Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 41617 

Clinton, NC, Sampson County, Takeoff 

Minimums and Obstacle DP, Amdt 1. 

Fayetteville, NC, Fayetteville Regional/ 

Grannis Field, LOC BC RWY 22, Amdt 7. 

Fayetteville, NC, Fayetteville Regional/ 

Grannis Field, RNAV (GPS) RWY 22, Amdt 

3. 

Fayetteville, NC, Fayetteville Regional/ 

Grannis Field, VOR RWY 22, Amdt 7. 

Hatteras, NC, Billy Mitchell, Takeoff 

Minimums and Obstacle DP, Orig. 

Lincolnton, NC, Lincolnton-Lincoln Rgnl, 

GPS RWY 5, Orig, CANCELLED. 

Lincolnton, NC, Lincolnton-Lincoln Rgnl, 

RNAV (GPS) RWY 5, Orig. 

Lincolnton, NC, Lincolnton-Lincoln Rgnl 

RNAV (GPS) RWY 23, Orig. 

Teterboro, NJ, Teterboro, RNAV (GPS) Y 

RWY 6, Amdt 2. 

Teterboro, NJ, Teterboro, RNAV (RNP) RWY 

19, Orig. 

Teterboro, NJ, Teterboro, RNAV (RNP) Z 

RWY 6, Orig. 

Jamestown, TN, Jamestown Muni, Takeoff 

Minimums and Obstacle DP, Orig. 

Provo, UT, Provo Muni, RNAV (GPS) RWY 

13, Amdt 1A. 

Green Bay, WI, Austin Straubel Intl, VOR/ 

DME OR TACAN RWY 36, Amdt 10. 

Effective 22 OCT 2009 

Jackson, TN, Mc Kellar-Sipes Rgnl, VOR 

RWY 2, Amdt 13. 

Livingston, TN, Livingston Muni, RNAV 

(GPS) RWY 3, Orig. 

Livingston, TN, Livingston Muni, RNAV 

(GPS) RWY 21, Orig. 

Livingston, TN, Livingston Muni, Takeoff 

Minimums and Obstacle DP, Amdt 2. 

Livingston, TN, Livingston Muni, VOR/DME 

RWY 21, Amdt 5. 

[FR Doc. E9–19658 Filed 8–17–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF LABOR 

Office of Workers’ Compensation 

Programs 

20 CFR Part 10 

RIN 1215–AB66 

Claims for Compensation; Death 

Gratuity Under the Federal Employees’ 

Compensation Act 

AGENCY: Office of Workers’ 

Compensation Programs, Employment 

Standards Administration, Labor. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: This document contains the 

interim final regulations governing the 

administration of the death gratuity 

created by section 1105 of the National 

Defense Authorization Act for Fiscal 

Year 2008, Public Law 110–181, by the 

Department of Labor (Department or 

DOL). Section 1105 provides a death 

gratuity payment to eligible survivors of 

Federal employees and nonappropriated fund instrumentality 

employees (NAFI employees) who die of 

injuries incurred in connection with 

service with an Armed Force in a 

contingency operation. Section 1105 

amended the Federal Employees’ 

Compensation Act (FECA) to add a new 

section, designated as section 8102a. 

The Secretary of Labor has the authority 

to administer and to decide all 

questions arising under FECA. 5 U.S.C. 

8145. FECA authorizes the Secretary to 

prescribe rules and regulations 

necessary for the administration and 

enforcement of the Act. 5 U.S.C. 8149. 

The Secretary has delegated the 

authority provided by 5 U.S.C. 8145 and 

8149 to the Assistant Secretary for 

Employment Standards who then 

delegated that authority to the Director 

of the Office of Workers’ Compensation 

Programs (OWCP), who is responsible 

for the administration and 

implementation of FECA. 20 CFR 1.1. 

Thus OWCP will administer the 

adjudication of claims and the payment 

of the death gratuity under new section 

8102a. 

DATES: Effective Date: This interim final 

rule is effective on August 18, 2009. 

Applicability date: This interim final 

rule applies to all claims filed on or 

after August 18, 2009. This rule also 

applies to any claims that are pending 

before OWCP on August 18, 2009. 

Comments: The Department invites 

comments on the interim final rule from 

interested parties. Comments on the 

interim final rule must be postmarked 

by October 19, 2009. Written comments 

on the new information collection 

requirements in this rule must be 

postmarked by October 19, 2009. 

ADDRESSES: You may submit comments 

on the interim final rule, identified by 

Regulatory Information Number (RIN) 

1215–AB66, by any ONE of the 

following methods: 

Federal e-Rulemaking Portal: The 

Internet address to submit comments on 

the rule is http://www.regulations.gov. 

Follow the Web site instructions for 

submitting comments. 

Mail: Submit written comments to 

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. Because of 

security measures, mail directed to 

Washington, DC is sometimes delayed. 

We will only consider comments 

postmarked by the U.S. Postal Service or 

other delivery service on or before the 

deadline for comments. 

Instructions: All comments must 

include the RIN 1215–AB66 for this 

rulemaking. Receipt of any comments, 

whether by mail or Internet, will not be 

acknowledged. Because DOL continues 

to experience delays in receiving postal 

mail in the Washington, DC area, 

commenters are encouraged to submit 

any comments by mail early. 

Comments on the interim final rule 

will be available for public inspection 

during normal business hours at the 

address listed above for mailed 

comments. Persons who need assistance 

to review the comments will be 

provided with appropriate aids such as 

readers or print magnifiers. Copies of 

this interim final rule may be obtained 

in alternative formats (e.g., large print, 

audiotape or disk) upon request. To 

schedule an appointment to review the 

comments and/or to obtain the interim 

final rule in an alternative format, 

contact OWCP at 202–693–0031 (this is 

not a toll-free number). 

Written comments on the new 

information collection requirements 

described in this interim final rule 

should be sent to the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 

Attention: Desk Officer for Employment 

Standards Administration, Washington, 

DC 20503. 

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). 

Individuals with hearing or speech 

impairments may access this telephone 

number via TTY by calling the toll-free 

Federal Information Relay Service at 1– 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The National Defense Authorization 

Act for Fiscal Year 2008, Public Law 

110–181, was enacted on January 28, 

2008. Section 1105 of Public Law 110– 

181 amended the FECA, creating a new 

section 8102a. The section establishes a 

new FECA benefit for eligible survivors 

of Federal employees and NAFI 

employees who die of injuries incurred 

in connection with service with an 

Armed Force in a contingency 

operation. The new section 8102a states 

that the United States will pay a death 

gratuity of up to $100,000 to those 

survivors upon receiving official 

notification of the employee’s death. 


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41618 Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 

II. Administrative Procedure Act Issues 

Section 8102a was effective upon 

enactment of Public Law 110–181, on 

January 28, 2008. It states that the 

United States will pay the death gratuity 

of up to $100,000 to the eligible 

survivors ‘‘immediately upon receiving 

official notification’’ of an employee’s 

death. The section also contains a 

retroactive payment provision, stating 

that the death gratuity will be paid for 

employees of certain agencies who died 

on or after October 7, 2001, due to 

injuries incurred in connection with 

service with an Armed Force in the 

theater of operations of Operation 

Enduring Freedom and Operation Iraqi 

Freedom. Both the immediate payment 

provision and the retroactive payment 

provision strongly suggest that the 

Department act as quickly as possible to 

implement section 8102a. 

Therefore, the Department believes 

that the ‘‘good cause’’ exception to APA 

notice and comment rulemaking applies 

to this rule. Under that exception, preadoption procedures are not required 

‘‘when the agency for good cause finds 

(and incorporates the finding and a brief 

statement of reasons therefore in the 

rules issued) that notice and public 

procedure thereon are impracticable, 

unnecessary, or contrary to the public 

interest.’’ 5 U.S.C. 553(b)(B). DOL 

cannot adjudicate claims and pay the 

death gratuity in every potential claim 

until these regulations are promulgated. 

The Department believes that the 

lengthy steps necessary for the usual 

notice and comment under the APA 

would be contrary to Congress’ 

intention that the death gratuity be paid 

as soon as possible, especially in the 

case of survivors to whom the 

retroactive payment provision applies, 

where the employee may have died 

years ago. 

Publication of a notice of proposed 

rulemaking in the Federal Register, 

which entails among other things, 

receipt of, consideration of, and 

response to comments submitted by 

interested parties; modification of the 

proposed rules, if appropriate; and 

publication in the Federal Register 

would take many months at a minimum, 

further delaying payment to deserving 

survivors of employees covered by this 

benefit. DOL does not believe that the 

benefits that might be gained from 

further consideration of these rules 

outweigh the delay in making payments 

to survivors as soon as possible, as 

intended by Congress when it required 

that these payments be made 

‘‘immediately upon receiving official 

notification.’’ Family members and 

other survivors left behind by those 

brave individuals, who gave their lives 

in furtherance of the nations’ strategic 

and vital interests here and abroad, 

deserve the government’s 

compassionate response without further 

delay. 

While some initial claims may be paid 

easily without issuance of a rule 

interpreting and implementing this new 

FECA provision, many of the claims 

covered by this provision require 

regulatory guidance to adjudicate. 

Published regulations are the best 

vehicle to provide authoritative 

guidance concerning this provision 

since it incorporates standards and 

terms quite different from those 

applicable to many of the requirements 

for adjudicating workers’ compensation 

claims under FECA. Accordingly, the 

Department believes that under 5 U.S.C. 

553(b)(B), good cause exists for waiver 

of notice and comment rulemaking 

procedures because issuance of 

proposed rules would be impracticable 

and contrary to the public interest. 

While notice and comment 

rulemaking is being waived, the 

Department is interested in comments 

and advice regarding changes that 

should be made to these interim 

regulations. The Department will 

carefully consider all comments on the 

regulations contained in this interim 

final rule postmarked on or before 

October 19, 2009 and will publish the 

final regulations with any necessary 

changes. 

Under the APA, substantive rules 

generally cannot take effect until 30 

days after the rule is published in the 

Federal Register. However, section 

553(d)(3) of the APA states that agencies 

may waive this 30-day requirement for 

‘‘good cause’’ and establish an earlier 

effective date. As explained above, the 

Department believes that there is ‘‘good 

cause’’ for waiver of the APA 

requirement for notice and comment 

rulemaking because it would be 

impracticable and contrary to the public 

interest for the Department to fulfill that 

requirement. Similarly, the Department 

believes that the ‘‘good cause’’ 

exception to the 30-day effective date 

requirement for substantive rules in the 

APA applies to this rule, because 

observing this requirement would be 

both impractical and contrary to the 

public interest. As noted above, DOL 

will not be able to adjudicate all claims 

under new section 8102a until the 

regulations in this rule are in effect. 

Since Congress has directed that the 

United States pay the death gratuity 

‘‘immediately,’’ the Department believes 

that ‘‘good cause’’ exists for waiver of 

the usual 30-day effective date 

requirement for substantive rules and 

for this rule to become effective 

immediately upon the date of its 

publication in the Federal Register. 

DOL believes that it would be clearly 

contrary to the public interest and 

would serve no purpose to delay the 

effective date of this rule beyond the 

date of its publication in the Federal 

Register. The thirty day delay would 

provide no benefit to any party while 

further delaying DOL’s ability to 

implement this provision. 

III. Overview of the Regulations 

In enacting section 1105 of Public 

Law 110–181, Congress created a new 

FECA benefit of a death gratuity up to 

$100,000 for survivors of employees 

who die of injuries incurred in 

connection with their service with an 

Armed Force in a contingency 

operation. DOL has determined for 

equitable reasons that every death 

gratuity will be paid in the amount of 

$100,000. (The $100,000 gratuity is 

offset by other death gratuities that have 

been paid for the same death.) These 

regulations will further define which 

deaths qualify for the payment of the 

death gratuity. The regulations will also 

describe the processes that OWCP will 

use so that claimants who are survivors 

and alternate beneficiaries of deceased 

employees will receive payment of the 

death gratuity as intended by Congress. 

