ITEM 1:
109th CONGRESS
2d Session
To amend the Energy Employees Occupational Illness Compensation Program Act of 2000 to clarify the roles and responsibilities of the agencies and actors responsible for the administration of such compensation program, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
July 19, 2006
Ms. JACKSON-LEE of Texas (for herself, Mr. UDALL of Colorado, Mr. STRICKLAND, and Mr. UDALL of New Mexico) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
----------------------------------------------------------------------------------------------------
A BILL
To amend the Energy Employees Occupational Illness Compensation Program Act of 2000 to clarify the roles and responsibilities of the agencies and actors responsible for the administration of such compensation program, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES; EFFECTIVE DATE.
(a) Short Title- This Act may be cited as the `Energy Employees Occupational
Illness Compensation Program Improvement Act of 2006'.
(b) References- Except as otherwise expressly provided, whenever in this Act
an amendment or repeal is expressed in terms of an amendment to, or
repeal of, a section or other provision, the reference shall be considered to
be made to a section or other provision of the Energy Employees
Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 7384
et seq.).
(c) Effective Date- Except as otherwise expressly provided, this Act and the
amendments made by this Act shall take effect 30 days after the date of
the enactment of this Act.
SEC. 2. FINDINGS.
The Congress finds as follows:
(1) The Energy Employees Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 7384 et seq.) (referred to in this Act as the `EEOICPA') was intended to--
(A) ensure the payment of `timely, uniform, adequate compensation' to
covered employees (and, where applicable, survivors of such
employees) for occupational illnesses incurred by such employees in
the performance of duty for the Department of Energy and certain of
its contractors, subcontractors, and vendors; and
(B) provide parity for uranium miners under the Radiation Exposure
Compensation Act (42 U.S.C. 2210 note).
(2) Four Federal agencies (the Departments of Labor, Health and Human Services, Energy, and Justice), are assigned responsibilities under the EEOICPA pursuant to Executive Order 13179, `Providing Compensation to America's Nuclear Weapons Workers' (December 7, 2000; 65 Fed. Reg. 77487).
(3) The Department of Labor began accepting claims under Subtitle B of the EEOICPA on July 31, 2001
(4) The Department of Health and Human Services (HHS), through the National Institute for Occupational Safety and Health (NIOSH), performs radiation dose reconstruction for cancer claims under the EEOICPA.
(5) Atomic workers served the Nation and improved national defense by building and testing nuclear weapons, while putting their health in jeopardy from exposure to radiation, beryllium, and other toxic substances. Claims for radiation-related cancers depend on credible and complete radiation records. Because the radiation exposure of some workers was unmonitored, and in certain circumstances it is not feasible to estimate radiation dose with sufficient accuracy, Congress provided that workers may petition to be members of the Special Exposure Cohort (SEC). Members of the SEC receive an automatic presumption that their cancer is the result of occupational exposure to ionizing radiation. Twenty-two cancers are covered under this presumption. Under subtitle B of the EEOICPA, covered claimants receive a $150,000 lump sum benefit plus prospective medical costs.
(6) Executive Order 13179 directs the Secretary of Health and Human Services to promulgate regulations for establishing membership in the Special Exposure Cohort, and to consider and issue determinations on petitions by classes of employees requesting recognition as members of the SEC.
(7) As prescribed by the EEOICPA, the Secretary of Health and Human Services may, subject to a recommendation by the Advisory Board on Radiation and Worker Health (referred to in this section as the `Advisory Board'), designate additional classes of workers as members of the Special Exposure Cohort without further legislative action, if--
(A) it is not feasible to estimate with sufficient accuracy the radiation dose
that members of the class received; and
(B) there is a reasonable likelihood that such radiation dose may have
endangered the health of the members of the class.
(8) There is a four-step administrative review process for evaluating SEC Petitions. The process is as follows:
(A) STEP ONE- The National Institute for Occupational Safety and
Health receives an SEC petition and determines whether the petition
meets the regulatory requirements for the petition to be evaluated,
and then evaluates each qualified petition to determine whether it is
feasible given the available radiation monitoring data to estimate
radiation dose with sufficient accuracy. Following such evaluation,
the National Institute for Occupational Safety and Health issues a
written recommendation to the petitioners and the Advisory Board.
