E7-13233. Procedures for Designating Classes of Employees as Members of the Special Exposure Cohort Under the Energy Employees Occupational Illness Compensation Program Act of 2000; Amendments

AGENCY:

Department of Health and Human Services.

ACTION:

Final Rule.

SUMMARY:

The Department of Health and Human Services is amending its procedures for designating classes of employees to be added to the Special Exposure Cohort under the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA). The final rule adds and revises deadlines for evaluating petitions for cohort status, clarifies when time periods commence and how they toll, and provides information relevant to these deadlines on the content of petition evaluation reports.

DATES:

This Final Rule is effective July 10, 2007.

FOR FURTHER INFORMATION CONTACT:

Larry Elliott, Director, Office of Compensation Analysis and Support, National Institute for Occupational Safety and Health, 4676 Columbia Parkway, MS-C-46, Cincinnati, OH 45226, Telephone [phone] (this is not a toll free number). Information requests can also be submitted by e-mail to [e-mail].

SUPPLEMENTARY INFORMATION:

I. Purpose of Rulemaking

On October 28, 2004, the President signed the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. 108-375 (codified as amended in scattered sections of 42 U.S.C.). Division C, Subtitle E, of this Act includes amendments to the Energy Employees Occupational Illness Compensation Program Act of 2000 (“EEOICPA”), 42 U.S.C. 7384-7385. Several of these amendments, under § 3166(b), established new statutory requirements under 42 U.S.C. 7384q and 7384l(14)(C)(ii) that pertain to the Department of Health and Human Services (“HHS”) procedures established under 42 CFR part 83: “Procedures for Designating Classes of Employees as Members of the Special Exposure Cohort under the Energy Employees Occupational Illness Compensation Program Act of 2000.” These new requirements included the following: (1) Following the receipt of a petition for designation as members of the Special Exposure Cohort (“the Cohort”), the National Institute for Occupational Safety and Health (NIOSH) must submit “a recommendation” on that petition, including all documentation, to the Advisory Board on Radiation and Worker Health (“the Board”) within 180 days; (2) following the receipt by the Secretary of HHS (“the Secretary”) of a recommendation by the Board that the Secretary determine in the affirmative that a class meets the statutory criteria for addition to the Cohort, the Secretary must submit to Congress a determination as to whether or not the class meets these statutory criteria within 30 days; (3) if the Secretary does not submit this determination to Congress within 30 days, then on the 31st day it shall be deemed that the Secretary has submitted a report to Congress that designates, as an addition to the Cohort, the class recommended by the Board for addition to the Cohort and that provides the criteria used to support the designation; and (4) the period Congress shall have to review a report submitted by the Secretary to designate a class as an addition to the Cohort is reduced from 180 days to 30 days.

The purpose of the new requirements was to expedite the evaluation and decision process for adding classes of employees to the Cohort.

On December 22, 2005, HHS issued an Interim Final Rule (IFR) incorporating changes to ensure the new statutory requirements are met and requesting public comment (70 FR 75950). The public comment period for this rulemaking was initially to close on February 21, 2006. Upon a request from the Board for additional time to comment, the comment period was extended for 30 days and closed on March 23, 2006, after a total of 90 days.

As discussed below, HHS has incorporated additional changes in this Final Rule in response to comments from the Board and from the public. These changes also bring the Final Rule into alignment with the Congressional recommendations specified in the Conference Report associated with the new statutory deadlines (H. Rep. 108-767).

II. Summary of Public Comments

The public comment period for the IFR extended from December 22, 2005 through March 23, 2006. HHS received comments from seven parties in addition to the consensus comments of the Board. These include four individuals, one U.S. Senator, one labor organization, and one advocacy group. The comments are summarized and responded to below, together with explanations of changes HHS has incorporated into this Final Rule.

A. 180-Day Deadline for NIOSH Recommendations

Several commenters, including the Board, recommended that HHS reiterate in the final rule NIOSH's 180-day statutory deadline to evaluate a petition and submit recommendations to the Board. One commenter also wanted the rule to specify what actions HHS would take if NIOSH failed to meet that deadline. In contrast, another commenter recommended against including any of the statutory deadlines in the rule because of concern that hastening the evaluation and recommendation process could prevent the full and fair consideration of petitions.

