I 

110TH CONGRESS 

1ST SESSION H. R. 268 

To amend the Energy Employees Occupational Illness Compensation Program 

Act of 2000 to clarify the roles and responsibilities of the agencies 

and actors responsible for the administration of such compensation program, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 5, 2007 

Ms. JACKSON-LEE of Texas introduced the following bill; which was referred 

to the Committee on the Judiciary, and in addition to the Committee on 

Education and Labor, for a period to be subsequently determined by the 

Speaker, in each case for consideration of such provisions as fall within 

the jurisdiction of the committee concerned 

A BILL 

To amend the Energy Employees Occupational Illness Compensation Program Act of 2000 to clarify the roles and 

responsibilities of the agencies and actors responsible 

for the administration of such compensation program, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; REFERENCES; EFFECTIVE DATE. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Energy Employees Occupational Illness Compensation 

6 Program Improvement Act of 2007’’. 


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1 (b) REFERENCES.—Except as otherwise expressly 

2 provided, whenever in this Act an amendment or repeal 

3 is expressed in terms of an amendment to, or repeal of, 

4 a section or other provision, the reference shall be consid5 ered to be made to a section or other provision of the En6 ergy Employees Occupational Illness Compensation Pro7 gram Act of 2000 (42 U.S.C. 7384 et seq.). 

8 (c) EFFECTIVE DATE.—Except as otherwise ex9 pressly provided, this Act and the amendments made by 

10 this Act shall take effect 30 days after the date of the 

11 enactment of this Act. 

12 SEC. 2. FINDINGS. 

13 The Congress finds as follows: 

14 (1) The Energy Employees Occupational Illness 

15 Compensation Program Act of 2000 (42 U.S.C. 

16 7384 et seq.) (referred to in this Act as the 

17 ‘‘EEOICPA’’) was intended to— 

18 (A) ensure the payment of ‘‘timely, uni19 form, adequate compensation’’ to covered em20 ployees (and, where applicable, survivors of 

21 such employees) for occupational illnesses in22 curred by such employees in the performance of 

23 duty for the Department of Energy and certain 

24 of its contractors, subcontractors, and vendors; 

25 and 


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1 (B) provide parity for uranium miners 

2 under the Radiation Exposure Compensation 

3 Act (42 U.S.C. 2210 note). 

4 (2) Four Federal agencies (the Departments of 

5 Labor, Health and Human Services, Energy, and 

6 Justice), are assigned responsibilities under the 

7 EEOICPA pursuant to Executive Order 13179, 

8 ‘‘Providing Compensation to America’s Nuclear 

9 Weapons Workers’’ (December 7, 2000; 65 Fed. 

10 Reg. 77487). 

11 (3) The Department of Labor began accepting 

12 claims under Subtitle B of the EEOICPA on July 

13 31, 2001. 

14 (4) The Department of Health and Human 

15 Services (HHS), through the National Institute for 

16 Occupational Safety and Health (NIOSH), performs 

17 radiation dose reconstruction for cancer claims 

18 under the EEOICPA. 

19 (5) Atomic workers served the Nation and im20 proved national defense by building and testing nu21 clear weapons, while putting their health in jeopardy 

22 from exposure to radiation, beryllium, and other 

23 toxic substances. Claims for radiation-related can24 cers depend on credible and complete radiation 

25 records. Because the radiation exposure of some 


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1 workers was unmonitored, and in certain cir2 cumstances it is not feasible to estimate radiation 

3 dose with sufficient accuracy, Congress provided 

4 that workers may petition to be members of the Spe5 cial Exposure Cohort (SEC). Members of the SEC 

6 receive an automatic presumption that their cancer 

7 is the result of occupational exposure to ionizing ra8 diation. Twenty-two cancers are covered under this 

9 presumption. Under subtitle B of the EEOICPA, 

10 covered claimants receive a $150,000 lump sum ben11 efit plus prospective medical costs. 

12 (6) Executive Order 13179 directs the Sec13 retary of Health and Human Services to promulgate 

14 regulations for establishing membership in the Spe15 cial Exposure Cohort, and to consider and issue de16 terminations on petitions by classes of employees re17 questing recognition as members of the SEC. 

18 (7) As prescribed by the EEOICPA, the Sec19 retary of Health and Human Services may, subject 

20 to a recommendation by the Advisory Board on Ra21 diation and Worker Health (referred to in this sec22 tion as the ‘‘Advisory Board’’), designate additional 

23 classes of workers as members of the Special Expo24 sure Cohort without further legislative action, if— 


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1 (A) it is not feasible to estimate with suffi2 cient accuracy the radiation dose that members 

3 of the class received; and 

4 (B) there is a reasonable likelihood that 

5 such radiation dose may have endangered the 

6 health of the members of the class. 

7 (8) There is a four-step administrative review 

8 process for evaluating SEC Petitions. The process is 

9 as follows: 

10 (A) STEP ONE.—The National Institute 

11 for Occupational Safety and Health receives an 

12 SEC petition and determines whether the peti13 tion meets the regulatory requirements for the 

14 petition to be evaluated, and then evaluates 

15 each qualified petition to determine whether it 

16 is feasible given the available radiation moni17 toring data to estimate radiation dose with suf18 ficient accuracy. Following such evaluation, the 

19 National Institute for Occupational Safety and 

20 Health issues a written recommendation to the 

21 petitioners and the Advisory Board. 

