42 U.S.C. § 7384l — Definitions for program administration

Page 7138 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7384e 1 See References in Text note below. shall be determined in accordance with the pro- visions of part B as may be modified by a law enacted after the date of the submittal of the proposal for legislation required by section 7384f of this title. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3611], Oct. 30, 2000, 114 Stat. 1654, 1654A–497.) § 7384e. Establishment of Energy Employees Oc- cupational Illness Compensation Fund (a) Establishment There is hereby established on the books of the Treasury a fund to be known as the ‘‘Energy Employees Occupational Illness Compensation Fund’’ (in this subchapter referred to as the ‘‘compensation fund’’). (b) Amounts in compensation fund The compensation fund shall consist of the fol- lowing amounts: (1) Amounts appropriated to the compensa- tion fund pursuant to the authorization of ap- propriations in section 7384g(b) of this title. (2) Amounts transferred to the compensation fund under subsection (c). (c) Financing of compensation fund Upon the exhaustion of amounts in the com- pensation fund attributable to the authorization of appropriations in section 7384g(b) of this title, the Secretary of the Treasury shall transfer di- rectly to the compensation fund from the Gen- eral Fund of the Treasury, without further ap- propriation, such amounts as are further nec- essary to carry out the compensation program. (d) Use of compensation fund Subject to subsection (e), amounts in the com- pensation fund shall be used to carry out the compensation program. (e) Administrative costs not paid from compensa- tion fund No cost incurred in carrying out the com- pensation program, or in administering the com- pensation fund, shall be paid from the com- pensation fund or set off against or otherwise deducted from any payment to any individual under the compensation program. (f) Investment of amounts in compensation fund Amounts in the compensation fund shall be in- vested in accordance with section 9702 of title 31, and any interest on, and proceeds from, any such investment shall be credited to and become a part of the compensation fund. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3612], Oct. 30, 2000, 114 Stat. 1654, 1654A–497.) § 7384f. Legislative proposal (a) Legislative proposal required Not later than March 15, 2001, the President shall submit to Congress a proposal for legisla- tion to implement the compensation program. The proposal for legislation shall include, at a minimum, the specific recommendations (in- cluding draft legislation) of the President for the following: (1) The types of compensation and benefits, including lost wages, medical benefits, and any lump-sum settlement payments, to be pro- vided under the compensation program. (2) Any adjustments or modifications nec- essary to appropriately administer the com- pensation program under part B. (3) Whether to expand the compensation pro- gram to include other illnesses associated with exposure to toxic substances. (4) Whether to expand the class of individ- uals who are members of the Special Exposure Cohort (as defined in section 7384l(14) of this title). (b) Assessment of potential covered employees and required amounts The President shall include with the proposal for legislation under subsection (a) the fol- lowing: (1) An estimate of the number of covered em- ployees that the President determines were exposed in the performance of duty. (2) An estimate, for each fiscal year of the compensation program, of the amounts to be required for compensation and benefits antici- pated to be provided in such fiscal year under the compensation program. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3613], Oct. 30, 2000, 114 Stat. 1654, 1654A–498.) § 7384g. Authorization of appropriations (a) In general Pursuant to the authorization of appropria- tions in section 3103(a),1 $25,000,000 may be used for purposes of carrying out this subchapter. (b) Compensation fund There is hereby authorized to be appropriated $250,000,000 to the Energy Employees Occupa- tional Illness Compensation Fund established by section 7384e of this title. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3614], Oct. 30, 2000, 114 Stat. 1654, 1654A–498.) Editorial Notes REFERENCES IN TEXT Section 3103(a), referred to in subsec. (a), means sec- tion 1 [div. C, title XXXVI, § 3103(a)] of Pub. L. 106–398, Oct. 30, 2000, 114 Stat. 1654, 1654A–449, which is not clas- sified to the Code. PART B—PROGRAM ADMINISTRATION § 7384l. Definitions for program administration In this subchapter: (1) The term ‘‘covered employee’’ means any of the following: (A) A covered beryllium employee. (B) A covered employee with cancer. (C) To the extent provided in section 7384r of this title, a covered employee with chron- ic silicosis (as defined in that section). (2) The term ‘‘atomic weapon’’ has the meaning given that term in section 2014(d) of this title. (3) The term ‘‘atomic weapons employee’’ means any of the following: (A) An individual employed by an atomic weapons employer during a