Finally, the regulations will explain 

how OWCP will apply the statutory 

offset provision for each death gratuity 

payment. 

20 CFR Part 10, Subpart J 

Section 10.900 

The death gratuity is payable to 

claimants who are survivors or 

designated beneficiaries of ‘‘an 

employee who dies of injuries incurred 

in connection with the employee’s 

service with an Armed Force in a 

contingency operation.’’ Section 8102a. 

Section 10.900 adopts the same 

definition of ‘‘Armed Force’’ as found in 

10 U.S.C. 101(a)(4): ‘‘ ‘armed forces’ 

means the Army, Navy, Air Force, 

Marine Corps, and Coast Guard.’’ 

Subsection 10.900(b) explains that the 

death gratuity payment in section 8102a 

is a FECA benefit, as defined by section 

10.5(a) of part 10. Because Congress 

enacted the death gratuity as section 

8102a in the FECA, all the provisions 

and definitions in the FECA and in parts 

10 and 25 are applicable to the death 

gratuity unless otherwise specified in 

section 8102a and these regulations. The 

FECA provisions applicable to the death 

gratuity include, for example, the 

timeliness provisions for filing a claim 

in section 8122 of the FECA, the 


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Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 41619 

definition of injury in section 8101(5) of 

the FECA, and the various 

administrative provisions applicable to 

a FECA claim. 

Pursuant to section 8137 of FECA and 

the applicable regulations, OWCP is 

required to pay an employee suffering a 

FECA covered injury who is neither a 

citizen of the United States nor a 

resident of the United States or Canada 

the lesser of workers’ compensation 

benefits under FECA or local law. Since 

the new death gratuity payment is a 

FECA benefit, it will be included in that 

determination and thus will not be 

payable to such an employee where it is 

determined that the local law applicable 

to such employee provides a lesser 

benefit than that available under FECA. 

Section 10.901 

Section 10.901 restates Congress’ 

definition of ‘‘employee’’ in new section 

8102a. For purposes of the death 

gratuity, the term ‘‘employee’’ has the 

meaning as stated in section 8101(1) of 

the FECA and also includes NAFI 

employees as defined in section 

1587(a)(1) of Title 10 of the United 

States Code. 

Section 10.902 

The death gratuity is payable to 

survivors and other designated 

beneficiaries of employees who die of 

injuries incurred in connection with 

their service with an Armed Force in a 

contingency operation. Section 10.902 

clarifies that every such eligible death 

that occurs after the date of the 

enactment of Public Law 110–181 

qualifies for the death gratuity. 

Section 10.903 

Section 10.903 implements the 

retroactivity provision contained in new 

section 8102a. The statute gives ‘‘the 

Secretary concerned’’ discretion to 

apply the death gratuity retroactively to 

employee deaths that occurred on or 

after October 7, 2001, and before the 

date of enactment of section 8102a, if 

the deaths resulted from injuries 

incurred in connection with an 

employee’s service with an Armed 

Force in the theater of operations of 

Operation Enduring Freedom or 

Operation Iraqi Freedom. New section 

8102a does not further define ‘‘Secretary 

concerned’’ nor does it indicate any 

limits on the discretion of the 

‘‘Secretary concerned’’ to apply the 

death gratuity retroactively. The 

Department interprets the ‘‘Secretary 

concerned’’ to mean the Secretary in 

charge of the employing agency of an 

employee who died in the 

circumstances specified in new section 

8102a. The administration of any agency 

or non-appropriated fund 

instrumentality not headed by a 

Secretary will be considered ‘‘the 

Secretary concerned’’ for purposes of 

this provision. 

Furthermore, in order to promote 

efficiency in the administration of this 

benefit and to provide equal treatment 

and clear guidance to all covered 

employees and beneficiaries, DOL has 

requested that employing agencies 

whose employees are potentially 

covered by this new benefit make a 

determination concerning retroactive 

coverage in time for this rule to reflect 

that determination and inform all 

survivors of employees who died as a 

result of covered injuries during the 

retroactive period whether they are 

entitled to benefits pursuant to this 

provision. 

DOL engaged in an extensive outreach 

effort to determine whether any 

agencies desired to exclude survivors of 

employees who died as a result of 

covered injuries during the retroactive 

period. This effort included sending a 

letter to the Chief Human Capital Officer 

(or equivalent) of every Federal agency 

(as well as the Department of Defense on 

behalf of nonappropriated fund 

instrumentality employees) notifying 

them of the procedure for informing 

DOL of their decision concerning 

retroactive coverage. To minimize the 

burden on agencies, no action was 

requested of agencies wishing to have 

their employees included in retroactive 

coverage. The letter requested that 

agencies wishing to opt out of such 

coverage send a letter to DOL stating 

their desire to opt out of retroactive 

coverage. In addition to sending these 

individual letters, DOL distributed 

copies of the letter at the quarterly 

interagency FECA meeting held on June 

9 attended by agency human resource 

staff, posted a notice on its website 

informing agencies of their options 

concerning retroactive coverage, and 

emailed workers’ compensation contacts 

at each Federal agency notifying them of 

the web posting. No agencies chose to 

opt out of retroactive coverage. 

Accordingly, new section 8102a of 

FECA will apply retroactively to all 

employees covered by section 10.903. 

Section 10.904 

New section 8102a is a FECA benefit, 

and under FECA, the term ‘‘injuries’’ 

includes occupational diseases in 

addition to traumatic injuries. Section 

10.904 explains that the death gratuity 

is applicable to employee deaths due to 

occupational diseases incurred in 

connection with the employee’s service 

with an Armed Force in a contingency 

operation. 

Section 10.905 

Section 10.905 states that if an 

employee dies of injuries incurred in 

connection with his or her service with 

an Armed Force in a contingency 

operation, the death will qualify for the 

death gratuity regardless of how long 

after that injury the employee dies. As 

with other FECA death benefits, there is 

no requirement that the employee’s 

death occur within a certain time period 

after an injury to qualify for the death 

gratuity benefit. While the death 

gratuity for members of the Armed 

Forces, codified at 10 U.S.C. 1475–1480, 

requires that the death of a member of 

the Armed Forces occur within 120 days 

after discharge to qualify for that 

gratuity, see 10 U.S.C. 1476, new section 

8102a contains no similar statutory 

requirement. 

Section 10.906 

Section 10.906 explains the 

definitions applicable to survivors for 

purposes of the death gratuity. Many of 

these terms are specifically defined in 

section 1105 of Public Law 110–181. 

These statutory definitions of survivors 

in new section 8102a differ from the 

existing definitions of the same terms in 

the FECA at 5 U.S.C. 8101. The 

definitions in section 8102a and in 

section 10.906 are solely applicable to 

subpart J and do not alter any existing 

definitions of the same terms in any 

other subpart of Part 10. Thus in certain 

circumstances the survivors eligible for 

payment of the death gratuity under 

new section 8102a will differ from the 

survivors eligible for compensation for 

the death of Federal employees under 

section 8133 of FECA. 

The text of section 8102a that defines 

the terms applicable to survivors is a 

duplication of the former 10 U.S.C. 

1477, which defines eligible survivors 

for the death gratuity paid to members 

of the Armed Forces who die from 

injuries incurred during active duty or 

inactive duty training. 10 U.S.C. 1475– 

1480. 10 U.S.C. 1477 was originally 

enacted on September 2, 1958. See 

Public Law 85–861, 72 Stat. 1452, 1453 

(1958). Its language remained 

unchanged until it was amended by 

section 645 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181). Congress used the 

definitions in the original section 1477 

for the death gratuity in new section 

8102a. 

Subsection 10.906(a)(1) defines 

‘‘surviving spouse’’ as ‘‘the person who 

was legally married to the deceased 

employee at the time of his or her 

death.’’ Subsection 10.906(a)(1) adopts 

the definition of ‘‘surviving spouse’’ 


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41620 Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 

from the Department of the Navy 

regulations applicable to the original 10 

U.S.C. 1477. The Navy regulations were 

first promulgated in September 1959, 

and the definition of ‘‘surviving spouse’’ 

remained unchanged throughout the life 

of the original 10 U.S.C. 1477. Since 

Congress duplicated the original section 

1477 for the death gratuity in new 

section 8102a, subsection 10.906(a)(1) 

adopts the Navy regulation’s longstanding definition of ‘‘surviving 

spouse.’’ 

Subsection 10.906(a)(2) states the 

definition of ‘‘children’’ given in new 

section 8102a. Unlike the FECA 

definition of ‘‘child’’ at 5 U.S.C. 8101(9), 

section 8102a defines ‘‘children’’ to 

mean all of the employee’s natural 

children, adopted children, and some 

stepchildren without regard to the 

child’s age, marital status, or 

dependency on the employee. Section 

8102a includes stepchildren in the 

definition of ‘‘children’’ if the stepchild 

was part of the employee’s household at 

the time of the employee’s death. 

Subsection 10.906(a)(2)(A) defines 

‘‘household’’ for this purpose. The 

definition limits eligible stepchildren to 

those who were sharing a household 

with the employee pursuant to a written 

custody agreement or who were actually 

sharing a home for the majority of the 

time. For a natural child who is an 

illegitimate child of a male employee to 

be considered an eligible survivor of 

that employee, the child must satisfy 

one of the four criteria listed in section 

10.906(a)(2)(B). These criteria are 

specifically contained in new section 

8102a. 

Subsection 10.906(a)(3) states the 

definition of ‘‘parents.’’ New section 

8102a states that parents include fathers 

and mothers through adoption and 

persons who stood in loco parentis to 

the employee for a period of not less 

than one year at any time before the 

person became an employee. Subsection 

10.906(a)(3)(A) explains that a person 

stood in loco parentis to an employee 

when the person assumed the status of 

parent toward the employee. A person 

will be considered to stand in loco 

parentis when the person takes a child 

of another into his or her home and 

treats the child as a member of his or 

her family, providing parental 

supervision, support, and education as 

if the child were his or her own child. 

New section 8102a mandates that only 

one father and one mother, or their 

counterparts in loco parentis may be 

recognized in any case and that 

preference will be given to those who 

exercise a parental relationship on the 

date, or most nearly before the date, on 

which the decedent became an 

employee. These requirements are 

stated at subsection 10.906(a)(3)(B–C). 

Section 10.907 

Section 10.907 states the order of 

precedence OWCP will use to determine 

which survivors will receive payment of 

the death gratuity under this subpart. 

This order of precedence is explicitly 

provided by new section 8102a. The 

third place in the order of precedence is 

taken by an employee’s parents, 

brothers, or sisters, as designated by the 

employee, if the employee before his or 

her death completes a survivor 

designation according to the procedures 

described in section 10.909. If the 

employee does not complete any such 

survivor designation, the order of 

precedence will move directly to the 

employee’s parents in equal shares, 

followed by the employee’s siblings in 

equal shares. 

Section 10.908 

In addition to the survivor 

designation mentioned in subsection 

10.907(c), section 10.908 explains that 

an employee before his or her death can 

designate an alternate beneficiary or 

beneficiaries to receive up to 50 percent 

of the death gratuity. The alternate 

beneficiary designation is separate from 

the order of precedence. For example, 

an employee may designate an alternate 

beneficiary to receive 50% of the death 

gratuity payment. If that employee’s 

death qualifies for the death gratuity, 

and the employee is survived by his 

spouse, the employee’s spouse will 

receive 50% of the death gratuity and 

the designated alternate beneficiary will 

receive 50%. The alternate beneficiary 

can be any person, including anyone 

named in the order of precedence, but 

it must be an actual living person rather 

than a trust or corporation or other legal 

entity. The procedure to designate an 

alternate beneficiary is discussed in 

section 10.909. 

Section 10.909 

Section 10.909 discusses the 

procedure by which an employee may 

make a survivor designation under 

subsection 10.907(c) or an alternate 

beneficiary designation under section 

10.908. Subsection 10.909(a) explains 

that designation form CA–40, 

Designation of a Recipient of the Death 

Gratuity Payment under Section 1105 of 

Public Law 110–181, must be used to 

make both types of designations. The 

designation form may be completed at 

any time before the employee’s death, 

regardless of the time of injury. The 

form will not be valid unless it is signed 

by the employee and it is received and 

signed prior to the death of the 

employee by the supervisor of the 

employee or by another official of the 

employing agency authorized to do so. 