22 (B) STEP TWO.—The Advisory Board con23 ducts an independent review of the evaluation 

24 by and recommendation from the National In25 stitute for Occupational Safety and Health, and 


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1 makes a recommendation to the Secretary of 

2 Health and Human Services regarding the peti3 tion. Subject to Advisory Board direction, a 

4 technical support contractor may be used to as5 sess technical issues related to the petition, 

6 evaluation report, or recommendation. 

7 (C) STEP THREE.—Not later than 30 days 

8 after receipt of the Advisory Board’s rec9 ommendation, the Secretary of Health and 

10 Human Services issues a final agency decision 

11 to grant or deny the petition, and transmits 

12 such decision to Congress. 

13 (D) STEP FOUR.—Congress has 30 days to 

14 review the Secretary’s decision. If Congress 

15 does not legislatively reverse the Secretary’s de16 cision within 30 days, it will go into effect as 

17 ordered by the Secretary. 

18 (9) In late 2005, the Office of Management and 

19 Budget issued a Passback communication to the De20 partment of Labor that contained the following 

21 statement: 

22 ‘‘ENERGY EMPLOYEES OCCUPATIONAL ILLNESS

23 COMPENSATION PROGRAM ACT (EEOICPA) PART B.— 

24 ESA (Department of Labor’s Employment Standard’s Ad25 ministration) is to be commended for identifying the poVerDate Aug 31 2005 23:12 Jan 14, 2007 Jkt 059200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H268.IH H268

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1 tential for a large expansion of EEOICPA Part B benefits 

2 through the designation of Special Exposure Cohorts 

3 (SEC). The Administration will convene a White House4 led interagency work group including HHS and Energy 

5 to develop options for administrative procedures to contain 

6 growth in the cost of benefits provided by the program. 

7 Discussions are not limited to, but will involve, the fol8 lowing five options. 

9 ‘‘1. Require Administration clearance of SEC 

10 determination[s]; 

11 ‘‘2. Address any imbalance in membership of 

12 President’s Advisory Board on Radiation and Work13 er Health; 

14 ‘‘3. Require an expedited review by outside ex15 perts of SEC recommendations by NIOSH; 

16 ‘‘4. Require NIOSH to apply ‘conflict of inter17 est’ rules and constraints to the Advisory Board’s 

18 contractor; and 

19 ‘‘5. Require that NIOSH demonstrate that its 

20 site profiles and other dose reconstruction guidance 

21 are balance[d].’’. 

22 (10) Congress finds that the policies outlined in 

23 the Office of Management and Budget Passback 

24 statement referred to in paragraph (9), if imple25 mented, will contravene Congressional intent and 


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1 weaken statutory checks and balances designed to 

2 ensure scientifically credible and fair decisions re3 garding SEC designations. ‘‘Administration clear4 ance’’ could result in the substitution of budget logic 

5 for scientific findings; addressing any ‘‘imbalance in 

6 the Advisory Board’’ could result in an Advisory 

7 Board tilted against SEC designations; imposing 

8 ‘‘constraints’’ could allow agency officials to inter9 fere with the independence of the audit contractor 

10 supporting the Advisory Board; and ‘‘expedited re11 views by outside experts’’ could lead to costly, time 

12 consuming, and extralegal reviews of Advisory Board 

13 recommendations. 

14 (11) There is no evidence that unwarranted 

15 Special Exposure Cohort petitions have been grant16 ed, or that any actions have been taken that would 

17 otherwise justify any of the five options outlined in 

18 the Office of Management and Budget Passback 

19 statement referred to in paragraph (9). 

20 (12) Two Advisory Board members were re21 moved by the President in 2006 without apparent 

22 cause, and currently the Advisory Board composition 

23 is not balanced, as required by EEOICPA and the 

24 Federal Advisory Committee Act. 


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1 (13) The amendments made by this Act to the 

2 Energy Employees Occupational Illness Compensa3 tion Program Act of 2000 ensure that classes of em4 ployees who apply for membership in the Special Ex5 posure Cohort by reason of illnesses arising out of 

6 exposure to radiation while performing work in sup7 port of the Nation’s nuclear weapons programs re8 ceive a fair determination of their claims. 

9 SEC. 3. COMPENSATION PROGRAM AND COMPENSATION 

10 FUND. 

11 Section 3612(e) (42 U.S.C. 7384e(e)) is amended— 

12 (1) in the heading of the subsection, by striking 

13 ‘‘NOT PAID FROM COMPENSATION FUND’’; 

14 (2) by striking ‘‘No costs incurred’’ and insert15 ing ‘‘(1) IN GENERAL—No costs incurred’’; and 

16 (3) by adding at the end the following: 

17 ‘‘(2) ADMINISTRATIVE COSTS AND ANNUAL

18 BUDGET REQUIREMENTS OF AGENCIES.— 

19 ‘‘(A) DEPARTMENT OF LABOR.— 

20 ‘‘(i) The Secretary of the Department 

21 of Labor shall include as part of the an22 nual budget request for the Department 

23 any administrative costs necessary to carry 

24 out its responsibilities under this Act. Ap25 propriations shall be allocated in approVerDate Aug 31 2005 23:12 Jan 14, 2007 Jkt 059200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H268.IH H268

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1 priations acts directly to the Department 

2 of Labor to carry out its responsibilities 

3 under this Act. 

