[Federal Register Volume 74, Number 158 (Tuesday, August 18, 2009)]
[Rules and Regulations]
[Pages 41617-41631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18523]


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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.

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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 non-appropriated 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.

[[Page 41618]]

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, pre-adoption 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

[[Page 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''

[[Page 41620]]

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 
long-standing 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

[[Page 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.

[[Page 41622]]

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-by-case 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

[[Page 41623]]

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.

[[Page 41624]]

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

[[Page 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 Sec. Sec.  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'

[[Page 41626]]

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,

[[Page 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.

0
For the reasons set forth in the preamble, 20 CFR part 10 is amended by 
adding subpart J, consisting of Sec. Sec.  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


Sec.  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 Sec. Sec.  10.906 and 
10.907) or a designated alternate beneficiary (as defined in Sec. Sec.  
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 
Sec.  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.


Sec.  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 Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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

[[Page 41628]]

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 half-sister, or a brother or sister through 
adoption. Step-brothers or step-sisters of the decedent are not 
considered a ``brother'' or a ``sister.''


Sec.  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 Sec.  10.909.
    (d) The employee's parents, in equal shares.
    (e) The employee's brothers and sisters, in equal shares.


Sec.  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 Sec.  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 Sec.  10.907.


Sec.  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 Sec.  10.907 and/or to make an alternate 
beneficiary designation under Sec.  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 Sec.  
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 Sec.  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.


Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  10.907.
    (d) If there are no living survivors or alternate beneficiaries, 
the death gratuity will not be paid.


Sec.  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

[[Page 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.


Sec.  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 Sec.  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 Sec.  10.5(h) of this part, or a non-appropriated 
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 Sec.  10.907.


Sec.  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

[[Page 41630]]

    (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.


Sec.  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.


Sec.  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 Sec.  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.


Sec.  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 Sec.  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

[[Page 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