This requirement is intended to ensure 

that all designation forms are authentic. 

When making a survivor designation 

under subsection 10.907(c), an 

employee may designate any 

combination of any of his or her parents, 

brothers, or sisters to occupy the third 

space in the order of precedence under 

section 10.907. Subsection 10.909(c) 

explains that if the employee designates 

any of his or her parents, brothers, or 

sisters under the survivor designation 

provision in subsection 10.907(c), but 

the designation fails to specify what 

percent of the death gratuity each 

designated survivor should receive, 

DOL will honor the designation by 

disbursing the death gratuity to each 

designated survivor in equal shares, if 

the persons in the third place of the 

order of precedence are entitled to 

receive payment for a particular 

employee. 

Subsection 10.909(d) explains that 

unlike the survivor designation, if an 

employee makes an alternate beneficiary 

designation but fails to indicate the 

percentage to be paid to the alternate 

beneficiary, the designation to that 

person will be invalid. The alternate 

beneficiary designation is treated 

differently from the survivor 

designation because the entitlement of 

any alternate beneficiaries to a portion 

of the death gratuity is not as clear as 

the survivors’ entitlement, because the 

survivors are named in the order of 

precedence. Therefore, an employee 

must fully complete designation form 

CA–40, specifying an alternate 

beneficiary’s name and what percentage 

of the gratuity he or she should receive, 

to ensure that OWCP can honor the 

designation. Additionally, new section 

8102a requires that designations to 

alternate beneficiaries be in 10 percent 

increments, up to the maximum of 50 

percent. Therefore, no more than five 

alternate beneficiaries may be 

designated. 

Subsection 10.909(b) states that any 

paper executed prior to the effective 

date of this regulation that specifies an 

alternate beneficiary of the death 

gratuity payment will serve as a valid 

designation as long as it is in writing, 

was completed before the employee’s 

death, was signed by the employee, and 

was signed prior to the death of the 

employee by the supervisor of the 

employee or by another official of the 

employing agency authorized to do so. 

DOL acknowledges that employees who 

have already suffered fatal injuries 

incurred while performing work in 

contingency operations did not have 


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Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 41621 

access to designation form CA–40. DOL 

will honor designations made by these 

employees as long as the document used 

to make the designation includes all the 

assurances of authenticity that are 

required of form CA–40. 

Section 10.910 

Section 10.910 explains what happens 

if a person entitled to a portion of the 

death gratuity payment dies after the 

death of the covered employee but 

before receiving his or her portion of the 

death gratuity. Since the statute 

provides that, ‘‘[i]f a person entitled to 

all or a portion of a death gratuity under 

paragraph (1) or (4) dies before the 

person receives the death gratuity, it 

shall be paid to the living survivor next 

in the order prescribed by paragraph 

(1),’’ the death gratuity is not 

inheritable. 5 U.S.C. 8102a(d)(5). These 

provisions are not applicable to an 

individual potentially eligible to receive 

all or a portion of a death gratuity 

because of family relationship or 

designation who dies prior to the death 

of a covered employee because that 

person was never ‘‘entitled to all or a 

portion of a death gratuity.’’ 

Accordingly, subsection 10.910(a) 

states that if a person who is entitled to 

all or a portion of the death gratuity due 

to his or her place in the order of 

precedence in section 10.907 dies after 

the death of the covered employee but 

before receiving payment, that portion 

will be paid to the living survivor(s) 

otherwise eligible according to the order 

of precedence. For example, an 

employee has no living spouse but has 

three children. If the employee dies, his 

three children would be entitled to 

equal shares of the death gratuity 

according to the order of precedence. If 

one of those children dies after the 

employee dies but before receiving 

payment, that portion of the death 

gratuity would be paid to the next 

person in the statutory order of 

preference, the surviving parents. If 

there is no other entitled beneficiary, 

that portion of the gratuity will not be 

paid. 

Subsection 10.910(b) explains that if a 

survivor designated according to 

subsection 10.907(c) dies after the death 

of the covered employee but before 

receiving a portion of the death gratuity 

to which he or she is entitled, the 

portion will be paid to the next living 

survivor in the statutory order of 

precedence. For example, an employee 

with no spouse and no children 

designates under subsection 10.907(c) 

that her mother receive 50 percent of the 

death gratuity, her older brother receive 

30 percent, and her two younger sisters 

receive 10 percent each. One of the 

sisters dies before receiving payment. 

That 10 percent designation would pass 

to the next living survivor according to 

the order of precedence; in this case, 

that would be the surviving parents 

pursuant to section 8102a(d)(1)(D). 

Assuming that the employee’s father 

was alive, he would receive 5% and the 

employee’s mother would receive 55%. 

If the employee’s mother is the only 

surviving parent, she would receive a 

total of 60 percent of the death gratuity. 

Subsection 10.910(c) explains what 

happens if a person designated as an 

alternate beneficiary under section 

10.908 dies after the death of the 

covered employee but before receiving 

payment of his or her designated 

portion of the death gratuity. If the 

designated alternate beneficiary dies 

after the death of the covered employee 

but before receiving payment, the 

designation will have no effect. 

Pursuant to section 8102a(d)(5), the 

portion designated to be paid to that 

person will be paid according to the 

statutory order of precedence listed in 

section 10.907. 

Subsection 10.910(d) clarifies that if 

there are no living eligible survivors or 

alternate beneficiaries, the death 

gratuity will not be paid. 

Section 10.911 

Section 10.911 explains how the 

death gratuity payment process is 

initiated. Subsection 10.911(a) explains 

that there are two ways to initiate the 

process. The employing agency may 

initiate the death gratuity payment 

process by filing form CA–42, Official 

Notice of Employee’s Death For 

Purposes of FECA Section 8102a Death 

Gratuity, with OWCP, which notifies 

OWCP of the employee’s death. A 

claimant may also initiate the death 

gratuity payment process by filing a 

claim with OWCP to receive the death 

gratuity payment. Regardless of how the 

payment process is initiated, both 

filings must occur for OWCP to pay the 

death gratuity. If the payment process is 

initiated by the employing agency filing 

notification of the employee’s death, 

each claimant must then file a claim 

with OWCP to receive payment of the 

gratuity. Each claimant must file a claim 

so that OWCP has the correct contact 

information for each claimant and proof 

of each claimant’s status as an eligible 

beneficiary of the death gratuity 

payment. Alternatively, if a claimant 

initiates the death gratuity payment 

process by filing a claim, the employing 

agency must then complete the death 

notification form CA–42 and file it with 

OWCP. Additional claimants must also 

complete their own claim forms. 

Subsection 10.911(b) outlines what 

will happen when the employing 

agency files death notification form CA– 

42. First of all, an employing agency 

must notify OWCP immediately upon 

learning of any employee’s death that 

may be eligible for benefits under this 

subpart. With this notification, the 

agency must submit to OWCP any 

designation forms (form CA–40) 

completed by the employee. Finally, the 

agency must also provide to OWCP as 

much information as possible about any 

living survivors or alternate 

beneficiaries of which the agency is 

aware. When OWCP receives all this 

information from the employing agency, 

OWCP will contact any living survivors 

or alternate beneficiaries it is able to 

identify and provide to them the death 

gratuity claim form CA–41, Claim For 

Benefits Under FECA Section 8102a 

Death Gratuity, with information 

explaining how to file a claim. 

Subsection 10.911(c) explains a 

claimant’s responsibilities when filing a 

claim for the death gratuity payment, 

and it states what will happen when 

OWCP receives that claim. A claimant 

may use form CA–41 to file a claim for 

the death gratuity. The claimant must 

provide any information that he or she 

has about any other beneficiaries who 

may be entitled to the death gratuity 

payment, including the Social Security 

Numbers of those other beneficiaries, if 

known, and all known contact 

information. The claimant must also 

disclose the Social Security Number of 

the deceased employee and identify the 

agency that employed the deceased 

employee when he or she incurred the 

injury that caused his or her death, if 

the claimant knows this information. 

Upon receiving the information from the 

claimant, OWCP will contact the 

employing agency to notify it that it 

must complete and submit the death 

notification form CA–42 for the 

employee. OWCP will also contact any 

other living survivors or alternate 

beneficiaries it is able to identify and 

provide to them the death gratuity claim 

form CA–41 with information 

explaining how to file a claim. 

Subsection 10.911(d) explains the 

responsibilities of an employing agency 

if a claimant submits a claim for the 

death gratuity to the agency rather than 

to OWCP. In this instance, the agency 

must promptly transmit the claim to 

OWCP. This includes any claim forms 

CA–41 that the agency receives and any 

other claims or papers submitted to the 

agency which appear to claim 

compensation on account of the 

employee’s death. 


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41622 Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 

Section 10.912 

Section 10.912 describes the 

requirements to establish a claim for the 

death gratuity payment, which are also 

described on claim form CA–41. Just as 

in all claims for compensation under the 

FECA, the claimant bears the burden of 

proof to establish each one of these 

elements. (See, e.g., 20 CFR 10.115.) 

Although the employing agency will 

often provide much of the required 

information when it completes the 

death notification form CA–42, the 

claimant bears the ultimate burden of 

proof. The evidence required in this 

subpart must stand up to the same 

requirements as evidence submitted to 

establish other FECA compensation 

claims: the evidence should be in 

writing, and it must be reliable, 

probative, and substantial. (See id.) 

The first requirement that the 

claimant must establish is that the claim 

for the death gratuity was filed within 

the time limits specified by the FECA, 

as prescribed in 5 U.S.C. 8122 and in 

this part. This will be evaluated exactly 

as it is for all other claims for FECA 

compensation. Subsection 10.912(a) 

clarifies that the timeliness of a death 

gratuity claim will be measured from 

the date the claimant filed a claim, not 

the date the employing agency 

submitted death notification form CA– 

42. 

Subsection 10.912(b) gives the second 

requirement for a death gratuity claim: 

the claimant must establish that the 

deceased employee was in fact an 

employee of the United States or a NAFI 

employee at the time he or she incurred 

the injury or disease that caused his or 

her death. Again, this is the same 

requirement as in all other claims for 

compensation under the FECA. 

Subsection 10.912(c) states that the 

claimant must establish that the 

employee suffered an injury or disease 

and that the employee’s death was 

causally related to that injury or disease. 

Causation will be evaluated as it is in 

other FECA claims. The death certificate 

of the employee must be provided. 

Although the employing agency will 

often provide the death certificate and 

other needed medical documentation, 

OWCP may request from the claimant 

any additional documentation needed to 

establish the claim. 

Subsection 10.912(d) describes the 

requirement that sets the death gratuity 

payment apart from other FECA 

benefits: the claimant must establish 

that the deceased employee incurred the 

fatal injury or disease ‘‘in connection 

with the employee’s service with an 

Armed Force in a contingency 

operation.’’ This is the requirement that 

defines the scope of coverage for the 

death gratuity payment, as stated in the 

text of new section 8102a. Subsection 

10.912(d) explains and defines the terms 

contained in that statutory language. 

Subsection 10.912(d)(1) explains the 

definition of ‘‘contingency operation.’’ 

Section 8102a defines ‘‘contingency 

operation’’ as having ‘‘the meaning 

given to that term in section 1482a(c) of 

Title 10 of the United States Code.’’ 

Section 1482a(c) states, ‘‘The term 

‘contingency operation’ includes 

humanitarian operation, peacekeeping 

operations, and similar operations.’’ 

There is a more narrow definition of 

‘‘contingency operation’’ in section 101 

of Title 10, which is the definitions 

section of Title 10, but Congress chose 

the broader definition of ‘‘contingency 

operation’’ contained in section 

1482a(c) for purposes of the death 

gratuity payment. (DOL notes that 

Congress chose the narrower definition 

of ‘‘contingency operation’’ in section 

585 of the National Defense 

Authorization Act for Fiscal Year 2008.) 