4 ‘‘(ii) To ensure the timely transfer of 

5 records and information needed by the De6 partment of Labor and the Department of 

7 Health and Human Services for claims ad8 judication, the Secretary of the Depart9 ment of Labor may transfer funds to the 

10 Department of Energy, if appropriations 

11 made available to the Department of En12 ergy under other appropriation Acts are in13 sufficient for the Department of Energy to 

14 carry out its responsibilities under this 

15 Act. 

16 ‘‘(B) NATIONAL INSTITUTE FOR OCCUPA17 TIONAL SAFETY AND HEALTH.—The Secretary 

18 of Health and Human Services shall include as 

19 part of the annual budget request for the Na20 tional Institute for Occupational Safety and 

21 Health any administrative costs necessary for 

22 the National Institute for Occupational Safety 

23 and Health to carry out its responsibilities 

24 under this Act.Appropriations shall be allocated 

25 in appropriations acts directly to the DepartVerDate Aug 31 2005 23:12 Jan 14, 2007 Jkt 059200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H268.IH H268

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1 ment of Health and Human Services to carry 

2 out its responsibilities under this Act. 

3 ‘‘(C) ADVISORY BOARD ON RADIATION AND

4 WORKER HEALTH.— 

5 ‘‘(i) The Secretary of the Department 

6 of Health and Human Services shall in7 clude as part of the annual budget request 

8 for the Department any administrative 

9 costs and any staff and contract support 

10 costs necessary for the Advisory Board on 

11 Radiation and Worker Health (in this sec12 tion referred to as the ‘Advisory Board’) to 

13 carry out its responsibilities under this 

14 Act. Appropriations shall be allocated in 

15 appropriations Acts directly to the Depart16 ment of Health and Human Services for 

17 the Advisory Board to carry out its respon18 sibilities under this Act. Appropriations 

19 Acts shall also designate a line item for the 

20 Advisory Board, separate from the budget 

21 for the Department of Health and Human 

22 Services, for the activities of the Advisory 

23 Board related to the compensation pro24 gram under this Act. 


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1 ‘‘(ii) An annual budget request for the 

2 Advisory Board shall be prepared by the 

3 Advisory Board, in consultation with the 

4 Designated Federal official appointed 

5 under section 3624(c)(1)(B), and sub6 mitted to the Secretary of the Department 

7 of Health and Human Services on a sched8 ule to be established by the Secretary. If 

9 the amount requested by the Advisory 

10 Board is modified by the Secretary, the 

11 amount requested by the Advisory Board 

12 and any modifications shall be identified 

13 and explained in the budget request.’’. 

14 SEC. 4. SUBCONTRACTORS OF ATOMIC WEAPONS EMPLOY15 ERS. 

16 Section 3621(3)(A) (42 U.S.C. 7384l(3)(A)) is 

17 amended by inserting ‘‘, or a subcontractor of an atomic 

18 weapons employer,’’ after ‘‘an atomic weapons employer’’. 

19 SEC. 5. EXPANSION OF LIST OF BERYLLIUM VENDORS. 

20 Section 3622 (42 U.S.C. 7384m) is amended— 

21 (1) by striking ‘‘Not later than December 31, 

22 2002, the President may, in consultation with the 

23 Secretary of Energy,’’ and inserting ‘‘The Secretary 

24 of Energy shall, on or before December 31, 2007, 


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1 and annually thereafter until December 31, 2011,’’; 

2 and 

3 (2) by striking ‘‘the President finds’’ and in4 serting ‘‘the Secretary of Energy finds’’. 

5 SEC. 6. ALLOCATION OF RESPONSIBILITIES FOR PROGRAM 

6 ADMINISTRATION. 

7 (a) DEFINITION.—Paragraph (14) of section 3621 

8 (42 U.S.C. 7384l) is amended by striking ‘‘the President’’ 

9 each place it appears in subparagraph (C) and inserting 

10 ‘‘the Secretary of Health and Human Services’’. 