Commenters also raised concerns about various aspects of the IFR's petition qualification and review process. Several commenters were concerned that the rule did not include within the 180-day statutory deadline NIOSH's process for identifying deficiencies in petitions. They said the FY05 Defense Act Conference Report (H.Rep. 108-767) indicated that Congress intended for the qualification process to be included within the 180-day period, citing the following from the Report:

During the 180 day period when NIOSH is preparing the petition for review by the Advisory Board, NIOSH should identify all deficiencies in the petition * * *

Most commenters, including the Board, also recommended that HHS reinstate the 30-day period for petitioners to request a review of NIOSH's proposed finding that a petition is deficient and does not qualify for consideration. Finally, one commenter recommended that HHS clarify in the rule that NIOSH will provide a recommendation for each class of employees the petition covers.

In response to those comments, HHS has made several changes in the final rule. First, HHS has added a reference to the 180-day deadline for NIOSH to evaluate petitions and submit recommendations to the Board (§ 83.13 (e)). The provisions in the IFR were designed to ensure that NIOSH would meet the deadline. Referencing the 180-day deadline in the final rule identifies the goal that the earlier changes are intended to achieve.

Second, HHS has revised the rule so the process of determining whether petitions are qualified is included in the 180-day period (§§ 83.5(k) and 83.11). HHS agrees with the commenters that Congress intended to include that process in the 180-day period, and the change brings the final rule into alignment with the Conference Report.

As the commenters pointed out, the IFR did not include this process in the 180-day period. In the preamble to the IFR, HHS said it was necessary to exclude the process from the deadline to ensure that NIOSH had adequate time to evaluate petitions and make recommendations within the deadline. According to NIOSH, sometimes it can take months to assist and consult with petitioners to help them remedy petition deficiencies, which could significantly impact NIOSH's ability to do a comprehensive evaluation before the deadline ended. Thus, in the IFR HHS distinguished between “submissions” (i.e., petitions that were not yet determined to meet the requirements of §§ 83.7-83.9) and “petitions” (i.e., petitions that have been determined to meet the requirements) (§ 83.5(k)). The 180-day period started tolling only when NIOSH received a “petition” (§ 83.5(k)). In the final rule, HHS has deleted § 83.5(k) and removed the distinction between submissions and petitions in § 83.11.

Third, HHS has reinstated the 30-day period for petitioners to request a review of NIOSH's proposed finding that a petition is deficient (§ 83.11). In the IFR, HHS had reduced the request period to 7 days to increase the feasibility of NIOSH meeting the 180-day deadline. To ensure that the additional time for requesting review does not prevent NIOSH from meeting the deadline, HHS is adopting the recommendation of one commenter that the clock on the 180 days start when petitioners seek and are granted a review on whether their petition satisfies all requirements. Accordingly, HHS has added new paragraph (e) to § 83.13 specifying that the 180-day period shall not include any days during which (1) the petitioner is revising the petition to remedy deficiencies NIOSH identified, (2) the petitioner requests a review of NIOSH's proposed finding that the petition does not meet all relevant requirements, or (3) the three-person HHS panel (as authorized by § 83.11(d)) is reviewing the petitioner's request.

Finally, HHS has revised § 83.13(d)(4) to clarify that NIOSH evaluation report findings to the Board must specify whether it is “feasible” to estimate radiation doses with sufficient accuracy “for each class defined in the report.” HHS is adding this specification because NIOSH sometimes finds a Cohort petition covers more than one class of employees even though it is submitted on behalf of a single class. For example, in some cases, NIOSH will find differences in radiation exposures and record availability for different employee groups at the same facility. Consequently, NIOSH evaluation reports may need to define more than one class of employees in the petition and provide separate findings concerning each class. In light of NIOSH's 180-day deadline, HHS has also added language to paragraph (d)(4) indicating that NIOSH's evaluation report must include a feasibility finding about whether radiation doses for each class of employees can be estimated with sufficient accuracy.

