MAY. 27. 2003 11:00AM SENATOR REID NO. 709 P. 5/6

Our second objection relates to the meaning proposed for the terms “feasible” and
“sufficient accuracy” with respect to dose reconstruction by NIOSH. The proposed nile
would take the position that it is feasible to estimate radiation dose with sufficient
accuracy “if HHS has access to sufficient information to estimate the maximum radiation
dose that could have been incurred in plausible circumstances by any member of the
class.” We believe that this standard is inconsistent with clearly expressed Congressional
intent. The pertinent discussion in the legislative history (also from page $10377) is as
follows:

‘There are several reasons why reconstructing a dose might be infeasib[le].
First, relevant records of dose may be lacking, or might not exist
altogether. Second, there might be a way to reconstruct the dose, but it
would be prohibitively expensive to do so. Finally, it might take so long
to reconstruct a dose for a group of workers that they will be all dead
before we have an answer that can be used to determine their eligibility.

This passage evidences a much broader test of feasibility, motivated by a concen

. that the dose reconstruction process could become so complicated that the essential aim

/ of the statute (i.e, compensation) would be frustrated. We are concerned that the

standard proposed for adoption by NIOSH will result in dose reconstructions being

attempted in many of the circumstances that we Sought to exclude when crafting the

statute. In particular, the final rule should clarify the use of a time limit, after which time

it would be presumed that NIOSH had determined that the “not feasible to estimate with

sufficient accuracy” standard had been met. Thus, we would urge, at a minimum, that the

tule incorporate these three factors into its definition of feasibility, and that the mle

specify parameters related to time and cost to serve as a means of considering, in a
uniform manner, the issues of excessive length of time and prohibitive cost.

In addition to these concems that are motivated by what we see as a misreading of
the statute, we have two other concems about the rule, as proposed,

First, the rule proposes that when NIOSH is able to construct “worst case
estimates” of dose, workers will be excluded fom membership in the Special Exposure
Cohort. Worst case estimates are used in a different and apparently incompatible way,
though, in the existing dose reconstruction mle (42 CFR. § 82). Claimants should not
fall into a regulatory void between this Proposed rule and the dose reconstruction rule.
Either claimants should receive a final determination of their eligibility for compensation
under 42 C.F.R. § 82 or they should be included in the Special Exposure Cohort. The
proposed rule should clarify, as well, that § 3626 does not require a demonstration that no
“worst case estimate” can be reached for inclusion in the Special Exposure Cohort.

Second, while the proposed mle references the fact that there will be numerous
administrative processes (such as appeals), these processes are not described in any way
that can provide for informed public comment, Yet, the administrative processes will be
very important to claimants who will seek their ri ghts undet EEOICPA. We believe that

2


MAY. 27. 2003 11:00AM SENATOR REID NO.709  P. 4/6

Congress of the United States
Washington, BE 20510

May 6, 2003

Dr. John Howard, Director .
National Institute of Occupational Safety and Health
Department of Health and Human Services

Hubert H. Humphrey Building

200 Independence Avenue, S.W.

Room 715H

Washington, D.C. 20201
RE: NIOSH proposed mules on Special Exposure Cohorts

Dear Dr. Howard:

We are writing to express our strong concem regarding the Department's
proposed rule relating to Special Exposure Cohorts (68 Federal Register 11294 et seq.),
which has been developed by the National Institute for Occupational Safety and Health
(NIOSH) pursuant to the Energy Employees Occupational Iliness Compensation Program
Act of 2000 (EEOICPA). Two key issues in the rule deviate substantially from
Congressional intent in crafting this law, A number of us were involved in the
deliberations that led to the EBOICPA, and all of us are concerned that it be implemented
in accordance with the understanding at the time of enactment of how key features of the

Act would operate.

