § 172.407, the background on the ORGANIC PEROXIDE label must be red in the top half and yellow in the lower half. 12. Section 172.552 is revised to read as follows: § 172.552 ORGANIC PEROXIDE placard.
(a)Except for size and color, the ORGANIC PEROXIDE placard must be as follows: Er29de06.001
(b)In addition to complying with § 172.519, the background on the ORGANIC PEROXIDE placard must be red in the top half and yellow in the lower half. The text, division number and inner border must be black; the symbol may be either black or white. PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS 13. The authority citation for part 173 continues to read as follows: Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53. 14. Section 173.9 is revised to read as follows: § 173.9 Transport vehicles or freight containers containing lading which has been fumigated.
(a)For the purpose of this section, not including 49 CFR part 387, a rail car, freight container, truck body, or trailer in which the lading has been fumigated with any material, or is undergoing fumigation, is a package containing a hazardous material.
(b)No person may offer for transportation or transport a rail car, freight container, truck body, or trailer in which the lading has been fumigated or treated with any material, or is undergoing fumigation, unless the FUMIGANT marking specified in paragraph
(e)of this section is prominently displayed so that it can be seen by any person attempting to enter the interior of the transport vehicle or freight container. For domestic transportation, a hazard warning label authorized by EPA under 40 CFR part 156 may be used as an alternative to the FUMIGANT marking.
(c)No person may affix or display on a rail car, freight container, truck body, or trailer the FUMIGANT marking specified in paragraph
(e)of this section, unless the lading has been fumigated or is undergoing fumigation.
(d)The FUMIGANT marking required by paragraph
(b)of this section must remain on the rail car, freight container, truck body, or trailer until the rail car, freight container, truck body, or trailer has been completely ventilated either by opening the doors of the unit or by mechanical ventilation to ensure no harmful concentration of gas remains after fumigation has been completed.
(e)*FUMIGANT marking.*
(1)The FUMIGANT marking must consist of red or black letters on a white background that is at least 30 cm (11.8 inches) wide and at least 25 cm (9.8 inches) high. Except for size and color, the FUMIGANT marking must be as follows: ER29DE06.002
(2)The “*” shall be replaced with the technical name of the fumigant.
(f)A closed cargo transport unit that has been fumigated is not subject to any other provisions of this subchapter if it—
(1)Has been completely ventilated either by opening the doors of the unit or by mechanical ventilation after fumigation, and
(2)Displays the FUMIGANT marking, including the date of ventilation.
(g)For international shipments, transport documents should indicate the date of fumigation, type and amount of fumigant used, and instructions for disposal of any residual fumigant, including fumigation devices.
(h)Any person subject to the requirements of this section, solely due to the fumigated lading, must be informed of the requirements of this section and the safety precautions necessary to protect themselves and others in the event of an incident or accident involving the fumigated lading.
(i)Any person who offers for transportation or transports a rail car, freight container, truck body or trailer that is subject to this subchapter solely because of the hazardous materials designation specified in paragraph
(a)of this section is not subject to any requirements of this subchapter other than those contained in this section. § 173.35 [Amended] 15. In § 173.35, in paragraph (k), the wording “60.5 °C (141 °F)” is removed and the wording “60 °C (140 °F)” is added in its place. 16. In § 173.115, paragraphs (b)(1) and (k)(5) are revised to read as follows: § 173.115 Class 2, Divisions 2.1, 2.2, and 2.3—Definitions.
(b)* * *
(1)Exerts in the packaging an absolute pressure of 280 kPa (40.6 psia) or greater at 20 °C (68 °F ), or is a cryogenic liquid, and
(k)* * *
(5)When the contents are classified as Division 6.1, PG III or Class 8, PG II or III, the aerosol must be assigned a subsidiary hazard of Division 6.1 or Class 8, as appropriate. § 173.120 [Amended] 17. In § 173.120, in paragraphs
(a)introductory text, (a)(2) and (b)(1), the wording “60.5 °C (141 °F )” is removed and the wording “60 °C (140 °F )” is added each place it appears. § 173.121 [Amended] 18. In § 173.121, in the paragraph
(a)table, in Column (2), for the entry Packing group “III”, the wording “≥ 23 °C, ≤ 60.5 °C (≥ 73 °F, ≤ 141 °F)” is removed and the wording “≥23 °C, ≤ 60 °C (≥ 73 °F, ≤ 140 °F)” is added in its place. 19. In § 173.124, a new paragraph (a)(2)(i)(D) *(3)* is added to read as follows: § 173.124 Class 4, Divisions 4.1, 4.2 and 4.3—Definitions.