Therefore, subsection 10.912(d)(1) 

explains the definitions of all the 

different types of ‘‘contingency 

operations’’ that are included in section 

1482a(c), including the basic 

‘‘contingency operation,’’ a 

‘‘humanitarian operation,’’ and a 

‘‘peacekeeping operation.’’ The 

definitions of all three of these different 

types of operations are included in the 

definition of ‘‘contingency operation’’ 

for purposes of this subpart. ‘‘Similar 

operations’’ are also included and will 

be determined by OWCP on a case-bycase basis. 

Subsection 10.912(d)(1)(A) quotes the 

definition of ‘‘contingency operation’’ 

from 10 U.S.C. 101(a)(13). The first part 

of this definition of ‘‘contingency 

operation’’ is ‘‘military operation that is 

designated by the Secretary of Defense 

as an operation in which members of 

the Armed Forces are or may become 

involved in military actions, operations, 

or hostilities against an enemy of the 

United States or against an opposing 

military force.’’ The second part of this 

definition includes any military 

operation that results in the call or order 

to active duty of members of the 

uniformed services during a war or 

national emergency declared by the 

President or Congress. The definition 

provides a list of different authorizing 

statutes under which the call to active 

duty may occur, including statutes that 

would apply to military operations that 

would take place within the United 

States. Therefore, a ‘‘contingency 

operation’’ under the definition at 10 

U.S.C. 101(a)(13) may take place either 

within the United States or outside the 

United States. 

Subsection 10.912(d)(1)(B) provides 

the definition of ‘‘humanitarian 

operation’’ and ‘‘peacekeeping 

operation’’ as stated in 10 U.S.C. 

2302(8). A ‘‘humanitarian operation’’ is 

‘‘a military operation in support of the 

provision of humanitarian or foreign 

disaster assistance,’’ and a 

‘‘peacekeeping operation’’ is ‘‘a military 

operation * * * in support of a 

peacekeeping operation under chapter 

VI or VII of the Charter of the United 

Nations.’’ Subsection 10.912(d)(1)(C) 

further defines ‘‘humanitarian 

assistance’’ as the definition provided in 

10 U.S.C. 401(e). 

All of these definitions have been 

quoted directly from Title 10. New 

section 8102a clearly intends the 

definition of ‘‘contingency operation’’ 

for purposes of this death gratuity to 

have the same meaning as the term has 

for the Armed Forces. Therefore, DOL 

adopted the definitions given to all the 

different types of ‘‘contingency 

operations’’ from Title 10, which 

governs the Armed Forces. 

Subsection 10.912(d)(2) clarifies that a 

‘‘contingency operation’’ may take place 

within the United States or abroad. 

Although the Armed Forces rarely 

conduct contingency operations in the 

United States, none of the above 

definitions of ‘‘contingency operation’’ 

exclude that possibility. However, 

subsection 10.912(d)(2) also explains 

that operations of the National Guard 

are only considered ‘‘contingency 

operations’’ for purposes of this subpart 

when the President, the Secretary of the 

Army, or the Secretary of the Air Force 

calls the members of the National Guard 

into service. The National Guard is 

made up of the Army National Guard 

and the Air National Guard, and both 

are reserve components of the Armed 

Forces. (See 10 U.S.C. 101(c).) Members 

of the National Guard can be activated 

by the President, or by the Secretaries of 

the Army or the Air Force. Although 

members of the National Guard can be 

called into service by the Governor of a 

state, these operations of the National 

Guard will not be considered 

‘‘contingency operations’’ under this 

subpart and therefore the death gratuity 

is not applicable to service with the 

National Guard in these Governor-led 

operations. 

Subsection 10.912(d)(3) states that a 

claim for a death gratuity must show 

that the employee incurred the injury or 

disease while in the performance of 

duty as that phrase is defined for the 

purposes of otherwise awarding benefits 

under the FECA. This requirement is 

suggested by the statutory language ‘‘in 


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connection with the employee’s 

service,’’ and it is also consistent with 

the award of other FECA compensation. 

In addition to showing that the 

employee was in the performance of 

duty when he or she incurred injury, a 

claimant must show that the employee’s 

service was related to an Armed Force’s 

contingency operation to qualify for the 

death gratuity. The death gratuity is not 

meant for every employee who dies 

from an injury incurred while in the 

performance of duty. Only those 

employees whose service is related to a 

contingency operation are covered. 

Subsections 10.912(d)(4) and (5) explain 

the evidentiary burden that a claim 

must satisfy to show this relation. 

Subsection 10.912(d)(4) states the 

evidentiary standard for claims 

regarding a fatal injury incurred by an 

employee serving outside the United 

States: if an employee incurs injury 

while in the performance of duty 

serving outside the United States in the 

same region in which an Armed Force 

is conducting a contingency operation, 

OWCP will find that the injury or 

disease satisfies the requirement that it 

was incurred ‘‘in connection with the 

employee’s service with an Armed 

Force in a contingency operation,’’ 

unless there is conclusive evidence that 

the employee’s service was not 

supporting the Armed Force’s operation. 

The subsection also clarifies that OWCP 

considers service in economic or social 

development projects, such as service 

on Provincial Reconstruction Teams, in 

a region in which an Armed Force is 

conducting a contingency operation to 

be supporting the Armed Force’s 

operation. 

The evidentiary burden here 

recognizes that if an employee is serving 

outside the United States in the same 

region in which an Armed Force is 

conducting a contingency operation, the 

employee’s service is apt to be related 

to that contingency operation, because 

the United States governmental 

activities in the region will of necessity 

be closely coordinated with the Armed 

Force’s operation. Additionally, 

activities of covered employees in these 

areas will be seen as relating to the 

ongoing contingency operation by the 

affected populace, and hostilities may 

be directed at the employees because of 

that perception. OWCP also recognizes 

the difficulties involved in accessing 

and providing evidence regarding the 

circumstances of an employee’s service 

in a foreign country. Accordingly, 

OWCP will find that the employee’s 

service in a foreign country is related to 

a contingency operation if the service is 

being performed in the same region as 

that operation, unless OWCP receives 

conclusive evidence to the contrary. 

An illustration for example is as 

follows: a tsunami hits the southern 

portion of Country Q in Southeast Asia, 

causing massive devastation. The 

United States military mobilizes 

members of the Armed Forces in a 

humanitarian operation to provide aid 

to the affected area. An Army helicopter 

dispatched to deliver supplies crashes 

into an aid station on the coast, killing 

two Department of State employees 

working at the military aid station. 

OWCP receives death notification form 

CA–42 describing the employees’ 

deaths, stating that at the time of their 

deaths they were serving as translators 

at the aid station at the site of the 

tsunami. The two Department of State 

employees’ deaths will qualify for the 

death gratuity. An employee of the 

Department of Agriculture was 

vacationing at one of the hotels 

destroyed by the tsunami, and she dies. 

Her death would not qualify for the 

death gratuity because she was not in 

the performance of duty. On the same 

day, the Consul General of the 

Consulate in the far northern part of 

Country Q is killed in a car accident 

while traveling from his office to a 

meeting in the middle of the day. 

Because of the humanitarian operation 

being conducted in southern Country Q, 

the Department of State files form CA– 

42, notifying OWCP of the Consul’s 

death. (All employers must file form 

CA–42 for any employee’s death that 

may be eligible for benefits under this 

subpart. See subsections 10.911(b) and 

10.914(a).) However, on the form, State 

describes the circumstances of the 

Consul’s death, submitting evidence 

that the meeting the Consul was 

attending was regarding data security 

procedures in the Consul’s office. If 

OWCP receives a claim for the death 

gratuity, OWCP will evaluate the 

evidence provided by the Department of 

State and determine whether the 

purpose of the Consul’s meeting had 

any relation to the tsunami contingency 

operation, and determine whether 

northern Country Q is in the same 

region as the operation. If the evidence 

was conclusive that the meeting had no 

relation to the contingency operation, or 

that the scope of the operation was 

strictly limited to southern Country Q, 

OWCP will deny the claim for the death 

gratuity. 

Subsection 10.912(d)(5) explains that 

a claim based on the death of an 

employee who was serving within the 

United States when he or she incurred 

injury must positively establish that the 

employee’s service was supporting a 

contingency operation of an Armed 

Force. The claimant bears a different 

evidentiary burden to show that an 

employee’s service within the United 

States was related to a contingency 

operation of an Armed Force. This is 

because federal employees and NAFI 

employees routinely perform service 

within the United States, and it is not 

reasonable to infer, from their mere 

presence in a covered region while in 

the performance of duty, that their 

service is in support of a domestic 

contingency operation. In the rare event 

that an Armed Force is conducting a 

contingency operation within the 

United States, the claimant must supply 

evidence to show that the employee’s 

service was actually supporting the 

contingency operation rather than 

simply being tangentially related to a 

situation in which an Armed Force was 

somehow involved. 

An illustration follows: the President 

activates a number of National Guard 

troops in Operation Blue, aimed at 

stopping illegal immigration from 

Mexico to the United States. Some of 

the troops are deployed in McAllen, 

Texas. On the fourth day of Operation 

Blue, a mail carrier in McAllen is killed 

in a car accident while delivering mail. 

If the mail carrier’s surviving spouse 

files a claim for the death gratuity, he 

would have to provide evidence to show 

how the mail carrier’s routine duties 

were supporting the National Guard’s 

operation. If the claim did not contain 

evidence that her service was 

supporting the operation, her death 

would not qualify for the death gratuity. 

On the same day, a National Guardsman 

and an employee of the Department of 

Homeland Security are killed in a 

construction accident while in the 

performance of duty building a fence at 

the border. If survivors of the Homeland 

Security employee file a claim for the 

death gratuity, they would need to 

provide evidence that the employee’s 

work was supporting the National 

Guard’s operation. If they provided 

sufficient evidence, OWCP will accept 

the claim. 

Section 10.912(e) states the final 

requirement for a claim for the death 

gratuity: a claimant must establish his or 

her relationship to the deceased 

employee, so that OWCP can determine 

which survivors are eligible to receive 

the death gratuity payment under the 

order of precedence in section 10.907. 

The documentation required is 

described in the instructions to claim 

form CA–41. This requirement is similar 

to the documentation required to 

establish eligibility for FECA death 

benefits under 5 U.S.C. 8133. 


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41624 Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 

Section 10.913 

Section 10.913 contains examples of 

situations that OWCP considers to 

clearly qualify for the death gratuity 

payment. If an employee incurred injury 

while serving under the direction or 

supervision of an official of an Armed 

Force conducting a contingency 

operation, or while riding with members 

of an Armed Force in a vehicle or other 

conveyance deployed to further an 

Armed Force’s objectives in a 

contingency operation, the employee’s 

service is clearly related to the Armed 

Force’s contingency operation. If the 

employee’s death results from injuries 

incurred in either of these situations, 

the death will qualify for the death 

gratuity. This in no way is meant to 

signify that the employee was 

performing a combat mission, an 

entirely different legal and factual 

standard, which could impact benefits 

payable under insurance policies. 

OWCP believes that these examples 

will assist employing agencies and 

claimants in understanding the death 

gratuity payment. However, numerous 

other situations may also qualify for the 

death gratuity payment, which OWCP 

will determine on a case-by-case basis. 

Section 10.914 

The death gratuity payment is an 

unusual extension of the FECA, because 

it only applies to a certain group of 

employees—those employees whose 

deaths result from injuries incurred ‘‘in 

connection with the employee’s service 

with an Armed Force in a contingency 

operation.’’ Because an employing 

agency will have direct access to most 

of the information needed to determine 

whether its employee was injured ‘‘in 

connection with’’ his or her service 

‘‘with an Armed Force in a contingency 

operation,’’ and most claimants will not 

have access to that information, 

employing agencies have significant 

responsibilities in the death gratuity 

claim process. Section 10.914 lists the 

responsibilities of the employing 

agency. 