HHS did not adopt every recommendation commenters made. HHS has not incorporated recommendations that NIOSH inform petitioners of all deficiencies within the first 30 days (H. Rep. 108-767). HHS believes the recommendation is not necessary. The changes in the final rule specifying that the 180-day period begins when NIOSH receives a petition gives the Agency more than adequate incentive to identify very quickly whether the petition qualifies for consideration or has deficiencies.

Also, HHS has not adopted the recommendation to add requirements to the final rule specifying the actions HHS would take if NIOSH failed to meet the 180-day deadline. HHS fully understands the EEOICPA statutory amendments stressing the importance of evaluating petitions in a timely manner. Although there may be complex circumstances of radiation exposure or records availability or exceptional instances when it may be challenging to complete a comprehensive evaluation covering all of the classes of employees included in petition within 180 days, HHS will make every effort to meet the deadline. The NIOSH Web page at http:www.cdc.gov/​NIOSH/​ocas will continuously track the progress of each active petition for the interested public.

B. Resubmission of Petitions Based on New Information

Two commenters indicated confusion concerning whether a petitioner could submit a petition on behalf of a class of employees subsequent to NIOSH finding that a prior petition covering the class did not meet the petition requirements. The commenters believed that § 83.11(f) only permitted NIOSH, upon its own discretion, to consider a petition for a class of employees for which a prior petition had already been found to not meet petition requirements.

Nothing in the rule would prevent a petitioner from submitting a subsequent petition based on new information. Such a petition would be evaluated by NIOSH as a new petition. HHS has amended § 83.11, adding paragraph (g), to clarify that petitioners may submit an additional petition for a class of employees, based on new information, subsequent to NIOSH finding that a petition does not meet the petition requirements specified in §§ 83.7—83.9.

The existing paragraph (f) of § 83.11 has a different purpose. It is intended to allow NIOSH to reconsider a petition that it found to not meet petition requirements, based on new information NIOSH might obtain from any source, irrespective of any further action of the petitioner.

C. Deadline for the Chair of the Board To Submit the Cohort Petition Recommendations of the Board

One commenter recommended that HHS regulate the current policy of the Board that requires the Chair to submit recommendations of the Board on the outcome of Cohort petitions to the Secretary within 21 days of the Board's consensus formulation and approval of the recommendations.

HHS has not incorporated this Board policy into the rule. Doing so would violate the Administrative Procedure Act (“APA”) rulemaking procedures specified in 5 U.S.C. 553 for the development of regulations. The APA requires that the regulating agency both provide the public with the opportunity for notice and comment and consider submitted comments prior to promulgation of a final rule. The change proposed by the commenter is not a reasonably foreseeable outcome of the changes discussed in the IFR and making such a change would not offer the public adequate notice of the change.

Furthermore, HHS does not consider it necessary or appropriate to regulate this currently self-imposed policy of the Board. It is within the Board's prerogative, with the guidance of the Designated Federal Official, to set and manage its own deadlines.

D. Review of Proposed and Final Decisions of HHS on the Outcome of Cohort Petitions

One commenter recommended HHS reinstate the opportunity for petitioners to seek reviews of the proposed decisions on the outcome of petitions, issued by the Director of NIOSH under § 83.16(a), prior to the issuance of final decisions by the Secretary of HHS.

As discussed in the preamble of the IFR (70 FR 75950, December 22, 2005), it is not possible for petitioners to seek and HHS to provide an administrative review of the proposed decision, and for the Secretary to issue a final decision, all within the 30-day Congressional report deadline. For this reason, the administrative review opportunity of petitioners was preserved but moved in the sequence of HHS actions to follow, rather than precede, the Secretary's final decision.

Another commenter questioned whether the Secretary has discretion in responding to an HHS administrative review of a final decision and whether petitioners must seek such an administrative review as a prerequisite to obtaining a judicial review of a final decision of the Secretary issued under § 83.17.

Under § 83.18(c), the Secretary retains the discretion to decide the outcome of a petition, after obtaining and considering the information provided by the HHS administrative review. The authority to decide the outcome of petitions was statutorily assigned to the President (42 U.S.C. 7384q) and delegated to the Secretary by Executive Order 13179.