11 (b) EXPOSURE IN THE PERFORMANCE OF DUTY.— 

12 Section 3623 (42 U.S.C. 7384n) is amended— 

13 (1) in subsection (c)— 

14 (A) in paragraph (1), by striking ‘‘the 

15 President’’ and inserting ‘‘the Secretary of 

16 Health and Human Services’’; 

17 (B) in paragraph (2), by striking ‘‘The 

18 President’’ and inserting ‘‘The Secretary of 

19 Health and Human Services’’; and 

20 (C) in paragraph (3)(C), by striking ‘‘past 

21 health-related activities (such as smoking),’’; 

22 and 

23 (2) in subsection (d)— 

24 (A) in paragraph (1), by striking ‘‘The 

25 President shall’’ through ‘‘President may desVerDate Aug 31 2005 05:39 Jan 15, 2007 Jkt 059196 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H268.IH H268

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1 ignate,’’ and inserting ‘‘The Secretary of 

2 Health and Human Services shall’’; and 

3 (B) in paragraph (2), by striking ‘‘the 

4 President’’ and inserting ‘‘the Secretary of 

5 Health and Human Services’’. 

6 SEC. 7. ADVISORY BOARD ON RADIATION AND WORKER 

7 HEALTH. 

8 Section 3624 (42 U.S.C. 7384o) is amended— 

9 (1) by amending subsection (a) to read as fol10 lows: 

11 ‘‘(a) MEMBERSHIP.— 

12 ‘‘(1) Not later than 90 days after the date of 

13 the enactment of the Energy Employees Occupa14 tional Illness Compensation Program Improvement 

15 Act of 2007, the members of the Advisory Board on 

16 Radiation and Worker Health (referred to in this 

17 section as the ‘Board’), as of the day before the date 

18 of enactment of such Act, shall be removed from 

19 their positions on the Board, and new members of 

20 the Board shall be appointed in accordance with 

21 paragraph (2). Any individual who is a member of 

22 the Board on the day before the date of enactment 

23 of such Act, and who is removed in accordance with 

24 this paragraph, may be reappointed to the Board in 

25 accordance with paragraph (2). 


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1 ‘‘(2) The Board shall be made up of 12 mem2 bers, and the members shall be appointed as follows: 

3 ‘‘(A) Three members shall be appointed by 

4 the Speaker of the House of Representatives. 

5 ‘‘(B) Three members shall be appointed by 

6 the President of the Senate. 

7 ‘‘(C) Three members shall be appointed by 

8 the minority leader of the House of Representa9 tives. 

10 ‘‘(D) Three members shall be appointed by 

11 the minority leader of the Senate. 

12 ‘‘(3) The three members appointed by each ap13 pointing authority described in paragraph (2) shall 

14 include one representative of the scientific commu15 nity, one worker representative, and one representa16 tive of the medical community. 

17 ‘‘(4) For each appointment to the Board, the 

18 appropriate appointing authority shall— 

19 ‘‘(A) comply with all legal requirements re20 lated to Special Government Employees and the 

21 appointment of such employees, as determined 

22 by the Secretary of Health and Human Serv23 ices; 


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1 ‘‘(B) consult with organizations with ex2 pertise on worker health issues about such ap3 pointment; and 

4 ‘‘(C) ensure that such appointment con5 tributes to a balance of viewpoints and perspec6 tives held by members of the Board. 

7 ‘‘(5) The term of office of each member of the 

8 Board shall be three years. No member shall serve 

9 more than two terms. A vacancy on the Board shall 

10 be filled in the manner in which the original appoint11 ment was made. Upon expiration of a term, a mem12 ber of the Board shall continue to serve until the 

13 successor to such member has been appointed. The 

14 appointment of the replacement member shall be 

15 made not later than 60 days after the date on which 

16 the vacancy occurs. The Secretary of Health and 

17 Human Services shall— 

18 ‘‘(A) prepare a schedule for vacancies and 

19 appointments, and make such schedule available 

20 to the public in paper and electronic forms; 

21 ‘‘(B) identify the appropriate appointing 

22 authority listed in paragraph (2) who is respon23 sible for appointing a member for each vacancy; 

24 ‘‘(C) not later than 90 days before the end 

25 of a term of any member of the Board, provide 


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1 each appointing authority responsible for ap2 pointing a replacement member for a vacancy 

3 with— 

4 ‘‘(i) the number of vacancies and ex5 pected vacancies, based on member res6 ignations and the scheduled expiration of 

7 member terms; and 

8 ‘‘(ii) the representative category (sci9 entific, worker, or medical representative) 

10 of each member whose position on the 

11 Board has been, or is scheduled to be, va12 cated. 

13 ‘‘(6) A chair for the Board shall be selected 

14 from among its members by an annual vote of the 

15 members who are on the Board as of January 1 of 

16 each year. 

17 ‘‘(7) The Secretary of Health and Human Serv18 ices may recommend to the appropriate Congres19 sional appointing authority described in paragraph 

20 (2) that a member of the Board be removed as the 

21 result of neglect of duty, malfeasance in office, a vio22 lation of the conditions of the waivers provided 

23 under section 208 of title 18, United States Code, 

24 or a violation of the laws, regulations, policies, or 


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1 procedures related to the activities carried out under 

2 this Act.’’; 

3 (2) in subsection (b), by striking ‘‘the Presi4 dent’’ each place it appears and inserting ‘‘the Sec5 retary of Health and Human Services’’; 

6 (3) in subsection (c)— 

7 (A) by amending paragraph (1) to read as 

8 follows: 

9 ‘‘(1)(A) The Secretary of Health and Human 

10 Services shall provide administrative support to the 

11 Board, and shall assign staff, as necessary, to facili12 tate the work of the Board. The Board shall have 

13 the authority to select contractors and consultants, 

14 issue task orders, and make budget requests 

15 (through the Secretary of Health and Human Serv16 ices) for the annual budget of the Board and its 

17 staff. 