First, subsection 10.914(a) explains 

that the employing agency must provide 

as much information as possible about 

the circumstances of the employee’s 

injury, especially the employee’s 

assigned duties at the time of the injury. 

An agency fulfills this requirement by 

completely filling out the death 

notification form CA–42 and submitting 

it to OWCP. The agency must also 

complete the form as promptly as 

possible upon learning of an employee’s 

death, so that OWCP can disburse the 

death gratuity payment as soon as 

possible. 

If a claimant submits a claim form 

CA–41 or any other paper appearing to 

claim compensation to the employing 

agency, the agency must promptly 

transmit that claim to OWCP, as stated 

in subsection 10.914(b). 

Subsection 10.914(c) explains an 

essential responsibility of the employing 

agency: the agency must maintain any 

designation forms (forms CA–40) or 

other papers appearing to make 

designations under sections 10.907(c) or 

10.908 in the employee’s official 

personnel file. The forms should be 

signed by the employee and by a 

representative of the agency. The agency 

must transmit any such designations to 

OWCP when it submits the death 

notification form CA–42 to OWCP. 

Subsection 10.914(d) states the 

responsibility of an employing agency 

when a survivor is claiming the death 

gratuity based on his or her status as an 

illegitimate child of a deceased male 

employee. New section 8102a lists four 

different ways an illegitimate child of a 

male decedent can prove that he or she 

is eligible to receive the death gratuity. 

Those have been quoted in section 

10.906(a)(2)(B) of this subpart. One 

method of proving eligibility is for the 

claimant to show that he or she has 

proved ‘‘by evidence satisfactory to the 

employing agency’’ to be a natural child 

of the decedent. Therefore, if OWCP 

cannot determine whether the claimant 

qualifies as a child of the decedent 

according to any of the other three 

methods listed, OWCP may request the 

employing agency to determine whether 

the claimant has provided sufficient 

evidence to show that he or she is a 

child of the decedent. In that situation, 

it is the employing agency’s 

responsibility to evaluate the evidence 

and transmit its determination promptly 

to OWCP. 

Because of the offset provision that is 

discussed in greater detail below in 

section 10.916, an employing agency 

must notify OWCP of any other death 

gratuity payments under any other law 

of the United States for which an 

employee’s death qualifies and any 

other death gratuity payments that have 

been paid based on the employee’s 

death. This responsibility is stated in 

subsection 10.914(e). 

Finally, subsection 10.914(f) clarifies 

that non-appropriated fund 

instrumentalities have the same 

responsibilities under this subpart as 

any other employing agency. 

Section 10.915 

Section 10.915 lists the 

responsibilities of OWCP in the death 

gratuity payment process. At the 

initiation of the process, OWCP will 

prompt the employing agency to submit 

the death notification form CA–42 if the 

agency has not done so, or OWCP will 

identify living potential claimants and 

provide them with claim forms CA–41 

with instructions on how to file a claim 

for the death gratuity payment. OWCP 

will then review all the information 

provided by the claimant and 

employing agency to determine whether 

the claim satisfies all the requirements 

listed in section 10.912. If the 

information is not sufficient to satisfy 

those requirements, OWCP will notify 

the claimant of additional evidence 

needed. The claimant will then be 

allowed at least 30 days to submit 

additional evidence. OWCP may also 

request more information from the 

employing agency. Finally, if the claim 

satisfies all the required elements, 

OWCP will calculate the amount of the 

death gratuity payment and pay the 

beneficiaries as soon as possible after 

accepting the claim. 

Section 10.916 

Section 10.916 explains how OWCP 

will calculate the amount of the death 

gratuity. DOL has determined for 

equitable reasons that every death 

gratuity will be paid in the amount of 

$100,000. Subsection 10.916(a) explains 

that the death gratuity payment for each 

employee death is equal to $100,000 

minus the amount of any death gratuity 

payments that have been paid under any 

other law of the United States based on 

that same death. The Conference Report 

language for section 8102a makes clear 

that Congress intended the offset 

provision in new section 8102a to apply 

only to other death gratuity payments 

and not to other federal benefits such as 

compensation for death under section 

8133 of the FECA, retirement benefits 

under chapter 84 of Title 5, life 

insurance benefits under chapter 87 of 

Title 5, or any other federal benefit. See 

Conference Report for the National 

Defense Authorization Act for Fiscal 

Year 2008, H.R. Rep. No. 110–477, at 

1008–09 (2007). A death gratuity 

payment is a payment in the nature of 

a gift, beyond reimbursement for death 

expenses, relocation costs, or other 

similar death benefits. Subsection 

10.916(a) clarifies that funeral expenses 

under 5 U.S.C. 8134 and the death 

benefits provided to an employee’s 

survivors under 5 U.S.C. 8133 are not 

death gratuity payments, and they 

therefore have no effect on the amount 

of the death gratuity under this subpart. 

Subsection 10.916(b) gives a list of 

examples of death gratuity payments 

that would affect the amount of the 

death gratuity under this subpart. This 

list is not exclusive, but it is meant to 


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Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 41625 

name the most common death gratuity 

statutes for ease of reference and to 

provide examples of those payments 

that would be considered death gratuity 

payments. 

Subsection 10.916(c) clarifies that the 

total amount of the death gratuity 

payment will be calculated before it is 

disbursed to the employee’s various 

survivors or alternate beneficiaries. 

Therefore, after it has accepted a claim 

for the death gratuity, OWCP first 

subtracts the amount of any other death 

gratuities that have already been paid 

based on the same death. After the total 

amount of the death gratuity for the 

particular employee has been 

calculated, OWCP will then disburse the 

payment according to the order of 

precedence and any designations that 

the employee may have completed. 

Subsection 10.916(c) provides three 

examples to illustrate this process. 

IV. Administrative Requirements for 

the Rulemaking 

Executive Order 12866 

This regulatory action constitutes a 

‘‘significant’’ rule within the meaning of 

Executive Order 12866 in that any 

executive agency could be required to 

participate in the development of claims 

for benefits under this regulatory action. 

The Department believes, however, that 

this regulatory action will not have a 

significant economic impact on the 

economy, or any person or organization 

subject to the changes, in that the 

annual amount of benefits paid under 

this section is expected to be 

approximately one million dollars. The 

changes have been reviewed by the 

Office of Management and Budget for 

consistency with the President’s 

priorities and the principles set forth in 

Executive Order 12866. 

Regulatory Flexibility Act of 1980 

This rule has been reviewed in 

accordance with the Regulatory 

Flexibility Act of 1980, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 5 

U.S.C. 601–612. The Department has 

concluded that the rule does not involve 

regulatory and informational 

requirements regarding businesses, 

organizations, and governmental 

jurisdictions subject to regulation. 

Paperwork Reduction Act (PRA) 

The new collections of information 

contained in this rulemaking have been 

submitted to OMB for review in 

accordance with the Paperwork 

Reduction Act of 1995. No person is 

required to respond to a collection of 

information request unless the 

collection of information displays a 

valid OMB control number. The new 

information collection requirements are 

set forth in §§ 10.909, 10.911, 10.912, 

10.914 and 10.915, and they relate to 

information required to be submitted by 

claimants and the employing agencies 

as part of the claims adjudication 

process. To implement these new 

collections, the Department is proposing 

to create three new forms (see sections 

A through C below). 

The Department would like to solicit 

comments to: 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden of the 

collection of information, including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, e.g., permitting 

electronic submission of responses. 

A. Designation of a Recipient of the 

Death Gratuity Payment Under Section 

1105 of Public Law 110–181 (Form CA– 

40) 

Summary: New section 8102a allows 

people covered by that section to 

designate an alternative order of 

payment of the death gratuity amongst 

family members and to designate an 

alternative person to receive no more 

than 50% of the death gratuity payment. 

Form CA–40 provides the means to 

make such designations. Form CA–40 

asks the person covered to provide an 

alternative order of payment, including 

each designee’s address, relationship to 

the person covered, and the percentage 

amount to be given to that designee. 

Form CA–40 also allows the person 

covered the opportunity to designate an 

additional person to receive a 

percentage of the death gratuity, and 

asks the person covered to provide that 

designee’s address and the percentage to 

be given to that designee (up to the 

statutory maximum of 50%). All 

employees who complete this form will 

be required to sign and date this form. 

The form must also be signed by the 

appropriate official of the employing 

establishment to establish a valid 

designation. 

Need: Pursuant to section 8102a, 

which allows for designations, this form 

is necessary for an accurate record of 

such designation, and for an accurate 

payment to the appropriate designees in 

the event of a covered claim. 

Respondents and frequency of 

response: While not every covered 

employee will file such a designation, 

the Department anticipates that those 

employees who are routinely deployed 

in support of a contingency operation 

may file as many as three Form CA–40s 

over the course of their employment. 

According to the report of the 

Subcommittee on Oversight and 

Investigations of the House Armed 

Service Committee, ‘‘Deploying Federal 

Civilians to the Battlefield, April 2008,’’ 

there have been ‘‘nearly 10,000 federal 

civilian employees’’ deployed to Iraq 

and Afghanistan over the past seven 

years, averaging 1,400 annually. 

Utilizing this number, as well as 

considering there will be additional 

federal civilian employees domestically 

and abroad whose agencies may request 

them to complete the designation form, 

the OWCP estimates that 2,600 

designation forms will be filed annually. 

Estimated total annual burden: The 

time required to review instructions, 

search existing data sources, gather the 

data needed, and complete and review 

each Form CA–40 is estimated to take 

an average of 15 minutes per covered 

employee. The Department estimates 

that there will be 2,600 such filings a 

year, for a total annual burden of 650 

hours. 

B. Claim For Benefits Under FECA 

Section 8102a Death Gratuity (Form 

CA–41) 

Summary: The claims adjudication 

process begins with a requirement that 

a claimant file a written claim for 

benefits with the Department on or after 

July 31, 2001. The ‘‘Claim For Benefits 

Under FECA Section 8102a Death 

Gratuity’’ (Form CA–41) is used to 

initiate this process and to insure that 

OWCP has the basic factual information 

necessary to process the claim, 

including the identities of the eligible 

beneficiaries of the covered employee. 

OWCP may also require claimants to 

provide factual information in support 

of any responses made on Form CA–41. 

All claimants will be required to swear 

or affirm that the information provided 

on the Form CA–41 is true. 

Need: Pursuant to section 8102a, a 

claim for benefits is necessary to initiate 

the payment process and to provide the 

information necessary to pay the 

survivors of the covered employee. 

Respondents and frequency of 

response: The Office of Workers’ 


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Compensation Programs (OWCP) has 

been tracking federal civilian injuries 

and deaths resulting from incidents or 

exposures arising in Iraq since March 

2004. Through the end of FY 2008, there 

have been 220 claims accepted for 

injuries or exposures sustained in Iraq. 

Of those 220 accepted claims, 14 have 

been claims arising from the death of 

the Federal civilian employee. 

OWCP also has been tracking Federal 

civilian injuries and deaths resulting 

from incidents or exposures arising in 

Afghanistan, but only since October, 

2007. Through the end of FY 2008, there 

have been 25 claims accepted for 

injuries or exposures sustained in 

Afghanistan and only 1 of those claims 

was for the death of the employee. 

Based upon these data, OWCP 

projects about 10 death claims per year 

as an upper limit estimate. Assuming 

each claim is paid at the maximum 

allowable rate, this would result in 

expenditures of $1 million or less 

annually. It is important to note, 

however, that the projection is based on 

a very limited amount of data and that 

a single significant event could result in 

substantially higher than projected 

expenditures. Accordingly, as it is 

estimated that each claim will have an 

average of 2.5 claimants, it is estimated 

that 25 claimants annually will file one 

Form CA–41 

Estimated total annual burden: The 

time required to review instructions, 

search existing data sources, gather the 

data needed, and complete and review 

each Form CA–41 is estimated to take 

an average of 15 minutes per claimant 

for a total annual burden of 6.25 hours. 