The Secretary's decision to add or deny adding a class to the Cohort is final unless he revises the decision pursuant to an administrative review under § 83.18 or Congress takes other action. This administrative review is optional; neither EEOICPA nor this regulation requires it as a prerequisite to judicial review.

E. Protection of the Personal Information of the Petitioner

One commenter recommended requiring that NIOSH disclose the identities and contact information of petitioners. The commenter reasoned that since the petitioner is acting on behalf of a class of employees, the petitioner should not have the right to privacy.

The IFR did not propose imposing such a requirement on NIOSH or petitioners in this Final Rule. Instead, HHS would first have to provide public notice, the opportunity for public comment, and consideration of comments submitted, as required for rulemaking under the APA.

Moreover, the recommendation to require petitioners or NIOSH to disclose the identity and contact information of the petitioners is contrary to the customary protection afforded by the Federal government to members of the public under the Privacy Act (5 U.S.C. 552a). In particular, 5 U.S.C. 552a(b) bars agencies (subject to certain exceptions not applicable here) from disclosing records such as those at issue in the recommendation, where petitioner information is “contained in a system of records” that allows retrieval of such records by unique person-specific identifiers, “to any person, or to another agency” without the individual's written request or prior written consent.

In addition, there does not appear to be a substantial justification or benefit to requiring the disclosure of the identity and contact information of the petitioner. A petitioner should not have to choose between acting on his or her own behalf, as a member or a survivor of a member of the class of employees represented in the petition, and his or her right to privacy. It is true that the class of employees includes other individuals who would also benefit from an affirmative decision on the petition by the Secretary, but any other member of the class of employees covered by the petition can obtain the same rights as the petitioner by submitting a valid petition, meeting the requirements specified under §§ 83.7-83.9, on behalf of the same class of employees.

F. Authority and Deadline for the Secretary To Decide on Petitions

Two commenters appeared to have misunderstood the statutory requirement that the President render a decision regarding the addition of a class of employees to the Cohort within 30 days of the Board having recommended its addition (see 42 U.S.C. 7384q(c)(2)(A)-(B)) to newly authorize the President's involvement in these decisions. One commenter recommended that the President not be given the role of making such decisions, and the second commenter recommended that the President not be provided 30 days to make such decisions, as the commenter believed this would prolong the decision-making process.

Since EEOICPA was originally enacted in 2000, the President has been solely authorized in the statute to decide whether or not to designate classes of employees for addition to the Cohort. The President delegated this authority to the Secretary, who has implemented this authority ever since. The only change made by the statutory requirement discussed above is to impose a 30-day deadline on the President to make such decisions in certain cases. As discussed in the IFR, this 30-day deadline applies to the Secretary's decisions, since the President delegated this decision-making authority to the Secretary. The deadline does not prolong the decision-making process since, prior to this statutory requirement, the Secretary was not under any deadline to make such decisions.

G. Non-Regulatory Comments

HHS received several comments that do not pertain to the IFR. These included a comment to add a class of employees from the Hanford facility to the Cohort, a personal perspective on the history of the management of the U.S. nuclear weapons program, concerns about the involvement of the Office of Management and Budget (“OMB”) in the program, and a speculation that adding classes of employees to the Cohort would be cost-saving compared to the conduct of dose reconstructions.

The Board recommended NIOSH provide petitioners with guidance in the form of a timeline for the petition process, to ensure petitioners understand the expected duration of the entire process and its elements, from the submission of a petition to the point at which final decisions on a petition become effective. NIOSH will provide each petitioner with such guidance, together with other introductory materials provided to petitioners upon the receipt by NIOSH of a petition.

One commenter suggested all cancers be added to the list of 22 “specified cancers” covered for members of the Cohort. The list of specified cancers covered for members of the Cohort is established statutorily under EEOICPA and not governed by this rulemaking. EEOICPA states:

The term “specified cancer” means any of the following:

(A) A specified disease, as that term is defined in section 4(b)(2) of the Radiation Exposure Compensation Act (42 U.S.C. 2210 note).