(a)* * *
(2)* * *
(i)* * *
(D)* * * *(3)* It is an oxidizing substance in Division 5.1 containing less than 5.0% combustible organic substances; or 20. In § 173.133, in paragraph (a)(1), the table is revised to read as follows: § 173.133 Assignment of packing group and hazard zones for Division 6.1 materials.
(a)* * *
(1)* * * Packing group Oral toxicity LD <sup>50</sup> (mg/kg) Dermal toxicity LD <sup>50</sup> (mg/kg) Inhalation toxicity by dusts and mists LC <sup>50</sup> (mg/L) I ≤5.0 ≤50 ≤0.2 II >5.0 and ≤50 >50 and ≤200 >0.2 and ≤2.0 III >50 and ≤300 >200 and ≤1000 >2.0 and ≤4.0 21. In § 173.134, paragraph (a)(5) is revised to read as follows: § 173.134 Class 6, Division 6.2—Definitions and exceptions.
(a)* * *
(5)*Regulated medical waste or clinical waste or
(bio)medical waste* means a waste or reusable material derived from the medical treatment of an animal or human, which includes diagnosis and immunization, or from biomedical research, which includes the production and testing of biological products. Regulated medical waste or clinical waste or
(bio)medical waste containing a Category A infectious substance must be classed as an infectious substance, and assigned to UN2814 or UN2900, as appropriate. 22. In § 173.136, paragraph
(d)is removed and the last sentence in paragraph
(a)is revised to read as follows: § 173.136 Class 8—Definitions.
(a)* * * A liquid, or a solid which may become liquid during transportation, that has a severe corrosion rate on steel or aluminum based on the criteria in § 173.137(c)(2) is also a corrosive material. 23. In § 173.137, paragraph (c)(2) is revised to read as follows: § 173.137 Class 8—Assignment of packing group.
(c)* * *
(2)That do not cause full thickness destruction of intact skin tissue but exhibit a corrosion on steel or aluminum surfaces exceeding 6.25 mm (0.25 inch) a year at a test temperature of 55 °C (130 °F). The corrosion may be determined in accordance with the UN Manual of Tests and Criteria (IBR, see § 171.7 of this subchapter) or other equivalent test methods. 24. In § 173.159, paragraphs (a), (c)(1), (c)(2), (c)(4), (c)(5), (d)(1) and (e)(2) are revised to read as follows: § 173.159 Batteries, wet.
(a)Electric storage batteries, containing electrolyte acid or alkaline corrosive battery fluid, must be completely protected so that short circuits will be prevented (e.g., by the use of non-conductive caps that entirely cover the terminals); they may not be packed with other materials except as provided in paragraphs
(g)and
(h)of this section and in §§ 173.220 and 173.222. For transportation by aircraft, the packaging for wet cell batteries must incorporate an acid- or alkali-proof liner, or include a supplementary packaging with sufficient strength and be adequately sealed to prevent leakage of electrolyte fluid in the event of spillage.
(c)* * *
(1)Electric storage batteries protected against short circuits (e.g., by the use of non-conductive caps that entirely cover the terminals) and firmly secured to skids or pallets capable of withstanding the shocks normally incident to transportation, are authorized for transportation by rail, highway, or water. The height of the completed unit must not exceed 1 1/2 times the width of the skid or pallet. The unit must be capable of withstanding, without damage, a superimposed weight equal to two times the weight of the unit or, if the weight of the unit exceeds 907 kg (2000 pounds), a superimposed weight of 1814 kg (4000 pounds). Battery terminals must not be relied upon to support any part of the superimposed weight.
(2)Electric storage batteries weighing 225 kg (500 pounds) or more, consisting of carriers' equipment, may be shipped by rail when mounted on suitable skids and protected against short circuits (e.g., by the use of non-conductive caps that entirely cover the terminals). Such shipments may not be offered in interchange service.