C. Official Notice of Employee’s Death 

for Purposes of FECA Section 8102a 

Death Gratuity (Form CA–42) 

Summary: Section 8102a provides 

that payment under that section is to be 

made immediately upon ‘‘official’’ 

notice of a covered employee’s death. 

Form CA–42 provides the means for the 

employing agency to provide the official 

notice to OWCP. Form CA–42 asks the 

employing agency to provide OWCP the 

necessary information regarding the 

employee’s death. Form CA–42 further 

requires the employing agency to 

provide OWCP with the death certificate 

of that employee. Form CA–42 also 

requires that the employing agency 

certify that the employee was a covered 

employee under Section 8102a and to 

forward information about survivors 

and designated alternate beneficiaries. 

Need: As section 8102a provides that 

payment must be made following 

official notice of the death of a covered 

employee, Form CA–42 is necessary to 

provide the means to submit the official 

notice to OWCP. 

Respondents and frequency of 

response: As discussed above, it is 

estimated that 10 Form CA–42 notices 

will be filed annually. 

Estimated total annual burden: The 

time required to review instructions, 

search existing data sources, gather the 

data needed, and complete and review 

each Form CA–42 is estimated to take 

an average of 20 minutes per form for 

a total annual burden of 3.33 hours. 

The National Environmental Policy Act 

of 1969 

The Department certifies that this rule 

has been assessed in accordance with 

the requirements of the National 

Environmental Policy Act of 1969, 42 

U.S.C. 4321 et seq. (NEPA). The 

Department concludes that NEPA 

requirements do not apply to this 

rulemaking because this rule includes 

no provisions impacting the 

maintenance, preservation, or 

enhancement of a healthful 

environment. 

Federal Regulations and Policies on 

Families 

The Department has reviewed this 

rule in accordance with the 

requirements of section 654 of the 

Treasury and General Government 

Appropriations Act of 1999, 5 U.S.C. 

601 note. These regulations were not 

found to have a potential negative affect 

on family well-being as it is defined 

thereunder. 

Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

The Department certifies that this rule 

has been assessed regarding 

environmental health risks and safety 

risks that may disproportionately affect 

children. These regulations were not 

found to have a potential negative affect 

on the health or safety of children. 

Unfunded Mandates Reform Act of 1995 

and Executive Order 13132 

The Department has reviewed this 

rule in accordance with the 

requirements of Exec. Order No. 13132, 

64 FR 43225 (Aug. 10, 1999), and the 

Unfunded Mandates Reform Act of 

1995, 2 U.S.C. 1501 et seq., and has 

found no potential or substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. As there 

is no Federal mandate contained herein 

that could result in increased 

expenditures by State, local, or tribal 

governments or by the private sector, 

the Department has not prepared a 

budgetary impact statement. 

Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

The Department has reviewed this 

rule in accordance with Exec. Order 

13,175, 65 FR 67249 (Nov. 9, 2000), and 

has determined that it does not have 

‘‘tribal implications.’’ The rule does not 

‘‘have substantial direct effects on one 

or more Indian tribes, on the 

relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’ 

Executive Order 12630: Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

The Department has reviewed this 

rule in accordance with Exec. Order 

12630, 53 FR 8859 (Mar. 15, 1988), and 

has determined that it does not contain 

any ‘‘policies that have takings 

implications’’ in regard to the 

‘‘licensing, permitting, or other 

condition requirements or limitations 

on private property use, or that require 

dedications or exactions from owners of 

private property.’’ 

Executive Order 13211: Energy Supply, 

Distribution, or Use 

The Department has reviewed this 

regulation and has determined that the 

provisions of Exec. Order 13211, 66 FR 

28355 (May 18, 2001), are not applicable 

as there are no direct or implied effects 

on energy supply, distribution, or use. 

The Privacy Act of 1974, 5 U.S.C. 552a, 

as Amended 

While claims filed under section 

8102a of the FECA will be a separate 

claim file and bear a separate claim 

number from any other FECA claim file 

maintained on the covered employee, 

the collection and release of these files 

will be conducted under the provisions 

of the Privacy Act and the published 

systems of record notices for FECA 

claims files. Therefore, the Department 

has determined that this rule will 

require a minor revision of the current 

Privacy Act System of Records, DOL/ 

GOVT–1, Office of Workers’ 

Compensation Programs, Federal 

Employees’ Compensation Act File, 67 

FR 16826 (April 8, 2002). 

Clarity of This Regulation 

Executive Order 12866, 58 Fed. Reg. 

51735 (September 30, 1993), and the 

President’s memorandum of June 1, 


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Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 41627 

1998, require each agency to write all 

rules in plain language. The Department 

invites comments on how to make this 

rule easier to understand. 

List of Subjects in 20 CFR Part 10 

Administrative practice and 

procedure, Claims, Death gratuity, 

Government employees, Labor, Workers’ 

compensation, NAFI. 

■ For the reasons set forth in the 

preamble, 20 CFR part 10 is amended by 

adding subpart J, consisting of §§ 10.900 

through 10.916, to read as follows: 

Subpart J—Death Gratuity 

Sec. 

10.900 What is the death gratuity under this 

subpart? 

10.901 Which employees are covered under 

this subpart? 

10.902 Does every employee’s death due to 

injuries incurred in connection with his 

or her service with an Armed Force in 

a contingency operation qualify for the 

death gratuity? 

10.903 Is the death gratuity payment 

applicable retroactively? 

10.904 Does a death as a result of 

occupational disease qualify for payment 

of the death gratuity? 

10.905 If an employee incurs a covered 

injury in connection with his or her 

service with an Armed Force in a 

contingency operation but does not die 

of the injury until years later, does the 

death qualify for payment of the death 

gratuity? 

10.906 What special statutory definitions 

apply to survivors under this subpart? 

10.907 What order of precedence will 

OWCP use to determine which survivors 

are entitled to receive the death gratuity 

payment under this subpart? 

10.908 Can an employee designate alternate 

beneficiaries to receive a portion of the 

death gratuity payment? 

10.909 How does an employee designate a 

variation in the order or percentage of 

gratuity payable to survivors and how 

does the employee designate alternate 

beneficiaries? 

10.910 What if a person entitled to a 

portion of the death gratuity payment 

dies after the death of the covered 

employee but before receiving his or her 

portion of the death gratuity? 

10.911 How is the death gratuity payment 

process initiated? 

10.912 What is required to establish a claim 

for the death gratuity payment? 

10.913 In what situations will OWCP 

consider that an employee incurred 

injury in connection with his or her 

service with an Armed Force in a 

contingency operation? 

10.914 What are the responsibilities of the 

employing agency in the death gratuity 

payment process? 

10.915 What are the responsibilities of 

OWCP in the death gratuity payment 

process? 

10.916 How is the amount of the death 

gratuity calculated? 

Authority: 5 U.S.C. 8102a. 

Subpart J–Death Gratuity 

§ 10.900 What is the death gratuity under 

this subpart? 

(a) The death gratuity authorized by 5 

U.S.C. 8102a and payable pursuant to 

the provisions of this subpart is a 

payment to a claimant who is an eligible 

survivor (as defined in §§ 10.906 and 

10.907) or a designated alternate 

beneficiary (as defined in §§ 10.908 and 

10.909) of an employee who dies of 

injuries incurred in connection with the 

employee’s service with an Armed 

Force in a contingency operation. This 

payment was authorized by section 

1105 of Public Law 110–181 (2008). For 

the purposes of this subchapter, the 

term ‘‘Armed Force’’ means the Army, 

Navy, Air Force, Marine Corps, and 

Coast Guard. 

(b) This death gratuity payment is a 

FECA benefit, as defined by § 10.5(a) of 

this part. All the provisions and 

definitions in this part apply to claims 

for payment under this subpart unless 

otherwise specified. 

§ 10.901 Which employees are covered 

under this subpart? 

For purposes of this subpart, the term 

‘‘employee’’ means all employees 

defined in 5 U.S.C. 8101 and § 10.5(h) 

of this part and all non-appropriated 

fund instrumentality employees as 

defined in section 1587(a)(1) of title 10 

of the United States Code. 

§ 10.902 Does every employee’s death due 

to injuries incurred in connection with his 

or her service with an Armed Force in a 

contingency operation qualify for the death 

gratuity? 

Yes. All such deaths that occur on or 

after January 28, 2008 (the date of 

enactment of Public Law 110–181 

(2008)) qualify for the death gratuity 

administered by this subpart. 

§ 10.903 Is the death gratuity payment 

applicable retroactively? 

An employee’s death qualifies for the 

death gratuity if the employee died on 

or after October 7, 2001, and before 

January 28, 2008, if the death was a 

result of injuries incurred in connection 

with the employee’s service with an 

Armed Force in the theater of operations 

of Operation Enduring Freedom or 

Operation Iraqi Freedom. 

§ 10.904 Does a death as a result of 

occupational disease qualify for payment of 

the death gratuity? 

Yes—throughout this subpart, the 

word ‘‘injury’’ is defined as it is in 5 

U.S.C. 8101(5), which includes a disease 

proximately caused by employment. If 

an employee’s death results from an 

occupational disease incurred in 

connection with the employee’s service 

in a contingency operation, the death 

qualifies for payment of the death 

gratuity under this subpart. 

§ 10.905 If an employee incurs a covered 

injury in connection with his or her service 

with an Armed Force in a contingency 

operation but does not die of the injury until 

years later, does the death qualify for 

payment of the death gratuity? 

Yes—as long as the employee’s death 

is a result of injuries incurred in 

connection with the employee’s service 

with an Armed Force in a contingency 

operation, the death qualifies for the 

death gratuity of this subpart regardless 

of how long after the injury the 

employee’s death occurs. 

§ 10.906 What special statutory definitions 

apply to survivors under this subpart? 

For the purposes of paying the death 

gratuity to eligible survivors under this 

subpart, OWCP will use the following 

definitions: 

(a) ‘‘Surviving spouse’’ means the 

person who was legally married to the 

deceased employee at the time of his or 

her death. 

(b) ‘‘Children’’ means, without regard 

to age or marital status, the deceased 

employee’s natural children and 

adopted children. It also includes any 

stepchildren who were a part of the 

decedent’s household at the time of 

death. 

(1) A stepchild will be considered 

part of the decedent’s household if the 

decedent and the stepchild share the 

same principal place of abode in the 

year prior to the decedent’s death. The 

decedent and stepchild will be 

considered as part of the same 

household notwithstanding temporary 

absences due to special circumstances 

such as illness, education, business 

travel, vacation travel, military service, 

or a written custody agreement under 

which the stepchild is absent from the 

employee’s household for less than 180 

days of the year. 

(2) A natural child who is an 

illegitimate child of a male decedent is 

included in the definition of ‘‘children’’ 

under this subpart if: 

(i) The child has been acknowledged 

in writing signed by the decedent; 

(ii) The child has been judicially 

determined, before the decedent’s death, 

to be his child; 

(iii) The child has been otherwise 

proved, by evidence satisfactory to the 

employing agency, to be the decedent’s 

child; or 

(iv) The decedent had been judicially 

ordered to contribute to the child’s 

support. 

(c) ‘‘Parent’’ or ‘‘parents’’ mean the 

deceased employee’s natural father and 


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mother or father and mother through 

adoption. It also includes persons who 

stood in loco parentis to the decedent 

for a period of not less than one year at 

any time before the decedent became an 

employee. 

(1) A person stood in loco parentis 

when the person assumed the status of 

parent toward the deceased employee. 

(Any person who takes a child of 

another into his or her home and treats 

the child as a member of his her family, 

providing parental supervision, support, 

and education as if the child were his 

or her own child, will be considered to 

stand in loco parentis.) 

(2) Only one father and one mother, 

or their counterparts in loco parentis, 

may be recognized in any case. 

(3) Preference will be given to those 

who exercised a parental relationship 

on the date, or most nearly before the 

date, on which the decedent became an 

employee. 

(d) ‘‘Brother’’ and ‘‘sister’’ mean any 

person, without regard to age or marital 

status, who is a natural brother or sister 

of the decedent, a half-brother or halfsister, or a brother or sister through 

adoption. Step-brothers or step-sisters of 

the decedent are not considered a 

‘‘brother’’ or a ‘‘sister.’’ 