(B) Bone cancer.

(C) Renal cancers.

(D) Leukemia (other than chronic lymphocytic leukemia), if initial occupational exposure occurred before 21 years of age and onset occurred more than two years after initial occupational exposure. 42 U.S.C. 7384l(17)

III. Regulatory Assessment Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the agency must determine whether a regulatory action is “significant” and therefore subject to review by OMB and the requirements of the Executive Order. Under section 3(f), the order defines a “significant regulatory action” as an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the executive order.

This rule is being treated as a “significant regulatory action” within the meaning of the executive order because it meets the criterion of Section 3(f)(4) in that it raises novel or legal policy issues arising out of the legal mandate established by EEOICPA. It amends current procedures by which the Secretary considers petitions to add classes of employees to the Cohort to comport with new statutory deadlines (see 42 U.S.C. 7384q(c)(2)(A) and 42 U.S.C. 7384l(14)(C)(ii)). The revisions, however, neither affect the financial cost to the federal government of responding to these petitions nor the scientific and policy bases for making decisions on such petitions.

The rule carefully explains the manner in which the procedures are consistent with the mandates of 42 U.S.C. 7384q and 7384l(14)(C)(ii) and implements the detailed requirements of these sections. The rule does not interfere with State, local, and tribal governments in the exercise of their governmental functions.

The rule is not considered economically significant, as defined in § 3(f)(1) of Executive Order 12866. As discussed above, it does not affect the financial cost to the federal government of responding to these petitions nor does it affect the scientific and policy bases for making decisions on such petitions. Furthermore, it has a subordinate role in the adjudication of claims under EEOICPA, serving as one element of an adjudication process administered by the Department of Labor (“DOL”) under 20 CFR parts 1 and 30. DOL has determined that its rule fulfills the requirements of Executive Order 12866 and provides estimates of the aggregate cost of benefits and administrative expenses of implementing EEOICPA under its rule (see 71 FR 78520, December 29, 2006). OMB has reviewed this rule for consistency with the President's priorities and the principles set forth in Executive Order 12866.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601 et. seq., requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small not-for-profit organizations. HHS certifies that this rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. The rule affects only HHS, DOL, the Department of Energy, and certain individuals covered by EEOICPA. Therefore, a regulatory flexibility analysis as provided for under RFA is not required.

C. What Are the Paperwork and Other Information Collection Requirements (Subject to the Paperwork Reduction Act) Imposed Under This Rule?

The Paperwork Reduction Act (“PRA”) 44 U.S.C. 3501 et seq., requires an agency to invite public comment on and to obtain OMB approval of any regulation that requires ten or more people to report information to the agency or to keep certain records. The Special Exposure Cohort rule, 42 CFR part 83, which requires the collection of information from petitioners, is covered by the PRA and has received OMB clearance (OMB control #0920-0639). However, this rulemaking, which makes limited changes to 42 CFR part 83, does not contain any information collection requirements. Thus, HHS has determined that the PRA does not apply to this rulemaking.

D. Small Business Regulatory Enforcement Fairness Act

As required by Congress under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), HHS will report to Congress promulgation of this rule prior to its taking effect. The report will state that HHS has concluded that this rule is not a “major rule” because it is not likely to result in an annual effect on the economy of $100 million or more. However, this rule has a subordinate role in the adjudication of claims under EEOICPA, serving as one element of an adjudication process administered by DOL under 20 CFR parts 1 and 30. DOL has determined that its rule is a “major rule” because it will likely result in an annual effect on the economy of $100 million or more.

E. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq.) directs agencies to assess the effects of federal regulatory actions on State, local, and tribal governments and the private sector “other than to the extent that such regulations incorporate requirements specifically set forth in law.” For purposes of the Unfunded Mandates Reform Act, this rule does not include any federal mandate that may result in increased annual expenditures in excess of $100 million by state, local or tribal governments in the aggregate, or by the private sector.