period when the Page 7139 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7384l employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the pro- duction of an atomic weapon, excluding ura- nium mining and milling. (B) An individual employed— (i) at a facility with respect to which the National Institute for Occupational Safety and Health, in its report dated October 2003 and titled ‘‘Report on Residual Radio- active and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities’’, or any up- date to that report, found that there is a potential for significant residual contami- nation outside of the period in which weapons-related production occurred; (ii) by an atomic weapons employer or subsequent owner or operators of a facility described in clause (i); and (iii) during a period, as specified in such report or any update to such report, of po- tential for significant residual radioactive contamination at such facility. (4) The term ‘‘atomic weapons employer’’ means an entity, other than the United States, that— (A) processed or produced, for use by the United States, material that emitted radi- ation and was used in the production of an atomic weapon, excluding uranium mining and milling; and (B) is designated by the Secretary of En- ergy as an atomic weapons employer for pur- poses of the compensation program. (5) The term ‘‘atomic weapons employer fa- cility’’ means a facility, owned by an atomic weapons employer, that is or was used to proc- ess or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, ex- cluding uranium mining or milling. (6) The term ‘‘beryllium vendor’’ means any of the following: (A) Atomics International. (B) Brush Wellman, Incorporated, and its predecessor, Brush Beryllium Company. (C) General Atomics. (D) General Electric Company. (E) NGK Metals Corporation and its prede- cessors, Kawecki-Berylco, Cabot Corpora- tion, BerylCo, and Beryllium Corporation of America. (F) Nuclear Materials and Equipment Cor- poration. (G) StarMet Corporation and its prede- cessor, Nuclear Metals, Incorporated. (H) Wyman Gordan, Incorporated. (I) Any other vendor, processor, or pro- ducer of beryllium or related products des- ignated as a beryllium vendor for purposes of the compensation program under section 7384m of this title. (7) The term ‘‘covered beryllium employee’’ means the following, if and only if the em- ployee is determined to have been exposed to beryllium in the performance of duty in ac- cordance with section 7384n(a) of this title: (A) A current or former employee (as that term is defined in section 8101(1) of title 5) who may have been exposed to beryllium at a Department of Energy facility or at a fa- cility owned, operated, or occupied by a be- ryllium vendor. (B) A current or former employee of— (i) any entity that contracted with the Department of Energy to provide manage- ment and operation, management and in- tegration, or environmental remediation of a Department of Energy facility; or (ii) any contractor or subcontractor that provided services, including construction and maintenance, at such a facility. (C) A current or former employee of a be- ryllium vendor, or of a contractor or subcon- tractor of a beryllium vendor, during a pe- riod when the vendor was engaged in activi- ties related to the production or processing of beryllium for sale to, or use by, the De- partment of Energy. (8) The term ‘‘covered beryllium illness’’ means any of the following: (A) Beryllium sensitivity as established by— (i) an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells; or (ii) three borderline beryllium lym- phocyte proliferation tests performed on blood cells over a period of 3 years. (B) Established chronic beryllium disease. (C) Any injury, illness, impairment, or dis- ability sustained as a consequence of a cov- ered beryllium illness referred to in subpara- graph (A) or (B). (9) The term ‘‘covered employee with can- cer’’ means any of the following: (A) An individual with a specified cancer who is a member of the Special Exposure Co- hort, if and only if that individual con- tracted that specified cancer after beginning employment at a Department of Energy fa- cility (in the case of a Department of Energy employee or Department of Energy con- tractor employee) or at an atomic weapons employer facility (in the case of an atomic weapons employee). (B)(i) An individual with cancer specified in subclause (I), (II), or (III) of clause (ii), if and only if that individual is determined to have sustained that cancer in the perform- ance of duty in accordance with section 7384n(b) of this title. (ii) Clause (i) applies to any of the fol- lowing: (I) A Department of Energy employee who contracted that cancer after begin- ning employment at a Department of En- ergy facility. (II) A Department of Energy contractor employee who contracted that cancer after beginning employment at a Department of Energy facility. (III) An atomic weapons employee who contracted that cancer after beginning em- ployment at an atomic weapons employer facility. (10) The term ‘‘Department of Energy’’ in- cludes the predecessor agencies of the Depart- Page 7140 