§ 10.907 What order of precedence will 

OWCP use to determine which survivors 

are entitled to receive the death gratuity 

payment under this subpart? 

If OWCP determines that an 

employee’s death qualifies for the death 

gratuity, the FECA provides that the 

death gratuity payment will be 

disbursed to the living survivor(s) 

highest on the following list: 

(a) The employee’s surviving spouse. 

(b) The employee’s children, in equal 

shares. 

(c) The employee’s parents, brothers, 

and sisters, or any combination of them, 

if designated by the employee pursuant 

to the designation procedures in 

§ 10.909. 

(d) The employee’s parents, in equal 

shares. 

(e) The employee’s brothers and 

sisters, in equal shares. 

§ 10.908 Can an employee designate 

alternate beneficiaries to receive a portion 

of the death gratuity payment? 

An employee may designate another 

person or persons to receive not more 

than 50 percent of the death gratuity 

payment pursuant to the designation 

procedures in § 10.909. Only living 

persons, rather than trusts, corporations 

or other legal entities, may be 

designated under this subsection. The 

balance of the death gratuity will be 

paid according to the order of 

precedence described in § 10.907. 

§ 10.909 How does an employee designate 

a variation in the order or percentage of 

gratuity payable to survivors and how does 

the employee designate alternate 

beneficiaries? 

(a) Form CA–40 must be used to make 

a variation in the order or percentages 

of survivors under § 10.907 and/or to 

make an alternate beneficiary 

designation under § 10.908. A 

designation may be made at any time 

before the employee’s death, regardless 

of the time of injury. The form will not 

be valid unless it is signed by the 

employee and received and signed prior 

to the death of the employee by the 

supervisor of the employee or by 

another official of the employing agency 

authorized to do so. 

(b) Alternatively, any paper executed 

prior to the effective date of this 

regulation that specifies an alternate 

beneficiary of the death gratuity 

payment will serve as a valid 

designation if it is in writing, completed 

before the employee’s death, signed by 

the employee, and signed prior to the 

death of the employee by the supervisor 

of the employee or by another official of 

the employing agency authorized to do 

so. 

(c) If an employee makes a survivor 

designation under § 10.907(c), but does 

not designate the portions to be received 

by each designated survivor, the death 

gratuity will be disbursed to the 

survivors in equal shares. 

(d) An alternate beneficiary 

designation made under § 10.908 must 

indicate the percentage of the death 

gratuity, in 10 percent increments up to 

the maximum of 50 percent, that the 

designated person(s) will receive. No 

more than five alternate beneficiaries 

may be designated. If the designation 

fails to indicate the percentage to be 

paid to an alternate beneficiary, the 

designation to that person will be 

invalid. 

§ 10.910 What if a person entitled to a 

portion of the death gratuity payment dies 

after the death of the covered employee but 

before receiving his or her portion of the 

death gratuity? 

(a) If a person entitled to all or a 

portion of the death gratuity due to the 

order of precedence for survivors in 

§ 10.907 dies after the death of the 

covered employee but before the person 

receives the death gratuity, the portion 

will be paid to the living survivors 

otherwise eligible according to the order 

of precedence prescribed in that 

subsection. 

(b) If a survivor designated under the 

survivor designation provision in 

§ 10.907(c) dies after the death of the 

covered employee but before receiving 

his or her portion of the death gratuity, 

the survivor’s designated portion will be 

paid to the next living survivors 

according to the order of precedence. 

(c) If a person designated as an 

alternate beneficiary under § 10.908 dies 

after the death of the covered employee 

but before the person receives his or her 

designated portion of the death gratuity, 

the designation to that person will have 

no effect. The portion designated to that 

person will be paid according to the 

order of precedence prescribed in 

§ 10.907. 

(d) If there are no living survivors or 

alternate beneficiaries, the death 

gratuity will not be paid. 

§ 10.911 How is the death gratuity 

payment process initiated? 

(a) Either the employing agency or a 

living claimant (survivor or alternate 

beneficiary) may initiate the death 

gratuity payment process. If the death 

gratuity payment process is initiated by 

the employing agency notifying OWCP 

of the employee’s death, each claimant 

must file a claim with OWCP in order 

to receive payment of the death gratuity. 

The legal representative or guardian of 

any minor child may file on the child’s 

behalf. Alternatively, if a claimant 

initiates the death gratuity payment 

process by filing a claim, the employing 

agency must complete a death 

notification form and submit it to 

OWCP. Other claimants must also file a 

claim for their portion of the death 

gratuity. 

(b) The employing agency must notify 

OWCP immediately upon learning of an 

employee’s death that may be eligible 

for benefits under this subpart, by 

submitting form CA–42 to OWCP. The 

agency must also submit to OWCP any 

designation forms completed by the 

employee, and the agency must provide 

as much information as possible about 

any living survivors or alternate 

beneficiaries of which the agency is 

aware. 

(1) OWCP will then contact any living 

survivor(s) or alternate beneficiary(ies) 

it is able to identify. 

(2) OWCP will furnish claim form 

CA–41 to any identified survivor(s) or 

alternate beneficiary(ies) and OWCP 

will provide information to them 

explaining how to file a claim for the 

death gratuity. 

(c) Alternatively, any claimant may 

file a claim for death gratuity benefits 

with OWCP. Form CA–41 may be used 

for this purpose. The claimant will be 

required to provide any information that 

he or she has regarding any other 

beneficiaries who may be entitled to the 

death gratuity payment. The claimant 

must disclose, in addition to the Social 

Security number (SSN) of the deceased 


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Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 41629 

employee, the SSNs (if known) and all 

known contact information of all other 

possible claimants who may be eligible 

to receive the death gratuity payment. 

The claimant must also identify, if 

known, the agency that employed the 

deceased employee when he or she 

incurred the injury that caused his or 

her death. OWCP will then contact the 

employing agency and notify the agency 

that it must complete and submit form 

CA–42 for the employee. OWCP will 

also contact any other living survivor(s) 

or alternate beneficiary(ies) it is able to 

identify, furnish to them claim form 

CA–41, and provide information 

explaining how to file a claim for the 

death gratuity. 

(d) If a claimant submits a claim for 

the death gratuity to an employing 

agency, the agency must promptly 

transmit the claim to OWCP. This 

includes both claim forms CA–41 and 

any other claim or paper submitted 

which appears to claim compensation 

on account of the employee’s death. 

§ 10.912 What is required to establish a 

claim for the death gratuity payment? 

Claim form CA–41 describes the basic 

requirements. Much of the required 

information will be provided by the 

employing agency when it completes 

notification form CA–42. However, the 

claimant bears the burden of proof to 

ensure that OWCP has the evidence 

needed to establish the claim. OWCP 

may send any request for additional 

evidence to the claimant and to his or 

her representative, if any. Evidence 

should be submitted in writing. The 

evidence submitted must be reliable, 

probative, and substantial. Each claim 

for the death gratuity must establish the 

following before OWCP can pay the 

gratuity: 

(a) That the claim was filed within the 

time limits specified by the FECA, as 

prescribed in 5 U.S.C. 8122 and this 

part. Timeliness is based on the date 

that the claimant filed the claim for the 

death gratuity under § 10.911, not the 

date the employing agency submitted 

form CA–42. 

(b) That the injured person, at the 

time he or she incurred the injury or 

disease, was an employee of the United 

States as defined in 5 U.S.C. 8101(1) and 

§ 10.5(h) of this part, or a nonappropriated fund instrumentality 

employee, as defined in 10 U.S.C. 

1587(a)(1). 

(c) That the injury or disease occurred 

and that the employee’s death was 

causally related to that injury or disease. 

The death certificate of the employee 

must be provided. Often, the employing 

agency will provide the death certificate 

and any needed medical 

documentation. OWCP may request 

from the claimant any additional 

documentation that may be needed to 

establish the claim. 

(d) That the employee incurred the 

injury or disease in connection with the 

employee’s service with an Armed 

Force in a contingency operation. This 

will be determined from evidence 

provided by the employing agency or 

otherwise obtained by OWCP and from 

any evidence provided by the claimant. 

(1) Section 8102a defines 

‘‘contingency operation’’ to include 

humanitarian operations, peacekeeping 

operations, and similar operations. 

(‘‘Similar operations’’ will be 

determined by OWCP.) 

(i) A ‘‘contingency operation’’ is 

defined by 10 U.S.C. 101(a)(13) as a 

military operation that— 

(A) Is designated by the Secretary of 

Defense as an operation in which 

members of the Armed Forces are or 

may become involved in military 

actions, operations, or hostilities against 

an enemy of the United States or against 

an opposing military force; or 

(B) Results in the call or order to, or 

retention on, active duty of members of 

the uniformed services under section 

688, 12301(a), 12302, 12304, 12305, or 

12406 of [Title 10], chapter 15 of [Title 

10], or any other provision of law during 

a war or during a national emergency 

declared by the President or Congress. 

(ii) A ‘‘humanitarian or peacekeeping 

operation’’ is defined by 10 U.S.C. 

2302(8) as a military operation in 

support of the provision of 

humanitarian or foreign disaster 

assistance or in support of a 

peacekeeping operation under chapter 

VI or VII of the Charter of the United 

Nations. The term does not include 

routine training, force rotation, or 

stationing. 

(iii) ‘‘Humanitarian assistance’’ is 

defined by 10 U.S.C. 401(e) to mean 

medical, surgical, dental, and veterinary 

care provided in areas of a country that 

are rural or are underserved by medical, 

surgical, dental, and veterinary 

professionals, respectively, including 

education, training, and technical 

assistance related to the care provided; 

construction of rudimentary surface 

transportation systems; well drilling and 

construction of basic sanitation 

facilities; rudimentary construction and 

repair of public facilities. 

(2) A contingency operation may take 

place within the United States or 

abroad. However, operations of the 

National Guard are only considered 

‘‘contingency operations’’ for purposes 

of this subpart when the President, 

Secretary of the Army, or Secretary of 

the Air Force calls the members of the 

National Guard into service. A 

‘‘contingency operation’’ does not 

include operations of the National 

Guard when called into service by a 

Governor of a State. 

(3) To show that the injury or disease 

was incurred ‘‘in connection with’’ the 

employee’s service with an Armed 

Force in a contingency operation, the 

claim must show that the employee 

incurred the injury or disease while in 

the performance of duty as that phrase 

is defined for the purposes of otherwise 

awarding benefits under FECA. 

(4) (i) When the contingency 

operation occurs outside of the United 

States, OWCP will find that an 

employee’s injury or disease was 

incurred ‘‘in connection with’’ the 

employee’s service with an Armed 

Force in a contingency operation if the 

employee incurred the injury or disease 

while performing assignments in the 

same region as the operation, unless 

there is conclusive evidence that the 

employee’s service was not supporting 

the Armed Force’s operation. 

(ii) Economic or social development 

projects, including service on Provincial 

Reconstruction Teams, undertaken by 

covered employees in regions where an 

Armed Force is engaged in a 

contingency operation will be 

considered to be supporting the Armed 

Force’s operation. 

(5) To show that an employee’s injury 

or disease was incurred ‘‘in connection 

with’’ the employee’s service with an 

Armed Force in a contingency 

operation, the claimant will be required 

to establish that the employee’s service 

was supporting the Armed Force’s 

operation. The death gratuity does not 

cover federal employees who are 

performing service within the United 

States that is not supporting activity 

being performed by an Armed Force. 

(e) The claimant must establish his or 

her relationship to the deceased 

employee so that OWCP can determine 

whether the claimant is the survivor 

entitled to receive the death gratuity 

payment according to the order of 

precedence prescribed in § 10.907. 

§ 10.913 In what situations will OWCP 

consider that an employee incurred injury 

in connection with his or her service with 

an Armed Force in a contingency 

operation? 