F. Executive Order 12988 (Civil Justice)

This rule has been drafted and reviewed in accordance with Executive Order 12988 on Civil Justice Reform and will not unduly burden the federal court system. HHS adverse decisions may be reviewed in United States District Courts pursuant to the APA. HHS has attempted to minimize that burden by providing petitioners an opportunity to seek administrative review of adverse decisions. HHS has provided a clear legal standard it will apply in considering petitions. This rule has been reviewed carefully to eliminate drafting errors and ambiguities.

G. Executive Order 13132 (Federalism)

HHS has reviewed this rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” The rule does not “have 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.”

H. Executive Order 13045 (Protection of Children From Environmental, Health Risks and Safety Risks)

In accordance with Executive Order 13045, HHS has evaluated the environmental health and safety effects of this rule on children. HHS has determined that the rule would have no effect on children.

I. Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use)

In accordance with Executive Order 13211, HHS has evaluated the effects of this rule on energy supply, distribution or use, and has determined that the rule will not have a significant adverse effect on them.

J. Effective Date

The Secretary has determined, pursuant to 5 U.S.C. 553(d)(3), that there is good cause for this rule to be effective immediately to eliminate legal inconsistencies between new statutory requirements under 42 U.S.C. 7384 l and 7384q and regulatory requirements under 42 CFR part 83 and to make the implementation of the new statutory requirements feasible.

List of Subjects in 42 CFR Part 83

• Government employees
• Occupational safety and health
• Nuclear materials
• Radiation protection
• Radioactive materials
• Workers' compensation

Text of the Rule

For the reasons discussed in the preamble, the interim rule amending 42 CFR part 83, published on December 22, 2005 (70 FR 75950), is confirmed as final with the folling changes:

PART 83—[AMENDED]

1. The authority citation for part 83 continues to read as follows:

Authority: 42 U.S.C. 7384q; E.O. 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321.

Subpart B—Definitions

§ 83.5

[Amended]

2. Amend § 83.5 by removing paragraph (k) and redesignating paragraphs (l) through (p) as paragraphs (k) through (o), respectively.

Subpart C—Procedures for Adding Classes of Employees to the Cohort

3. Amend § 83.11 as follows:

A. By revising the section heading.

B. By replacing the term “submission” with the term “petition” in paragraphs (a) through (d) and (f).

C. By replacing the phrases “7 calendar days” and “7 day period” with “30 calendar days” and “30-day period”, respectively, in paragraph (c).

D. By replacing “8 calendar days” with “31 calendar days” in paragraph (e).

E. By adding a new paragraph (g) to read as follows:

§ 83.11

What happens to petitions that do not satisfy all relevant requirements under §§ 83.7 through 83.9?

* * * * *

(g) A petitioner whose petition has been found not to satisfy the requirements for a petition under either paragraph (d) or (e) of this section may submit to NIOSH a new petition for the identical class of employees at any time thereafter on the basis of new information not provided to NIOSH in the original petition. In such a case, the petitioner is required to fully re-address all the requirements of §§ 83.7-83.9 in the petition.

4. Amend § 83.13 by revising paragraph (d)(4) and adding paragraph (e) to read as follows:

§ 83.13

How will NIOSH evaluate petitions, other than petitions by claimants covered under § 83.14?

* * * * *

(d)(4) A summary of the findings concerning the adequacy of existing records and information for reconstructing doses for individual members of the class under the methods of 42 CFR part 82 specifying, for each class defined in the report, whether NIOSH finds that it is feasible to estimate the radiation doses of members of the class with sufficient accuracy, and a description of the evaluation methods and information upon which these findings are based; and

* * * * *

(e) The NIOSH report under paragraph (d) of this section shall be completed within 180 calendar days of the receipt of the petition by NIOSH. The procedure for computing this time period is specified in § 83.5(c). In addition, the computing of 180 calendar days shall not include any days during which the petitioner may be revising the petition to remedy deficiencies identified by NIOSH under § 83.11(a) or (b), nor shall it include any days during which the petitioner may request a review of a proposed finding under § 83.11(c) or during the conduct of such a review under § 83.11(d).

Dated: March 16, 2007.

Michael O. Leavitt,

Secretary, Department of Health and Human Services.

Editorial Note:

This document was received in the Office of the Federal Register on July 3, 2007.