(4)Not more than four batteries not over 7 kg (15 pounds) each, packed in strong outer fiberboard or wooden boxes. Batteries must be securely cushioned and packed to prevent short circuits (e.g., by the use of non-conductive caps that entirely cover the terminals). The maximum authorized gross weight is 30 kg (65 pounds).
(5)Not more than five batteries not over 4.5 kg (10 pounds) each, packed in strong outer fiberboard or wooden boxes. Batteries must be securely cushioned and packed to prevent short circuits (e.g., by the use of non-conductive caps that entirely cover the terminals). The maximum authorized gross weight is 30 kg (65 pounds).
(d)* * *
(1)The battery must be protected against short circuits (e.g., by the use of non-conductive caps that entirely cover the terminals) and securely packaged;
(e)* * *
(2)The batteries must be loaded or braced so as to prevent damage and short circuits in transit (e.g., by the use of non-conductive caps that entirely cover the terminals); 25. In § 173.166, paragraph (d)(1) is revised to read as follows: § 173.166 Air bag inflators, air bag modules and seat-belt pretensioners.
(d)* * *
(1)An air bag module or seat-belt pretensioner that has been approved by the Associate Administrator and is installed in a motor vehicle, aircraft, boat or other transport conveyance or its completed components, such as steering columns or door panels, is not subject to the requirements of this subchapter. 26. Section 173.187 is revised to read as follows: § 173.187 Pyrophoric solids, metals or alloys, n.o.s. Packagings for pyrophoric solids, metals, or alloys, n.o.s. must conform to the requirements of part 178 of this subchapter at the packing group performance level specified in the § 172.101 Table. These materials must be packaged as follows:
(a)In steel boxes
(4A)and contain not more than 15 kg (33 pounds) each.
(b)In wooden boxes (4C1, 4C2, 4D, or 4F) with inner metal receptacles which have a positive (not friction) means of closure and contain not more than 15 kg (33 pounds) each.
(c)In fiberboard boxes
(4G)with inner metal receptacles which have a positive (not friction) means of closure and contain not more than 7.5 kg (17 pounds) each.
(d)In steel drums (1A1 or 1A2) with a gross mass not exceeding 150 kg (331 pounds) per drum.
(e)In plywood drums
(1D)with inner metal receptacles which have a positive (not friction) means of closure and contain not more than 15 kg (33 pounds) each.
(f)In fiber drums
(1G)with inner metal receptacles which have a positive (not friction) means of closure and contain not more than 15 kg (33 pounds) each.
(g)In specification cylinders, as prescribed for any compressed gas, except for Specifications 8 and 3HT. 27. In § 173.197, paragraph (a), the first sentence in paragraph (b), and the first sentence in paragraph (e)(2) are revised to read as follows: § 173.197 Regulated medical waste.
(a)*General provisions.* Non-bulk packagings, Large Packagings, and non-specification bulk outer packagings used for the transportation of regulated medical waste or clinical waste or
(bio)medical waste must be rigid containers meeting the provisions of subpart B of this part.
(b)* * * Except as provided in § 173.134(c) of this subpart, non-bulk packagings for regulated medical waste or clinical waste or
(bio)medical waste must be UN standard packagings conforming to the requirements of Part 178 of this subchapter at the Packing Group II performance level. * * *
(e)* * *
(2)* * *Liquid regulated medical waste or clinical waste or
(bio)medical waste transported in a Large Packaging, Cart, or BOP must be packaged in a rigid inner packaging conforming to the provisions of subpart B of this part. 28. In § 173.216, paragraph (c)(3) is revised and paragraph (c)(4) is removed to read as follows: § 173.216 Asbestos, blue, brown or white.
(c)* * *
(3)Bags or other non-rigid packagings which are dust and sift proof must be placed in rigid outer packagings or closed freight containers. 29. In § 173.220, paragraphs (b)(2)(ii)(B)( *3* ),
(c)and
(d)are revised to read as follows: § 173.220 Internal combustion engines, self-propelled vehicles, mechanical equipment containing internal combustion engines, and battery powered vehicles or equipment.