(a) OWCP will consider that an 

employee incurred injury in connection 

with service with an Armed Force in a 

contingency operation if: 

(1) The employee incurred injury 

while serving under the direction or 

supervision of an official of an Armed 

Force conducting a contingency 

operation; or 


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41630 Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 

(2) The employee incurred injury 

while riding with members of an Armed 

Force in a vehicle or other conveyance 

deployed to further an Armed Force’s 

objectives in a contingency operation. 

(b) An employee may incur injury in 

connection with service with an Armed 

Force in a contingency operation in 

situations other than those listed above. 

Additional situations will be 

determined by OWCP on a case-by-case 

basis. 

§ 10.914 What are the responsibilities of 

the employing agency in the death gratuity 

payment process? 

Because some of the information 

needed to establish a claim under this 

subpart will not be readily available to 

the claimants, the employing agency of 

the deceased employee has significant 

responsibilities in the death gratuity 

claim process. These responsibilities are 

as follows: 

(a) The agency must completely fill 

out form CA–42 immediately upon 

learning of an employee’s death that 

may be eligible for benefits under this 

subpart. The agency must complete 

form CA–42 as promptly as possible if 

notified by OWCP that a survivor filed 

a claim based on the employee’s death. 

The agency should provide as much 

information as possible regarding the 

circumstances of the employee’s injury 

and his or her assigned duties at the 

time of the injury, so that OWCP can 

determine whether the injury was 

incurred in the performance of duty and 

whether the employee was performing 

service in connection with an Armed 

Force in a contingency operation at the 

time. 

(b) The employing agency must 

promptly transmit any form CA–41’s 

received from claimants to OWCP. The 

employer must also promptly transmit 

to OWCP any other claim or paper 

submitted that appears to claim 

compensation on account of the 

employee’s death. 

(c) The employing agency must 

maintain any designations completed by 

the employee and signed by a 

representative of the agency in the 

employee’s official personnel file or a 

related system of records. The agency 

must forward any such forms to OWCP 

if the agency submits form CA–42 

notifying OWCP of the employee’s 

death. The agency must also forward 

any other paper signed by the employee 

and employing agency that appears to 

make designations of the death gratuity. 

(d) If requested by OWCP, the 

employing agency must determine 

whether a survivor, who is claiming the 

death gratuity based on his or her status 

as an illegitimate child of a deceased 

male employee, has offered satisfactory 

evidence to show that he or she is in fact 

the employee’s child. 

(e) The employing agency must notify 

OWCP of any other death gratuity 

payments under any other law of the 

United States for which the employee’s 

death qualifies. The employing agency 

also must notify OWCP of any other 

death gratuity payments that have been 

paid based on the employee’s death. 

(f) Non-appropriated fund 

instrumentalities must fulfill the same 

requirements under this subpart as any 

other employing agency. 

§ 10.915 What are the responsibilities of 

OWCP in the death gratuity payment 

process? 

(a) If the death gratuity payment 

process is initiated by the employing 

agency’s submission of form CA–42, 

OWCP will identify living potential 

claimants. OWCP will make a 

reasonable effort to provide claim form 

CA–41’s to any known potential 

claimants and provide instructions on 

how to file a claim for the death gratuity 

payment. 

(b) If the death gratuity payment 

process is initiated by a claimant’s 

submission of a claim, OWCP will 

contact the employing agency and 

prompt it to submit form CA–42. OWCP 

will then review the information 

provided by both the claim and form 

CA–42, and OWCP will attempt to 

identify all living survivors or alternate 

beneficiaries who may be eligible for 

payment of the gratuity. 

(c) If OWCP determines that the 

evidence is not sufficient to meet the 

claimant’s burden of proof, OWCP will 

notify the claimant of the additional 

evidence needed. The claimant will be 

allowed at least 30 days to submit the 

additional evidence required. OWCP 

may also request additional information 

from the employing agency. 

(d) OWCP will review the information 

provided by the claimant and 

information provided by the employing 

agency to determine whether the claim 

satisfies all the requirements listed in 

§ 10.912. 

(e) OWCP will calculate the amount of 

the death gratuity payment and pay the 

beneficiaries as soon as possible after 

accepting the claim. 

§ 10.916 How is the amount of the death 

gratuity calculated? 

The death gratuity payment under 

this subpart equals $100,000 minus the 

amount of any death gratuity payments 

that have been paid under any other law 

of the United States based on the same 

death. A death gratuity payment is a 

payment in the nature of a gift, beyond 

reimbursement for death and funeral 

expenses, relocation costs, or other 

similar death benefits. Only other death 

gratuity payments will reduce the 

amount of the death gratuity provided 

in this subpart. For this reason, death 

benefits provided to the same 

employee’s survivors such as those 

under 5 U.S.C. 8133 as well as benefits 

paid under 5 U.S.C. 8134 are not death 

gratuity payments, and therefore have 

no effect on the amount of the death 

gratuity provided under this subpart. 

(a) A payment provided under section 

413 of the Foreign Service Act of 1980 

(22 U.S.C. 3973), is a death gratuity 

payment, and if a deceased employee’s 

survivors received that payment for the 

employee’s death, the amount of the 

death gratuity paid to the survivors 

under this subpart would be reduced by 

the amount of the Foreign Service Act 

death gratuity. Other death gratuities 

that would affect the calculation of the 

amount payable include but are not 

limited to: the gratuity provision in 

section 1603 of the Emergency 

Supplemental Appropriations Act for 

Defense, the Global War on Terror, and 

Hurricane Recovery, 2006 (Pub. L. 109– 

234, June 15, 2006); the $10,000 death 

gratuity to the personal representative of 

civilian employees, at Title VI, Section 

651 of the Omnibus Consolidated 

Appropriations Act of 1996 (Pub. L. 

104–208, September 30, 1996); the death 

gratuity for members of the Armed 

Forces or any employee of the 

Department of Defense dying outside 

the United States while assigned to 

intelligence duties, at 10 U.S.C. 1489; 

and the death gratuity for employees of 

the Central Intelligence Agency, at 50 

U.S.C. 403k. 

(b) The amount of the death gratuity 

under this section will be calculated 

before it is disbursed to the employee’s 

survivors or alternate beneficiaries, by 

taking into account any death gratuities 

paid by the time of disbursement. 

Therefore, any designations made by the 

employee under § 10.909 are only 

applicable to the amount of the death 

gratuity as described in paragraph (a) of 

this section. The following examples are 

intended to provide guidance in this 

administration of this subpart. 

(1) Example One. An employee’s 

survivors are entitled to the Foreign 

Service Act death gratuity; the 

employee’s spouse received payment in 

the amount of $80,000 under that Act. 

A death gratuity is also payable under 

FECA; the amount of the FECA death 

gratuity that is payable is a total of 

$20,000. That employee, using Form 

CA–40 had designated 50% of the death 

gratuity under this subpart to be paid to 

his neighbor John Smith who is still 


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Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Rules and Regulations 41631 

living. So, 50% of the death gratuity 

will be paid to his spouse and the 

remaining 50% of the death gratuity 

paid under this subpart would be paid 

to John Smith. This means the surviving 

spouse will receive $10,000 and John 

Smith will receive $10,000. 

(2) Example Two. Employee dies in 

circumstances that would qualify her for 

payment of the gratuity under this 

subpart; her agency has paid the 

$10,000 death gratuity pursuant to 

Public Law 104–208. The employee had 

not completed any designation form. 

The FECA death gratuity is reduced by 

the $10,000 death gratuity and 

employee’s spouse receives $90,000. 

(3) Example Three. An employee of 

the Foreign Service whose annual salary 

is $75,000 dies in circumstances that 

would qualify for payment of both the 

Foreign Service Act death gratuity and 

the death gratuity under this subpart. 

Before his death, the employee 

designated that 40% of the death 

gratuity under this subpart be paid to 

his cousin Jane Smith, pursuant to the 

alternate beneficiary designation 

provision at section 10.908 and that 

10% be paid to his uncle John Doe who 

has since died. At the time of his death, 

the employee had no surviving spouse, 

children, parents, or siblings. Therefore, 

the Foreign Service Act death gratuity 

will not be paid, because no eligible 

survivors according to the Foreign 

Service Act provision exist. The death 

gratuity under this subpart would equal 

$100,000, because no other death 

gratuity has been paid, and Jane would 

receive $40,000 according to the 

employee’s designation. As John Doe is 

deceased, no death gratuity may be paid 

pursuant to the designation of a share of 

the death gratuity to him. 

Signed at Washington, DC, this 29th day of 

July 2009. 

Shelby S. Hallmark, 

Acting Assistant Secretary for Employment 

Standards Administration. 

[FR Doc. E9–18523 Filed 8–17–09; 8:45 am] 

BILLING CODE 4510–CF–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 558 

[Docket No. FDA–2009–N–0665] 

New Animal Drugs for Use in Animal 

Feeds; Semduramicin; Virginiamycin 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Final rule. 

SUMMARY: The Food and Drug 

Administration (FDA) is amending the 

animal drug regulations to reflect 

approval of an original new animal drug 

application (NADA) filed by Phibro 

Animal Health. The NADA provides for 

use of single-ingredient Type A 

medicated articles containing 

semduramyicin (as semduramicin 

sodium biomass) and virginiamycin to 

manufacture 2-way combination drug 

Type C medicated feeds for use in 

broiler chickens. 

DATES: This rule is effective August 18, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Timothy Schell, Center for Veterinary 

Medicine (HFV–128), Food and Drug 

Administration, 7500 Standish Pl., 

Rockville, MD 20855, 240–276–8116, email: timothy.schell@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: Phibro 

Animal Health, 65 Challenger Rd., 3d 

floor, Ridgefield Park, NJ 07660, filed 

NADA 141–289 that provides for the use 

of AVIAX II (semduramicin sodium 

biomass) and STAFAC (virginiamycin) 

Type A medicated articles to 

manufacture 2-way combination drug 

Type C medicated feeds for broiler 

chickens. The NADA is approved as of 

July 13, 2009, and the regulations are 

amended in 21 CFR 558.555 to reflect 

the approval. 

In accordance with the freedom of 

information provisions of 21 CFR part 

20 and 21 CFR 514.11(e)(2)(ii), a 

summary of safety and effectiveness 

data and information submitted to 

support approval of this application 

may be seen in the Division of Dockets 

Management (HFA–305), Food and Drug 

Administration, 5630 Fishers Lane, rm. 

1061, Rockville, MD 20852, between 9 

a.m. and 4 p.m., Monday through 

Friday. 

The agency has determined under 21 

CFR 25.33 that this action is of a type 

that does not individually or 

cumulatively have a significant effect on 

the human environment. Therefore, 

neither an environmental assessment 

nor an environmental impact statement 

is required. 

This rule does not meet the definition 

of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because 

it is a rule of ‘‘particular applicability.’’ 

Therefore, it is not subject to the 

congressional review requirements in 5 

U.S.C. 801–808. 

List of Subjects in 21 CFR Part 558 

Animal drugs, Animal feeds. 

■ Therefore, under the Federal Food, 

Drug, and Cosmetic Act and under 

authority delegated to the Commissioner 

of Food and Drugs and redelegated to 

the Center for Veterinary Medicine, 21 

CFR part 558 is amended as follows: 

PART 558—NEW ANIMAL DRUGS FOR 

USE IN ANIMAL FEEDS 

■ 1. The authority citation for 21 CFR 

part 558 continues to read as follows: 

Authority: 21 U.S.C. 360b, 371. 

■ 2. In § 558.555, add paragraphs (e)(2) 

through (e)(4) to read as follows: 

§ 558.555 Semduramicin. 

* * * * * 

(e) * * * 

Semduramicin in grams 

per ton 

Combination in grams per 

ton Indications for use Limitations Sponsor 

* * * * * * * 

(2) 22.7 Virginiamycin 5 Broiler chickens: As in paragraph 

(e)(1) of this section; for increased rate of weight gain and 

improved feed efficiency. 

Feed continuously as sole ration. 

Withdraw 1 day before slaughter. Do not feed to laying hens. 

Virginiamycin provided by No. 

066104 in § 510.600(c) of this 

chapter. 

066104 


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