18 ‘‘(B) The Director of the National Institute for 

19 Occupational Safety and Health shall appoint a Des20 ignated Federal official and an Executive Secretary 

21 for the Board. The Designated Federal official and 

22 the Executive Secretary shall be independent of the 

23 Federal officials responsible for managing and im24 plementing radiation dose reconstruction activities 

25 and Special Exposure Cohort evaluations under this 


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1 Act. The Designated Federal official shall have the 

2 same authorities and responsibilities as the des3 ignated officer or employee of the Federal Govern4 ment described in section 10 of the Federal Advisory 

5 Committee Act (5 U.S.C. App.).’’; and 

6 (B) in paragraph (2), by striking ‘‘The 

7 President’’ inserting ‘‘The Secretary of Health 

8 and Human Services’’; 

9 (4) in subsection (d), by striking ‘‘the Presi10 dent’’ and inserting ‘‘the Secretary of Health and 

11 Human Services’’; and 

12 (5) by adding at the end the following new sub13 sections: 

14 ‘‘(g) LEGAL COUNSEL.—The Board may secure the 

15 services of independent legal counsel, in addition to or in 

16 lieu of any legal counsel provided to the Board by the Gen17 eral Counsel of the Department of Health and Human 

18 Services. 

19 ‘‘(h) APPLICABILITY OF THE FEDERAL ADVISORY

20 COMMITTEE ACT.—Unless otherwise provided in this Act, 

21 the Board shall operate under the provisions of the Fed22 eral Advisory Committee Act (5 U.S.C. App.), and mem23 bers of the Board shall be compensated at a daily rate 

24 of pay for level IV of the Executive Schedule under section 

25 5315 of title 5, United States Code.’’. 


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1 SEC. 8. SPECIAL EXPOSURE COHORT. 

2 Section 3626 (42 U.S.C. 7384q) is amended— 

3 (1) by striking ‘‘the President’’ each place it 

4 appears and inserting ‘‘the Secretary of Health and 

5 Human Services’’; 

6 (2) by striking ‘‘The President’’ each place it 

7 appears and inserting ‘‘The Secretary of Health and 

8 Human Services’’; 

9 (3) in subsection (a)(1) by inserting ‘‘any atom10 ic weapons employer facility, or any combination of 

11 such facilities,’’ after ‘‘any Department of Energy 

12 facility’’; 

13 (4) in subsection (a)(2), by adding at the end 

14 the following sentence: ‘‘An executive branch agency 

15 may submit a review of a petition described in para16 graph (3), or comments or recommendations relating 

17 to such a petition, to the Advisory Board on Radi18 ation and Worker Health, and such Advisory Board 

19 may consider any such review, comments, or rec20 ommendations in determining its advice under para21 graph (1), as such Advisory Board considers appro22 priate.’’; 

23 (5) in subsection (b)(1), by inserting ‘‘, based 

24 exclusively on information relating to the facility or 

25 facilities which are the subject of a petition deVerDate Aug 31 2005 23:12 Jan 14, 2007 Jkt 059200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\H268.IH H268

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1 scribed in paragraph (a)(3),’’ after ‘‘it is not fea2 sible’’; 

3 (6) in subsection (c)(1), by adding at the end 

4 the following sentence: ‘‘The Advisory Board on Ra5 diation and Worker Health shall transmit to the 

6 Secretary of the Department of Health and Human 

7 Services, not later than 21 days after the date on 

8 which such Advisory Board votes on a recommenda9 tion to the Secretary relating to the petition of the 

10 class of employees being considered for designation 

11 as a member of the Special Exposure Cohort, the 

12 formal recommendation of such Advisory Board, and 

13 the complete administrative record, relating to such 

14 petition.’’; 

15 (7) in subsection (c)(2)(A) (as amended by 

16 paragraph (1) of this section)— 

17 (A) by striking ‘‘Upon receipt by’’ and in18 serting ‘‘(1) Upon receipt by’’; 

19 (B) by inserting ‘‘, based solely on the rec20 ommendation of such Advisory Board and the 

21 complete administrative record,’’ after ‘‘in 

22 which to determine’’; and 

23 (C) by adding at the end of subparagraph 

24 (A) the following sentences: ‘‘During such 30- 

25 day period the Secretary shall not consider any 


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1 review, comment, or recommendation relating to 

2 the petition by any other executive branch agen3 cy, unless such review, comment, or rec4 ommendation was submitted to the Advisory 

5 Board on Radiation and Worker Health in ac6 cordance with subsection (a)(2), and appears on 

7 the administrative record of such Advisory 

8 Board. The determination by the Secretary 

9 shall be the same as the recommendation by 

10 such Advisory Board, unless, not later than 30 

11 days after the determination, the Secretary 

12 issues a formal finding of facts responding to 

13 the rationale outlined by such Advisory Board, 

14 and using information supported by the admin15 istrative record.’’; 

16 (8) by redesignating subsection (d) as sub17 section (h); and 

18 (9) by inserting after subsection (c) the fol19 lowing new subsections: 