(b)* * *
(2)* * *
(ii)* * *
(B)* * * ( *3* ) In no part of the closed system shall the pressure exceed 5% of the maximum allowable working pressure of the system or 290 psig (2000 kPa), whichever is less; and
(c)*Battery powered or installed.* Batteries must be securely installed, and wet batteries fastened in an upright position. Batteries must be protected against short circuits (e.g., by the use of non-conductive caps that entirely cover the terminals) and leakage or removed and packaged separately under § 173.159. Battery powered vehicles, machinery or equipment including battery powered wheelchairs and mobility aids are excepted from the requirements of this subchapter when transported by rail, highway or vessel.
(d)*Lithium batteries.* Except as provided in § 172.102, Special Provision A102, of this subchapter, vehicles and machinery powered by primary lithium batteries that are transported with these batteries installed are forbidden aboard passenger-carrying aircraft. Lithium batteries contained in vehicles or engines must be securely fastened in the battery holder of the vehicle or engine, and be protected in such a manner as to prevent damage and short circuits (e.g., by the use of non-conductive caps that entirely cover the terminals). Lithium batteries must be of a type that have successfully passed each test in the UN Manual of Tests and Criteria as specified in § 173.185, unless approved by the Associate Administrator. Equipment, other than vehicles or engines, containing lithium batteries must be transported in accordance with § 173.185. 30. In § 173.222, the section heading, paragraphs (a), (b)(1), (b)(2),
(c)introductory text and
(d)are revised to read as follows: § 173.222 Dangerous goods in machinery or apparatus.
(a)If the machinery or apparatus contains more than one hazardous material, the materials must not be capable of reacting dangerously together.
(b)* * *
(1)Damage to the receptacles containing the hazardous materials during transport is unlikely. However, in the event of damage to the receptacles containing the hazardous materials, no leakage of the hazardous materials from the machinery or apparatus is possible. A leakproof liner may be used to satisfy this requirement.
(2)Receptacles containing hazardous materials must be secured and cushioned so as to prevent their breakage or leakage and so as to control their movement within the machinery or apparatus during normal conditions of transportation. Cushioning material must not react dangerously with the content of the receptacles. Any leakage of the contents must not substantially impair the protective properties of the cushioning material.
(c)The total net quantity of hazardous materials contained in one item of machinery or apparatus must not exceed the following:
(d)Except for transportation by aircraft, when a package contains hazardous materials in two or more of the categories listed in paragraphs (c)(1) through (c)(3) of this section the total quantity required by § 172.202(c) of this subchapter to be entered on the shipping paper must be either the aggregate quantity, or the estimated quantity, of all hazardous materials, expressed as net mass. 31. In § 173.224, in paragraph (b)(7), in the Self-Reactive Materials Table, a new entry is added in appropriate alphabetical order to read as follows: § 173.224 Packaging and control and emergency temperatures for self-reactive materials.
(b)* * *
(7)* * * Self-Reactive Materials Table Self-reactive substance Identification No. Concentration— (%) Packing method Control temperature—(°C) Emergency temperature Notes
(7)Acetone-pyrogallol copolymer 2-diazo-1-naphthol-5-sulphonate 3228 100 OP8 * * * * * * * 32. A new section § 173.230 is added in subpart E to read as follows: § 173.230 Fuel cell cartridges containing flammable liquids.
(a)A fuel cell cartridge is a container that stores fuel for controlled discharge into fuel cell powered equipment through a valve. The cartridge must be designed and constructed to prevent the fuel from leaking during normal conditions of transportation and be free of electric charge generating components.
(b)Fuel cell cartridges containing flammable liquids, including methanol or methanol/water solutions, must conform to the following:
(1)The fuel cell cartridge design type without its packaging must be shown to pass an internal pressure test at a pressure of 15 psig (100 kPa);
(2)Fuel cell cartridges must be packaged in rigid outer packagings which meet the requirements of part 178 at the Packing Group II performance level and conform to the general packaging requirements of subpart B of part 173.
(c)Fuel cell cartridges packed in or with equipment are excepted from the packaging requirements in paragraph (b)(2) of this section if the cartridges are packed in a strong outer packaging conforming to the requirements of §§ 173.24 and 173.24a. For cartridges installed in equipment, the equipment may be considered the outer packaging if it provides an equivalent level of protection. The packaging need not conform to performance requirements of part 178 of this subchapter. The cartridges must be protected against damage that may be caused by the movement or placement of the equipment and the cartridges within the outer packaging. 33. In § 173.301, paragraph
(o)is revised to read as follows: § 173.301 General requirements for shipment of compressed gases and other hazardous materials in cylinders, UN pressure receptacles and spherical pressure vessels.
