42 U.S.C. § 7384n — Exposure in the performance of duty

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- Page 7142 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7384o mantlement, transportation, or testing of nu- clear weapons, or from any activities to re- search, produce, process, store, remediate, or dispose of radioactive materials by or on be- half of the Department of Energy (except for activities covered by Executive Order No. 12344, dated February 1, 1982 (42 U.S.C. 7158 note) pertaining to the Naval Nuclear Propul- sion Program). (B) Any dose of ionizing radiation received by that employee from a source not covered by subparagraph (A) that is not distinguishable through reliable documentation from a dose covered by subparagraph (A). (d) Methods for radiation dose reconstructions (1) The President shall, through any Federal agency (other than the Department of Energy) or official (other than the Secretary of Energy or any other official within the Department of Energy) that the President may designate, es- tablish by regulation methods for arriving at reasonable estimates of the radiation doses re- ceived by an individual specified in subpara- graph (B) of section 7384l(9) of this title at a fa- cility specified in that subparagraph by each of the following employees: (A) An employee who was not monitored for exposure to radiation at such facility. (B) An employee who was monitored inad- equately for exposure to radiation at such fa- cility. (C) An employee whose records of exposure to radiation at such facility are missing or in- complete. (2) The President shall establish an inde- pendent review process using the Advisory Board on Radiation and Worker Health to— (A) assess the methods established under paragraph (1); and (B) verify a reasonable sample of the doses established under paragraph (1). (e) Information on radiation doses (1) The Secretary of Energy shall provide, to each covered employee with cancer specified in section 7384l(9)(B) of this title, information specifying the estimated radiation dose of that employee during each employment specified in section 7384l(9)(B) of this title, whether estab- lished by a dosimetry reading, by a method es- tablished under subsection (d), or by both a do- simetry reading and such method. (2) The Secretary of Health and Human Serv- ices and the Secretary of Energy shall each make available to researchers and the general public information on the assumptions, method- ology, and data used in establishing radiation doses under subsection (d). The actions taken under this paragraph shall be consistent with the protection of private medical records. (Pub. L. 106–398, § 1 [div. C, title XXXVI, § 3623], Oct. 30, 2000, 114 Stat. 1654, 1654A–502; Pub. L. 108–375, div. C, title XXXI, § 3168(b), Oct. 28, 2004, 118 Stat. 2190.) Editorial Notes REFERENCES IN TEXT Section 7(b) of the Orphan Drug Act, referred to in subsec. (c)(3)(A), is section 7(b) of Pub. L. 97–414, which is set out in a note under section 241 of this title. AMENDMENTS 2004—Subsec. (c)(4). Pub. L. 108–375 added par. (4). 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. § 7384o. Advisory Board on Radiation and Work- er Health (a) Establishment (1) Not later than 120 days after October 30, 2000, the President shall establish and appoint an Advisory Board on Radiation and Worker Health (in this section referred to as the ‘‘Board’’). (2) The President shall make appointments to the Board in consultation with organizations with expertise on worker health issues in order to ensure that the membership of the Board re- flects a balance of scientific, medical, and work- er perspectives. (3) The President shall designate a Chair for the Board from among its members. (b) Duties The Board shall advise the President on— (1) the development of guidelines under sec- tion 7384n(c) of this title; (2) the scientific validity and quality of dose estimation and reconstruction efforts being performed for purposes of the compensation program; and (3) such other matters related to radiation and worker health in Department of Energy facilities as the President considers appro- priate. (c) Staff (1) The President shall appoint a staff to fa- cilitate the work of the Board. The staff shall be headed by a Director who shall be appointed under subchapter VIII of chapter 33 of title 5. (2) The President may accept as staff of the Board personnel on detail from other Federal agencies. The detail of personnel under this paragraph may be on a nonreimbursable basis. (d) Expenses Members of the Board, other than full-time employees of the United States, while attending meetings of the Board or while otherwise serv- ing at the request of the President, while serv- ing away from their homes or regular places of business, shall be allowed travel and meal ex- penses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5 for indi- viduals in the Government serving without pay. (e) Security clearances (1) The Secretary of Energy shall ensure that the members and staff of the Board, and the con- tractors performing work in support of the Board, are afforded the opportunity to apply for a security clearance for any matter for which such a clearance is appropriate. The Secretary should, not later than 180 days after receiving a completed application, make a determination whether or not the individual concerned is eligi- ble for the clearance.