20 ‘‘(d) ENFORCEMENT OF DEADLINES.—If the Direc21 tor of the National Institute of Occupational Safety and 

22 Health fails to submit a recommendation after receipt of 

23 a petition to the Advisory Board on Radiation and Worker 

24 Health in accordance with subsection (c)(1) within the 

25 180-day period required by such subsection, the Director 


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1 of the National Institute of Occupational Safety and 

2 Health shall promptly notify the petitioner, such Advisory 

3 Board, the appropriate Congressional committees of juris4 diction, and the Congressional delegation of the State in 

5 which the facility that is the subject of the petition is lo6 cated of the delay. Such notification shall include— 

7 ‘‘(1) an explanation for the delay; 

8 ‘‘(2) the date on which the evaluation will be 

9 completed; 

10 ‘‘(3) the reasons why a delay is necessary; and 

11 ‘‘(4) any adverse consequences of the delay for 

12 the petitioner. 

13 ‘‘(e) APPEALS.— 

14 ‘‘(1) SEC APPEALS BOARD ESTABLISHED.— 

15 There is established, within the Department of 

16 Health and Human Services, a 3-member Special 

17 Exposure Cohort Appeals Board (referred to in this 

18 section as the ‘SEC Board’), to which a petitioner 

19 may appeal an adverse Special Exposure Cohort des20 ignation. The SEC Board shall be appointed by the 

21 Secretary of Health and Human Services, and shall 

22 hear appeals, schedule hearings, take evidence, and 

23 issue decisions affirming or reversing the adverse 

24 Special Exposure Cohort designations. 


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1 ‘‘(2) PROCEDURES.—The SEC Board shall re2 view appeals de novo. Unless the petitioner waives 

3 the right to a formal adjudication and elects an in4 formal proceeding, appeals reviewed by the SEC 

5 Board shall be conducted on the record, in accord6 ance with the Administrative Procedures Act. Not 

7 later than 90 days after the date of enactment of 

8 the Energy Employees Occupational Illness Com9 pensation Program Improvement Act of 2007, the 

10 SEC Board shall issue Rules of Procedure for the 

11 appeals proceedings conducted by such SEC Board. 

12 Parties to any appeals proceeding under this sub13 section shall be limited to the Secretary of Health 

14 and Human Services and the petitioner. 

15 ‘‘(3) DECISIONS.—Decisions by the SEC Board 

16 shall be final agency actions. In the event that the 

17 SEC Board renders a decision reversing the adverse 

18 designation of a petition by the Secretary of Health 

19 and Human Services, the petition shall be remanded 

20 to the Secretary to carry out the decision of the 

21 Board and it shall be the duty of the Secretary to 

22 review such decision and, within 30 days of receipt 

23 of the remand, to issue a new determination regard24 ing the Special Exposure Cohort designation of the 

25 petitioner upon the basis of the proceedings already 


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1 had and the record upon which said appeal was 

2 heard and determined. 

3 ‘‘(4) WAIVER AND APPEAL OF SEC BOARD DECI4 SIONS.—A petitioner may waive the right to appeal 

5 to the SEC Board, and may seek judicial review of 

6 the Secretary’s decision under this paragraph. Deci7 sions by the Secretary of Health and Human Serv8 ices relating to a petition for designation as a mem9 ber of the Special Exposure Cohort may be appealed 

10 to the appropriate district court in the jurisdiction 

11 in which the facility that is the subject of the Special 

12 Exposure Cohort petition is located, or in the juris13 diction where the petitioner resides. 

14 ‘‘(f) AVAILABILITY OF PETITIONER INFORMATION.— 

15 The Director of the National Institute of Occupational 

16 Safety and Health shall, upon request, make available to 

17 the general public the name and contact information of 

18 each petitioner under this section. 

19 ‘‘(g) SPECIAL EXPOSURE COHORT PETITION ASSIST20 ANCE.— 

21 ‘‘(1) IN GENERAL.—Not later than 120 days 

22 after the date of enactment of the Energy Employ23 ees Occupational Illness Compensation Program Im24 provement Act of 2007, the Director of the National 

25 Institute of Occupational Safety and Health shall 


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1 provide for independent technical assistance for peti2 tioners and prospective petitioners with respect to 

3 preparing and qualifying Special Exposure Cohort 

4 petitions, and reviewing Special Exposure Cohort 

5 evaluation reports. Technical assistance may be pro6 vided through a cooperative agreement or contract 

7 with a nonprofit organization or institution of higher 

8 education that has expertise in occupational safety 

9 and health, and that does not have a conflict of in10 terest, as defined in section 3634. 

11 ‘‘(2) NOTICE.—The Director of the National 

12 Institute of Occupational Safety and Health shall 

13 notify petitioners and prospective petitioners for des14 ignation as members of the Special Exposure Cohort 

15 of the assistance available under this subsection. 

16 ‘‘(3) FUNDING.—In any fiscal year, not more 

17 than $250,000 of the funds authorized and provided 

18 for the administration of this Act in such fiscal year 

19 shall be used to carry out this subsection.’’. 