(o)*Cylinders made of aluminum alloy 6351-T6.* A DOT 3AL cylinder manufactured of aluminum alloy 6351-T6 may not be filled and offered for transportation or transported with pyrophoric gases. The use of UN cylinders manufactured of aluminum alloy 6351-T6 is prohibited. 34. In § 173.306, paragraph
(i)is revised and a new paragraph
(j)is added to read as follows: § 173.306 Limited quantities of compressed gases.
(i)*Aerosols and receptacles small, containing gas with a capacity of less than 50 mL.* Aerosols, as defined in § 171.8 of this subchapter, and receptacles small, containing gas, with a capacity not exceeding 50 mL (1.7 oz.) and with a pressure not exceeding 970 kPa (141 psig) at 55 °C (131 °F), containing no hazardous materials other than a Division 2.2 gas, are not subject to the requirements of this subchapter. The pressure limit may be increased to 2000 kPa (290 psig) at 55 °C (131 °F) provided the aerosols are transported in outer packages that conform to the packaging requirements of Subpart B of this part. This paragraph
(i)does not apply to a self-defense spray (e.g., pepper spray).
(j)For additional exceptions, also see § 173.307. Appendix H to Part 173 [Amended] 35. In Appendix H to Part 173, under heading 3. Apparatus, introductory text, the first occurrence of the wording “UN Manual of Test and Criteria,” is removed and the wording “UN Manual of Test and Criteria (IBR, see § 171.7 of this subchapter),” is added in its place and under heading 5. Procedure, in paragraph (h), the wording “60.5 °C (141 °F)” is removed and the wording “60 °C (140 °F)” is added each place it appears. PART 175—CARRIAGE BY AIRCRAFT 36. The authority citation for part 175 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 44701; 49 CFR 1.53. 37. In § 175.10, in paragraph (a)(2), the first sentence is revised to read as follows: § 175.10 Exceptions for passengers, crewmembers, and air operators.
(a)* * *
(2)One packet of safety matches or a lighter intended for use by an individual when carried on one's person or in carry-on baggage only. * * * 38. In § 175.78, paragraph (c)(4) is revised to read as follows: § 175.78 Stowage compatibility of cargo.
(c)* * *
(4)Note 1. “Note 1” at the intersection of a row and column means the following:
(i)Only Division 1.4, Compatibility Group S, explosives are permitted to be transported aboard a passenger aircraft. Only certain Division 1.3, Compatibility Groups C and G, and Division 1.4, Compatibility Groups B, C, D, E, G and S, explosives may be transported aboard a cargo aircraft.
(ii)Division 1.4 explosives in Compatibility Group S may be stowed with Division 1.3 and 1.4 explosives in compatibility groups as permitted aboard aircraft under paragraph (c)(4)(i) above.
(iii)Except as otherwise provided in this Note, explosives of different compatibility groups may be stowed together whether or not they belong to the same division.
(iv)Division 1.4B and Division 1.3 explosives may not be stowed together. Division 1.4B explosives must be loaded into separate unit load devices and, when stowed aboard the aircraft, the unit load devices must be separated by other cargo with a minimum separation of 2 m (6.5 feet). When not loaded in unit load devices, Division 1.4B and Division 1.3 explosives must be loaded into different, non-adjacent loading positions and separated by other cargo with a minimum separation of 2 m (6.5 feet). PART 176—CARRIAGE BY VESSEL 39. The authority citation for part 176 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53. § 176.76 [Amended] 40. In § 176.76, in paragraph (f)(2), the wording “141 °F” is removed and the wording “60 °C (140 °F)” is added in its place. 41. In § 176.83, paragraph (a)(4) is revised to read as follows: § 176.83 Segregation.