(B) STEP TWO- The Advisory Board conducts an independent review of
the evaluation by and recommendation from the National Institute
for Occupational Safety and Health, and makes a recommendation
to the Secretary of Health and Human Services regarding the
petition. Subject to Advisory Board direction, a technical support
contractor may be used to assess technical issues related to the
petition, evaluation report, or recommendation.
(C) STEP THREE- Not later than 30 days after receipt of the Advisory
Board's recommendation, the Secretary of Health and Human
Services issues a final agency decision to grant or deny the petition,
and transmits such decision to Congress.
(D) STEP FOUR- Congress has 30 days to review the Secretary's
decision. If Congress does not legislatively reverse the Secretary's
decision within 30 days, it will go into effect as ordered by the
(9) In late 2005, the Office of Management and Budget issued a Passback communication to the Department of Labor that contained the following statement:
`Energy Employees Occupational Illness Compensation Program Act (EEOICPA) Part B- ESA (Department of Labor's Employment Standard's Administration) is to be commended for identifying the potential for a large expansion of EEOICPA Part B benefits through the designation of Special Exposure Cohorts (SEC). The Administration will convene a White House-led interagency work group including HHS and Energy to develop options for administrative procedures to contain growth in the cost of benefits provided by the program. Discussions are not limited to, but will involve, the following five options.
`1. Require Administration clearance of SEC determination[s];
`2. Address any imbalance in membership of President's Advisory
Board on Radiation and Worker Health;
`3. Require an expedited review by outside experts of SEC
recommendations by NIOSH;
`4. Require NIOSH to apply `conflict of interest' rules and
constraints to the Advisory Board's contractor; and
`5. Require that NIOSH demonstrate that its site profiles and other
dose reconstruction guidance are balance[d].'.
(10) Congress finds that the policies outlined in the Office of Management and Budget Passback statement referred to in paragraph (9), if implemented, will contravene Congressional intent and weaken statutory checks and balances designed to ensure scientifically credible and fair decisions regarding SEC designations. `Administration clearance' could result in the substitution of budget logic for scientific findings; addressing any `imbalance in the Advisory Board' could result in an Advisory Board tilted against SEC designations; imposing `constraints' could allow agency officials to interfere with the independence of the audit contractor supporting the Advisory Board, and; `expedited reviews by outside experts' could lead to costly, time consuming, and extralegal reviews of Advisory Board recommendations.
(11) There is no evidence that unwarranted Special Exposure Cohort petitions have been granted, or that any actions have been taken that would otherwise justify any of the five options outlined in the Office of Management and Budget Passback statement referred to in paragraph (9).
(12) Two Advisory Board members were removed by the President in 2006 without apparent cause, and currently the Advisory Board composition is not balanced, as required by EEOICPA and the Federal Advisory Committee Act.
(13) The amendments made by this Act to the Energy Employees Occupational Illness Compensation Program Act of 2000 ensure that classes of employees who apply for membership in the Special Exposure Cohort by reason of illnesses arising out of exposure to radiation while performing work in support of the Nation's nuclear weapons programs receive a fair determination of their claims.
SEC. 3. COMPENSATION PROGRAM AND COMPENSATION FUND.
Section 3612(e) (42 U.S.C. 7384e(e)) is amended--
(1) in the heading of the subsection, by striking `Not Paid From Compensation Fund';
(2) by striking `No costs incurred' and inserting `(1) IN GENERAL--No costs incurred'; and
(3) by adding at the end the following:
`(2) ADMINISTRATIVE COSTS AND ANNUAL BUDGET REQUIREMENTS OF AGENCIES-
`(A) DEPARTMENT OF LABOR-
`(i) The Secretary of the Department of Labor shall include as
part of the annual budget request for the Department any
administrative costs necessary to carry out its
responsibilities under this Act. Appropriations shall be
allocated in appropriations acts directly to the
Department of Labor to carry out its responsibilities
`(ii) To ensure the timely transfer of records and information
needed by the Department of Labor and the Department
of Health and Human Services for claims adjudication,
the Secretary of the Department of Labor may transfer
funds to the Department of Energy, if appropriations
made available to the Department of Energy under other
appropriation Acts are insufficient for the Department of
Energy to carry out its responsibilities under this Act.