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7384l ment of Energy, including the Manhattan En- gineering District. (11) The term ‘‘Department of Energy con- tractor employee’’ means any of the following: (A) An individual who is or was in resi- dence at a Department of Energy facility as a researcher for one or more periods aggre- gating at least 24 months. (B) An individual who is or was employed at a Department of Energy facility by— (i) an entity that contracted with the Department of Energy to provide manage- ment and operating, management and in- tegration, or environmental remediation at the facility; or (ii) a contractor or subcontractor that provided services, including construction and maintenance, at the facility. (12) The term ‘‘Department of Energy facil- ity’’ means any building, structure, or premise, including the grounds upon which such building, structure, or premise is lo- cated— (A) in which operations are, or have been, conducted by, or on behalf of, the Depart- ment of Energy (except for buildings, struc- tures, premises, grounds, or operations cov- ered by Executive Order No. 12344, dated February 1, 1982, pertaining to the Naval Nu- clear Propulsion Program); and (B) with regard to which the Department of Energy has or had— (i) a proprietary interest; or (ii) entered into a contract with an enti- ty to provide management and operation, management and integration, environ- mental remediation services, construction, or maintenance services. (13) The term ‘‘established chronic beryllium disease’’ means chronic beryllium disease as established by the following: (A) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including— (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 test- ing showing pulmonary deficits consistent with chronic beryllium disease. (B) For diagnoses before January 1, 1993, the presence of— (i) occupational or environmental his- tory, or epidemiologic evidence of beryl- lium exposure; and (ii) any three of the following criteria: (I) Characteristic chest radiographic (or computed tomography (CT)) abnor- malities. (II) Restrictive or obstructive lung physiology testing or diffusing lung ca- pacity defect. (III) Lung pathology consistent with chronic beryllium disease. (IV) Clinical course consistent with a chronic respiratory disorder. (V) Immunologic tests showing beryl- lium sensitivity (skin patch test or be- ryllium blood test preferred). (14) The term ‘‘member of the Special Expo- sure Cohort’’ means a Department of Energy employee, Department of Energy contractor employee, or atomic weapons employee who meets any of the following requirements: (A) The employee was so employed for a number of work days aggregating at least 250 work days 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 do- simetry badges for exposure at the plant of the external parts of employee’s body to radiation; or (ii) worked in a job that had exposures comparable to a job that is or was mon- itored through the use of dosimetry badges. (B) The employee was so employed before January 1, 1974, by the Department of En- ergy or a Department of Energy contractor or subcontractor on Amchitka Island, Alas- ka, and was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nu- clear tests. (C)(i) Subject to clause (ii), the employee is an individual designated as a member of the Special Exposure Cohort by the Presi- dent for purposes of the compensation pro- gram under section 7384q of this title. (ii) A designation under clause (i) shall, unless Congress otherwise provides, take ef- fect on the date that is 30 days after the date on which the President submits to Congress a report identifying the individuals covered by the designation and describing the cri- teria used in designating those individuals. (15) The term ‘‘occupational illness’’ means a covered beryllium illness, cancer referred to in paragraph (9)(B), specified cancer, or chron- ic silicosis, as the case may be. (16) The term ‘‘radiation’’ means ionizing ra- diation in the form of— (A) alpha particles; (B) beta particles; (C) neutrons; (D) gamma rays; or (E) accelerated ions or subatomic particles from accelerator machines. (17) The term ‘‘specified cancer’’ means any of the following: (A) A specified disease, as that term is de- fined in section 4(b)(2) of the Radiation Ex- posure Compensation Act (42 U.S.C. 2210 note). (B) Bone cancer. (C) Renal cancers. (D) Leukemia (other than chronic lymphocytic leukemia), if initial occupa- tional exposure occurred before 21 years of age and onset occurred more than two years after initial occupational exposure. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3621], Oct. 30, 2000, 114 Stat. 1654, 1654A–498; Pub. L. Page 7141 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7384n 107–20, title II, § 2403(a), July 24, 2001, 115 Stat. 175; Pub. L. 107–107, div. C, title XXXI, § 3151(a)(1), (4)(C), Dec. 28, 2001, 115 Stat. 1371, 1374; Pub. L. 108–375, div. C, title XXXI, §§ 3166(b)(2), 3168(a), Oct. 28, 2004, 118 Stat. 2189, 2190; Pub. L. 118–31, div. E, title LV, § 5501(b), Dec. 22, 2023, 137 Stat. 956.) Editorial Notes REFERENCES IN TEXT Executive Order No. 12344, referred to in par. (12)(A), is set out as a note under section 2511 of Title 50, War and National Defense. Section 4(b)(2) of the Radiation Exposure Compensa- tion Act, referred to in par. (17)(A), is section 4(b)(2) of Pub. L. 101–426, which is set out in a note under section 2210 of this title. AMENDMENTS 2023—Par. (8)(A). Pub. L. 118–31 inserted dash after ‘‘established by’’, designated remainder of existing pro- visions as cl. (i), and added cl. (ii). 