(a)* * *
(4)Segregation is not required:
(i)Between hazardous materials of different classes which comprise the same substance but vary only in their water content (for example, sodium sulfide in Division 4.2 or Class 8) or quantity for Class 7 materials; or
(ii)Between hazardous materials of different classes which comprise a group of substances that do not react dangerously with each other. The following materials are grouped by compatibility:
(A)Hydrogen peroxide, aqueous solutions *with not less than 8 percent but less than 20 percent hydrogen peroxide (stabilized as necessary)* ; Hydrogen peroxide, aqueous solutions *with not less than 20 percent but not more than 40 percent hydrogen peroxide;* Hydrogen peroxide, aqueous solutions *with more than 40 percent but not more than 60 percent hydrogen peroxide;* Hydrogen peroxide and peroxyacetic acid mixtures, stabilized *with acids, water and not more than 5 percent peroxyacetic acid;* Organic peroxide type D, liquid; Organic peroxide type E, liquid; Organic peroxide type F, liquid; and
(B)Dichlorosilane, Silicon tetrachloride, and Trichlorosilane. 42. In § 176.84, in paragraph (b), in the Table of provisions, Codes “22,” “23,” “26,” “27,” “52,” “53” and “109” are revised, a new Code “144” is added in appropriate numerical order, and following the table, a new note “2” is added to read as follows: § 176.84 Other requirements for stowage and segregation for cargo vessels and passenger vessels.
(b)* * * Code Provisions * * * * * 22 Segregation same as for flammable liquids if flash point is below 60 °C (140 °F). 23 Segregation same as for flammable liquids if flash point is between 23 °C (73 °F) and 60 °C (140 °F). * * * * * 26 Stow “away from” acids. 2 27 Stow “away from” alkaline compounds. 2 * * * * * 52 Stow “separated from” acids. 1, 2 53 Stow “separated from” alkaline compounds. 2 * * * * * 109 Label as a flammable liquid if flash point is 60 °C (140 °F) or below. * * * * * 144 When stowed under deck, mechanical ventilation shall be in accordance with SOLAS, Chapter II-2/Regulation 19 (IBR, see § 171.7 of this subchapter) for flammable liquids with flashpoint below 23 °C (73 °F). * * * * * * * * * * 2 Class 8 materials in PG II or III that otherwise are required to be segregated from one another may be transported in the same cargo transport unit, whether in the same packaging or not, provided the substances do not react dangerously with each other to cause combustion and/or evolution of considerable heat, or of flammable, toxic or asphyxiant gases, or the formation of corrosive or unstable substances; and the package does not contain more than 30 L (7.8 gallons) for liquids or 30 kg (66 lbs.) for solids. PART 178—SPECIFICATIONS FOR PACKAGINGS 43. The authority citation for part 178 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53. 44. In § 178.274, paragraph (j)(6) is revised to read as follows: § 178.274 Specifications for UN portable tanks.
(j)* * *
(6)Effective January 1, 2008, each new UN portable tank design type meeting the definition of “container” in the Convention for Safe Containers
(CSC)(see 49 CFR 450.3(a)(2)) must be subjected to the dynamic longitudinal impact test prescribed in Part IV, Section 40 of the UN Manual of Tests and Criteria (see IBR, § 171.7 of this subchapter). A UN portable tank design type impact-tested prior to January 1, 2008, in accordance with the requirements of this section in effect on October 1, 2005, need not be retested. UN portable tanks used for the dedicated transportation of “Helium, refrigerated liquid,” UN1963, and “Hydrogen, refrigerated liquid,” UN1966, that are marked “NOT FOR RAIL TRANSPORT” in letters of a minimum height of 10 cm (4 inches) on at least two sides of the portable tank are excepted from the dynamic longitudinal impact test. § 178.602 [Amended] 45. In § 178.602, in paragraph (b), the second sentence is amended by adding the wording “containing solids” after the word “Bags.” 46. In § 178.810, paragraph
(b)is revised to read as follows: § 178.810 Drop test.
(b)*Special preparation for the drop test.*
(1)Metal, rigid plastic, and composite IBCs intended to contain solids must be filled to not less than 95 percent of their maximum capacity, or if intended to contain liquids, to not less than 98 percent of their maximum capacity. Pressure relief devices must be removed and their apertures plugged or rendered inoperative.
(2)Fiberboard and wooden IBCs must be filled with a solid material to not less than 95 percent of their maximum capacity; the contents must be evenly distributed.