Our first objection to the proposed rulemaking deals with a provision that permits
NIOSH to limit the list of “specified cancers” in a given Special Exposure Cohort to
fewer than the 22 cancers listed or incorporated by reference in the definition of

. “specified cancers” in section 3621(17) of EEOICPA. There is nothing in the statute or
in the record of Congressional deliberation that supports this change in how EEOICPA
would operate. Indeed, the legislative history clearly delineates Congressional intent that
a “fixed list” of specified cancers was intended to serve as the basis for compensation for
members of a Special Exposure Cohort, and not a variable list drawn up at the discretion
of the agency. As specifically stated in the Congressional Record for October 12, 2000
(page S10377), “Once a group of workers was placed in the category [i.e., the Special
Exposure Cohort], it would be eligible for compensation for a fixed list of radiation-
related cancers.”

Those of us who participated in deliberations during the conference on the
provisions of EEOICPA fully expected that all specified cancers would apply to any
group of workers added to a Special Exposure Cohort. We would strongly urge that this
aspect of the proposed rule be conformed to the letter and spirit of the law.


MAY. 27. 2003 11:00AM SENATOR REID NO. 709 P. 6/6

additional information needs to be made available along these lines, so that this topic can
be addressed in the final mle.

Thank you for your attention and consideration of our concerns. We are looking
forward to hearing from you or your designee soon about the steps you will take to
address them. Staff members who were involved in the negotiations that led to
EEOICPA are available if your staff has any questions: Robert Simon of the staff for the
Senate Committee on Energy and Natural Resources (224-9201), John Drake or Ed
Wallace of the staff of the Senate Committee on Finance (224-4515), and Holly Fechner
of the staff for the Senate Committee on Health, Education, Labor and Pensions (224-

5441).

Sincerely,

ANZ 2an, Usch tenaaboy,
LY oak Tey oe



MAY. 27. 2003 10:59AM SENATOR REID NO.709 PL 1/6

U.S. Senator Harry Reid /

Senator for Nevada, Assistant Democratic Leader |P

528 Hart Senate Office Building PHONE (202) 224 - 3542 id
Washington, DC 20510 FAX (202) 224 - 7327

FAX TRANSMISSION
Faxto: Nios Decker oFFree
FAX NUMBER: ( $13) $33-S82e5
FROM: S$¢e Atfachs.)
DATE: M hes 2, Ze e3
SUBJECT: Mos peo pose oO RUCE
TOTAL PAGES (Including Cover): &

COMMENTS:

Disclaimer: The document(s) accompanying this cover sheet may contain confidential information. The information is
intended only for the use of the recipient(s). /f you are not the intended recipient, you are notified that an’ y disclosure,

copying, distribution, or any other action involving the contents of this transmitted information is not allowed, If you have

received this transmission in error, please notify us immediately at the telephone number provided on this sheet,



MAY. 27. 2003 10:59AM SENATOR REID NO.709 PB. 0/6

Congress of the Unitey States
Washington, BE 20515

May 19, 2003

The Honorable Tommy Thompson
Secretary

Department of Health and Human Services
Hubert H, Humphrey Building

200 Independence Avenue, S.W.
Washington, D.C. 20201

RE: NIOSH proposed rules on Special Exposure Cohorts

Dear Mr. Secretary:

We are writing to express our concern regarding the Department's proposed rule relating
to Special Exposure Cohorts (68 Federal Register 11294 et seq.), which has been developed by
the National Institute for Occupational Safety and Health (NIOSH) pursuant to the Energy
Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA),

We believe that EEOICPA was intended to provide fair and éfficient sompensation for
exposed workers. While science is important, it should not serve as an obstacle to compensation
decisions for those who need medical and financial assistance, For these reasons, we join in the
comments regarding the proposed rule set forth in the attached letter signed by Senators
Bingaman, Grassley, Kennedy, and Murray.

Sincerely,
fete Yarra lL

¢s Sensenbrenner, Jr. , fy Reid

an, House Committee on the Assistant Democratic Leader

udiciary

ofin N. Hostettler Tom Harkin
airman, Subcommittee on Immigration Ranking Member, Subcommittee on

Border Security, and Claims Labor, Health and Human

Services


MAY. 27. 2003 10:59AM SENATOR REID NO.709 PB. 3/6

Letter to Tommy Thompson

Re: NIOSH proposed miles on Special Exposure Cohorts
May 19, 2003

p.2 of 2

Louise Swe a Sherrod Brown
Ted Strickland | \na Udall

helley Berkley [ f James A. Gibbons