2004—Par. (3). Pub. L. 108–375, § 3168(a), amended par. (3) generally. Prior to amendment, par. (3) read as fol- lows: ‘‘The term ‘atomic weapons employee’ means 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.’’ Par. (14)(C)(ii). Pub. L. 108–375, § 3166(b)(2), substituted ‘‘30 days’’ for ‘‘180 days’’. 2001—Par. (17)(C). Pub. L. 107–20 added subpar. (C). Par. (17)(D). Pub. L. 107–107, § 3151(a)(1), added subpar. (D). Par. (18). Pub. L. 107–107, § 3151(a)(4)(C), struck out par. (18) which read as follows: ‘‘The term ‘survivor’ means any individual or individuals eligible to receive compensation pursuant to section 8133 of title 5.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2001 AMENDMENTS Pub. L. 107–107, div. C, title XXXI, § 3151(a)(4)(D), Dec. 28, 2001, 115 Stat. 1374, provided that: ‘‘The amendments made by this paragraph [amending this section and sec- tions 7384s and 7384u of this title] shall take effect on July 1, 2001.’’ Pub. L. 107–20, title II, § 2403(b), July 24, 2001, 115 Stat. 175, provided that: ‘‘This section [amending this sec- tion] shall be effective on October 1, 2001.’’ § 7384m. Expansion of list of beryllium vendors Not later than December 31, 2002, the Presi- dent may, in consultation with the Secretary of Energy, designate as a beryllium vendor for pur- poses of section 7384l(6) of this title any vendor, processor, or producer of beryllium or related products not previously listed under or des- ignated for purposes of such section 7384l(6) of this title if the President finds that such vendor, processor, or producer has been engaged in ac- tivities related to the production or processing of beryllium for sale to, or use by, the Depart- ment of Energy in a manner similar to the enti- ties listed in such section 7384l(6) of this title. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3622], Oct. 30, 2000, 114 Stat. 1654, 1654A–502.) Executive Documents DELEGATION OF FUNCTIONS For delegation of certain functions of the President under this section, see Ex. Ord. No. 13179, Dec. 7, 2000, 65 F.R. 77487, set out as a note under section 7384 of this title. § 7384n. Exposure in the performance of duty (a) Beryllium A covered beryllium employee shall, in the ab- sence of substantial evidence to the contrary, be determined to have been exposed to beryllium in the performance of duty for the purposes of the compensation program if, and only if, the cov- ered beryllium employee was— (1) employed at a Department of Energy fa- cility; or (2) present at a Department of Energy facil- ity, or a facility owned and operated by a be- ryllium vendor, because of employment by the United States, a beryllium vendor, or a con- tractor or subcontractor of the Department of Energy, during a period when beryllium dust, particles, or vapor may have been present at such facility. (b) Cancer An individual with cancer specified in sub- clause (I), (II), or (III) of section 7384l(9)(B)(ii) of this title shall be determined to have sustained that cancer in the performance of duty for pur- poses of the compensation program if, and only if, the cancer specified in that subclause was at least as likely as not related to employment at the facility specified in that subclause, as deter- mined in accordance with the guidelines estab- lished under subsection (c). (c) Guidelines (1) For purposes of the compensation program, the President shall by regulation establish guidelines for making the determinations re- quired by subsection (b). (2) The President shall establish such guide- lines after technical review by the Advisory Board on Radiation and Worker Health under section 7384o of this title. (3) Such guidelines shall— (A) be based on the radiation dose received by the employee (or a group of employees per- forming similar work) at such facility 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 such tables may be updated under section 7(b)(3) of such Act from time to time; (B) incorporate the methods established under subsection (d); and (C) take into consideration the type of can- cer, past health-related activities (such as smoking), information on the risk of devel- oping a radiation-related cancer from work- place exposure, and other relevant factors. (4) In the case of an atomic weapons employee described in section 7384l(3)(B) of this title, the following doses of radiation shall be treated, for purposes of paragraph (3)(A) of this subsection, as part of the radiation dose received by the em- ployee at such facility: (A) Any dose of ionizing radiation received by that employee from facilities, materials, devices, or byproducts used or generated in the research, development, production, dis-