(3)Flexible IBCs must be filled to the maximum permissible gross mass; the contents must be evenly distributed.
(4)Rigid plastic IBCs and composite IBCs with plastic inner receptacles must be conditioned for testing by reducing the temperature of the packaging and its contents to −18 °C (0 °F) or lower. Test liquids must be kept in the liquid state, if necessary, by the addition of anti-freeze. Water/anti-freeze solutions with a minimum specific gravity of 0.95 for testing at −18 °C (0 °F) or lower are considered acceptable test liquids, and may be considered equivalent to water for test purposes. IBCs conditioned in this way are not required to be conditioned in accordance with § 178.802. PART 180—CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS 47. The authority citation for part 180 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53. 48. In § 180.213, paragraph
(d)is revised to read as follows: § 180.213 Requalification markings.
(d)*Requalification markings.* Each cylinder successfully passing requalification must be marked with the RIN set in a square pattern, between the month and year of the requalification date. The first character of the RIN must appear in the upper left corner of the square pattern; the second in the upper right; the third in the lower right; and the fourth in the lower left. Example: A cylinder requalified in September 2006, and approved by a person who has been issued RIN “A123”, would be marked plainly and permanently into the metal of the cylinder in accordance with location requirements of the cylinder specification or on a metal plate permanently secured to the cylinder in accordance with paragraph
(b)of this section. An example of the markings prescribed in this paragraph
(d)is as follows: ER29DE06.012 Where: “9” is the month of requalification “A123” is the RIN “06” is the year of requalification, and “X” represents the symbols described in paragraphs (f)(2) through (f)(8) of this section.
(1)Upon written request, variation from the marking requirement may be approved by the Associate Administrator.
(2)Exception. A cylinder subject to the requirements of § 173.301(l) of this subchapter may not be marked with a RIN. 49. In § 180.352, paragraphs
(b)introductory text, (b)(1) and
(g)are revised to read as follows: § 180.352 Requirements for retest and inspection of IBCs.
(b)*Test and inspections for metal, rigid plastic, and composite IBCs.* Each IBC is subject to the following test and inspections:
(1)Each IBC intended to contain solids that are loaded or discharged under pressure or intended to contain liquids must be tested in accordance with the leakproofness test prescribed in § 178.813 of this subchapter prior to its first use in transportation and every 2.5 years thereafter, starting from the date of manufacture or the date of a repair conforming to paragraph (d)(1) of this section. For this test, the IBC is not required to have its closures fitted.
(g)*Record retention.*
(1)The owner or lessee of the IBC must keep records of periodic retests, initial and periodic inspections, and tests performed on the IBC if it has been repaired or remanufactured.
(2)Records must include design types and packaging specifications, test and inspection dates, name and address of test and inspection facilities, names or name of any persons conducting test or inspections, and test or inspection specifics and results.
(3)Records must be kept for each packaging at each location where periodic tests are conducted, until such tests are successfully performed again or for at least 2.5 years from the date of the last test. These records must be made available for inspection by a representative of the Department on request. Issued in Washington, DC on December 1, 2006 under authority delegated in 49 CFR part 1. Thomas J. Barrett, Administrator. [FR Doc. 06-9849 Filed 12-28-06; 8:45 am]
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  • Pub. L. 102-40
  • Pub. L. 108-375
  • 20 CFR 1
  • 20 CFR 30
  • 64 Stat. 1263
  • 60 Stat. 1095
  • 64 Stat. 1271
  • 42 CFR 83
  • 42 CFR 81
  • 5 CFR 581
  • 29 CFR 22
  • 42 CFR 81.30
  • 42 CFR 82
  • 29 CFR 18
  • Pub. L. 91-575
  • 83 Stat. 1509
  • 18 CFR 801
  • 49 USC 5101-5128
  • 49 CFR 171
  • 49 CFR 172
  • 49 CFR 173
  • 49 CFR 175
  • 49 CFR 176
  • 49 CFR 178
  • 49 CFR 180
  • 49 CFR 1.45
  • Pub. L. 101-410
  • Pub. L. 104-134
  • 49 CFR 1.53
  • 49 CFR 387
  • 40 CFR 156
  • 49 CFR 450.3(a)(2)
  • 49 CFR 1
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