20 SEC. 9. CONFLICTS OF INTEREST. 

21 Subtitle B (42 U.S.C. 3621 et seq.) is further amend22 ed by adding at the end of the subtitle the following new 

23 section: 


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1 ‘‘SEC. 3634. PROHIBITION ON ENTITIES WITH CONFLICTS 

2 OF INTEREST. 

3 ‘‘(a) CONFLICT OF INTEREST POLICY.—The Sec4 retary of Health and Human Services shall prohibit an 

5 entity from participating in or performing any of the ac6 tivities described in subsection (b), if such entity— 

7 ‘‘(1) has, or has had, a personal, organizational, 

8 or professional conflict of interest relating to any ac9 tivity carried out under this Act; or 

10 ‘‘(2) has, or has had, previous employment or 

11 a personal or financial relationship that could bias 

12 the performance of activities under this Act. 

13 ‘‘(b) PROHIBITED ACTIVITIES.—An entity described 

14 in paragraph (1) or (2) of subsection (a) shall not be em15 ployed by the National Institute for Occupational Safety 

16 and Health (or by its contractors or subcontractors of any 

17 tier)— 

18 ‘‘(1) to perform the following program activi19 ties, if such entity performed work at or for a De20 partment of Energy or atomic weapons employer fa21 cility (or for a contractor or subcontractor per22 forming work at such facility)— 

23 ‘‘(A) prepare, conduct, approve, revise, or 

24 internally peer review individual radiation dose 

25 estimates at a Department of Energy or atomic 

26 weapons employer facility; 


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1 ‘‘(B) research, develop, prepare, author, 

2 lead a team preparing, serve as a site expert 

3 for, approve, revise, or internally peer review 

4 technical basis documents, technical information 

5 bulletins, site profiles, or other dose reconstruc6 tion guidance; and 

7 ‘‘(C) research, evaluate, make a rec8 ommendation relating to, serve as a site expert 

9 for, assess, or review a Special Exposure Cohort 

10 petition, or a revision thereto; or 

11 ‘‘(2) to perform any other activities the Sec12 retary of Health and Human Services determines 

13 are prohibited by reason of a conflict of interest de14 scribed in subsection (a)(1) or (2). 

15 ‘‘(c) REPORT AND DISCLOSURE OF CONFLICT INFOR16 MATION.— 

17 ‘‘(1) IN GENERAL.—Each contractor, subcon18 tractor, and consultant involved with radiation dose 

19 reconstruction, technical basis documents, technical 

20 information bulletins, site profiles, Special Exposure 

21 Cohort evaluations, epidemiologic research, or devel22 opment of dose reconstruction methods conducted 

23 under this Act shall report to the Director of the 

24 National Institute for Occupational Safety and 

25 Health the following: 


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1 ‘‘(A) The name of the entity, and the em2 ployer of such entity at the time of the initial 

3 report under this subsection, if any. 

4 ‘‘(B) Functions performed under this Act, 

5 educational background, a biographical descrip6 tion of past and present work at or for the De7 partment of Energy or an atomic weapons em8 ployer facility (or for a contractor or subcon9 tractor performing work at such facility), in10 cluding a list of responsibilities while employed 

11 at such facility. 

12 ‘‘(C) A list of each workers’ compensation 

13 claim or lawsuit (identified by name) in which 

14 any individual who is an entity under this sec15 tion was an expert witness (including as a non16 testifying expert), and the position such indi17 vidual held or represented in such claim or law18 suit. 

19 ‘‘(D) A list of facilities and positions for 

20 which the entity has a conflict of interest and 

21 is prohibited from carrying out activities re22 quired by this Act. 

23 ‘‘(E) Any change in the information re24 quired by this paragraph during the time such 


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1 entity is involved with the activities described in 

2 this subsection. 

3 ‘‘(2) INITIAL AND PERIODIC REPORTS.—A con4 tractor, subcontractor, or consultant required to re5 port information to the Director of the National In6 stitute for Occupational Safety and Health under 

7 paragraph (1) shall— 

8 ‘‘(A) initially report such information— 

9 ‘‘(i) not later than 15 days after the 

10 date of enactment of the Energy Employ11 ees Occupational Illness Compensation 

12 Program Improvement Act of 2007; or 

13 ‘‘(ii) in the case of such an entity that 

14 is not involved with an activity described in 

15 paragraph (1) as of the date of the enact16 ment of such Act, on the date that such 

17 entity becomes involved with such an activ18 ity; and 

19 ‘‘(B) shall periodically report any changes 

20 or updates to such information, as the Director 

21 may require. 

22 ‘‘(3) DISCLOSURE AND REVISION BY THE DI23 RECTOR.—The Director of the National Institute for 

24 Occupational Safety and Health shall disclose to the 

25 general public, in paper and electronic format, the 


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1 information reported to the Director under para2 graph (1). The Director shall require contractors, 

3 subcontractors, and consultants to periodically revise 

4 the information reported under paragraph (1) to in5 clude any changes to such information. The Director 

6 shall ensure that the information disclosed to the 

7 general public under this paragraph contains the 

8 most recent information available to the Director. 