`(B) NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY
AND HEALTH- The Secretary of Health and Human
Services shall include as part of the annual budget request
for the National Institute for Occupational Safety and
Health any administrative costs necessary for the National
Institute for Occupational Safety and Health to carry out its
responsibilities under this Act.Appropriations shall be
allocated in appropriations acts directly to the Department
of Health and Human Services to carry out its
responsibilities under this Act.
`(C) ADVISORY BOARD ON RADIATION AND WORKER
`(i) The Secretary of the Department of Health and Human
Services shall include as part of the annual budget
request for the Department any administrative costs and
any staff and contract support costs necessary for the
Advisory Board on Radiation and Worker Health (in this
section referred to as the `Advisory Board') to carry out
its responsibilities under this Act. Appropriations shall be
allocated in appropriations Acts directly to the
Department of Health and Human Services for the
Advisory Board to carry out its responsibilities under this
Act. Appropriations Acts shall also designate a line item
for the Advisory Board, separate from the budget for the
Department of Health and Human Services, for the
activities of the Advisory Board related to the
compensation program under this Act.
`(ii) An annual budget request for the Advisory Board
shall be prepared by the Advisory Board, in consultation
with the Designated Federal official appointed under
section 3624(c)(1)(B), and submitted to the Secretary of
the Department of Health and Human Services on a
schedule to be established by the Secretary. If the
amount requested by the Advisory Board is modified by
the Secretary, the amount requested by the Advisory
Board and any modifications shall be identified and
explained in the budget request.'.
SEC. 4. SUBCONTRACTORS OF ATOMIC WEAPONS EMPLOYERS.
Section 3621(3)(A) (42 U.S.C. 7384l(3)(A)) is amended by inserting `, or a subcontractor of an atomic weapons employer,' after `an atomic weapons employer'.
SEC. 5. EXPANSION OF LIST OF BERYLLIUM VENDORS.
Section 3622 (42 U.S.C. 7384m) is amended--
(1) by striking `Not later than December 31, 2002, the President may, in consultation with the Secretary of Energy,' and inserting `The Secretary of Energy shall, on or before December 31, 2006, and annually thereafter until December 31, 2010,'; and
(2) by striking `the President finds' and inserting `the Secretary of Energy finds'.
SEC. 6. ALLOCATION OF RESPONSIBILITIES FOR PROGRAM ADMINISTRATION.
(a) Definition- Paragraph (14) of section 3621 (42 U.S.C. 7384l) is amended by
striking `the President' each place is appears in subparagraph (C) and
inserting `the Secretary of Health and Human Services'.
(b) Exposure in the Performance of Duty- Section 3623 (42 U.S.C. 7384n) is
amended--
(1) in subsection (c)--
(A) in paragraph (1), by striking `the President' and inserting `the
Secretary of Health and Human Services';
(B) in paragraph (2), by striking `The President' and inserting `The
Secretary of Health and Human Services'; and
(C) in paragraph (3)(C), by striking `past health-related activities
(2) in subsection (d)--
(A) in paragraph (1), by striking `The President shall' through
`President may designate,' and inserting `The Secretary of Health
and Human Services shall'; and
(B) in paragraph (2), by striking `the President' and inserting `the
Secretary of Health and Human Services'.
SEC. 7. ADVISORY BOARD ON RADIATION AND WORKER HEALTH.
Section 3624 (42 U.S.C. 7384o) is amended--
(1) by amending subsection (a) to read as follows:
`(1) Not later than 90 days after the date of the enactment of the Energy
Employees Occupational Illness Compensation Program
Improvement Act of 2006, the members of the Advisory Board on
Radiation and Worker Health (referred to in this section as the
`Board'), as of the day before the date of enactment of such Act,
shall be removed from their positions on the Board, and new
members of the Board shall be appointed in accordance with
paragraph (2). Any individual who is a member of the Board on the
day before the date of enactment of such Act, and who is removed in
accordance with this paragraph, may be reappointed to the Board in
accordance with paragraph (2).
`(2) The Board shall be made up of 12 members, and the members shall
be appointed as follows:
`(A) Three members shall be appointed by the Speaker of
the House of Representatives.