9 ‘‘(d) CONTRACTS WITH NIOSH.— 

10 ‘‘(1) No entity that is performing work for the 

11 National Institute for Occupational Safety and 

12 Health or that has entered into and is obligated 

13 under a contracting arrangement with the National 

14 Institute for Occupational Safety and Health to con15 duct activities related to this Act shall, at any time 

16 during which the entity is performing such work or 

17 is so obligated— 

18 ‘‘(A) perform work at or for the Depart19 ment of Energy or an atomic weapons employer 

20 facility (or for a contractor or subcontractor 

21 performing work at a Department of Energy or 

22 an atomic weapons employer facility) which in23 volves radiation protection, dose estimation, or 

24 health physics; or 


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1 ‘‘(B) solicit new work related to radiation 

2 protection, dose estimation, or health physics 

3 from the Department of Energy or an atomic 

4 weapons employer (or from contractors or sub5 contractors performing work at a Department 

6 of Energy or an atomic weapons employer facil7 ity). 

8 ‘‘(2) Any contractor or subcontractor per9 forming work for or obligated under a contracting 

10 arrangement with the National Institute for Occupa11 tional Safety and Health shall disclose in electronic 

12 and paper form all past contracts that the con13 tractor or subcontractor has entered into for per14 forming work at or for the Department of Energy or 

15 an atomic weapons employer facility (or for a con16 tractor or subcontractor performing work at such fa17 cility) which involves radiation protection, dose esti18 mation, or health physics. 

19 ‘‘(e) DISALLOWANCE OF COSTS.—Any work product 

20 performed under a contracting arrangement with the De21 partment of Health and Human Services (or any agency 

22 or instrumentality thereof) by a contractor, subcontractor, 

23 or consultant in violation of this section, an agency conflict 

24 of interest policy, or a contract requirement related to con25 flict of interest shall constitute a breach of such contract, 


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1 and the costs incurred by such contractor, subcontractor, 

2 or consultant as a result of the performance of such work 

3 shall not be allowable costs for purposes of any cost reim4 bursement contract, task order contract, or any other type 

5 of contracting arrangement. 

6 ‘‘(f) NO WAIVERS.—The Secretary of Health and 

7 Human Services shall not issue any waivers to this section. 

8 ‘‘(g) DEFINITION OF ENTITY.—For purposes of this 

9 section and section 3635, the term ‘entity’— 

10 ‘‘(1) means— 

11 ‘‘(A) any individual— 

12 ‘‘(i) who is or was employed by the 

13 Department of Energy or an atomic weap14 ons employer (or by a contractor or sub15 contractor to the Department of Energy or 

16 an atomic weapons employer); or 

17 ‘‘(ii) who served as an expert witness 

18 (including as a nontestifying witness) in 

19 any legal proceeding defending a workers’ 

20 compensation claim related to radiation ex21 posure against the Department of Energy 

22 (or a contractor or subcontractor of any 

23 tier of such agency), or an atomic weapons 

24 employer; or 


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1 ‘‘(B) any organization, contractor, subcon2 tractor, or consultant (including any employee, 

3 agent, or official of an organization, contractor, 

4 subcontractor, or consultant); and 

5 ‘‘(2) does not include the Advisory Board on 

6 Radiation and Worker Health, or any member or 

7 employee of such Advisory Board. 

8 ‘‘SEC. 3635. EFFECTS OF CONFLICTS OF INTEREST ON USE 

9 OF WORK PERFORMED. 

10 ‘‘Any dose reconstruction, site profile, technical bul11 letin, or Special Exposure Cohort petition research per12 formed by an entity in violation of any provision of section 

13 3634, an agency conflict of interest policy, or a contract 

14 requirement related to conflict of interest shall not be con15 sidered or used for any purpose relating to— 

16 ‘‘(1) the adjudication of any claim concerning 

17 dose reconstruction of radiation doses received by 

18 any individual; or 

19 ‘‘(2) the consideration or determination of 

20 whether members of a class of employees may be 

21 treated as members of the Special Exposure Cohort 

22 under section 3626.’’. 

23 SEC. 10. DUTIES OF THE OFFICE OF OMBUDSMAN. 

24 Section 3686(c) (42 U.S.C. 7385s–15(c)) is amend25 ed— 


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1 (1) in paragraph (1), by inserting ‘‘subtitle B 

2 and’’ after ‘‘available under’’; 

3 (2) by redesignating paragraph (3) as para4 graph (5); and 

5 (3) by inserting after paragraph (2) the fol6 lowing new paragraphs: 

7 ‘‘(3) To assist individuals in making claims 

8 under this subtitle. 

9 ‘‘(4) To act as advocate on behalf of individuals 

10 seeking benefits under this subtitle.’’. 

11 SEC. 11. REGULATIONS. 

12 Not later than 90 days after the date of enactment 

13 of this Act, the Secretary of Health and Human Services 

14 shall publish rules to modify the regulations and proce15 dures of the Department of Health and Human Services 

16 relating to the Energy Employees Occupational Illness 

17 Compensation Program Act of 2000 (42 U.S.C. 7384 et 

18 seq.), to conform the regulations and procedures to the 

19 amendments made by this Act. 

Æ 


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