`(B) Three members shall be appointed by the President of
`(C) Three members shall be appointed by the minority
leader of the House of Representatives.
`(D) Three members shall be appointed by the minority
`(3) The three members appointed by each appointing authority
described in paragraph (2) shall include one representative of the
scientific community, one worker representative, and one
representative of the medical community.
`(4) For each appointment to the Board, the appropriate appointing
authority shall--
`(A) comply with all legal requirements related to Special
Government Employees and the appointment of such
employees, as determined by the Secretary of Health
`(B) consult with organizations with expertise on worker
health issues about such appointment; and
`(C) ensure that such appointment contributes to a
balance of viewpoints and perspectives held by
`(5) The term of office of each member of the Board shall be three years.
No member shall serve more than two terms. A vacancy on the
Board shall be filled in the manner in which the original
appointment was made. Upon expiration of a term, a member of the
Board shall continue to serve until the successor to such member has
been appointed. The appointment of the replacement member shall
be made not later than 60 days after the date on which the vacancy
occurs. The Secretary of Health and Human Services shall--
`(A) prepare a schedule for vacancies and appointments, and
make such schedule available to the public in paper and
`(B) identify the appropriate appointing authority listed in
paragraph (2) who is responsible for appointing a
`(C) not later than 90 days before the end of a term of any
member of the Board, provide each appointing authority
responsible for appointing a replacement member for a
`(i) the number of vacancies and expected vacancies,
based on member resignations and the scheduled
expiration of member terms; and
`(ii) the representative category (scientific, worker, or
medical representative) of each member whose
position on the Board has been, or is scheduled
`(6) A chair for the Board shall be selected from among its members by
an annual vote of the members who are on the Board as of January 1
of each year.
`(7) The Secretary of Health and Human Services may recommend to the
appropriate Congressional appointing authority described in
paragraph (2) that a member of the Board be removed as the result
of neglect of duty, malfeasance in office, a violation of the
conditions of the waivers provided under section 208 of title 18,
United States Code, or a violation of the laws, regulations, policies,
or procedures related to the activities carried out under this Act.';
(2) in subsection (b), by striking `the President' each place it appears and inserting `the Secretary of Health and Human Services';
(3) in subsection (c)--
(A) by amending paragraph (1) to read as follows:
`(1)(A) The Secretary of Health and Human Services shall provide
administrative support to the Board, and shall assign staff, as
necessary, to facilitate the work of the Board. The Board shall
have the authority to select contractors and consultants, issue
task orders, and make budget requests (through the Secretary of
Health and Human Services) for the annual budget of the Board
`(B) The Director of the National Institute for Occupational
Safety and Health shall appoint a Designated Federal official
and an Executive Secretary for the Board. The Designated
Federal official and the Executive Secretary shall be
independent of the Federal officials responsible for
managing and implementing radiation dose reconstruction
activities and Special Exposure Cohort evaluations under
this Act. The Designated Federal official shall have the same
authorities and responsibilities as the designated officer or
employee of the Federal Government described in section 10
of the Federal Advisory Committee Act (5 U.S.C. App.).';
(B) in paragraph (2), by striking `The President' inserting `The
Secretary of Health and Human Services';
(4) in subsection (d), by striking `the President' and inserting `the Secretary of Health and Human Services'; and
(5) by adding at the end the following new subsections:
`(g) Legal Counsel- The Board may secure the
services of independent legal counsel, in addition
to or in lieu of any legal counsel provided to the
Board by the General Counsel of the Department
of Health and Human Services.
`(h) Applicability of the Federal Advisory Committee
Act- Unless otherwise provided in this Act, the
Board shall operate under the provisions of the
Federal Advisory Committee Act (5 U.S.C.
App.), and members of the Board shall be
compensated at a daily rate of pay for level IV of
the Executive Schedule under section 5315 of
title 5, United States Code.'.
SEC. 8. SPECIAL EXPOSURE COHORT.
Section 3626 (42 U.S.C. 7384q) is amended--
(1) by striking `the President' each place it appears and inserting `the Secretary of Health and Human Services';
(2) by striking `The President' each place it appears and inserting `The Secretary of Health and Human Services';
