[Federal Register Volume 63, Number 204 (Thursday, October 22, 1998)]
[Rules and Regulations]
[Pages 56752-56754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28211]
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DEPARTMENT OF LABOR
Office of Workers' Compensation Programs
20 CFR Part 10
RIN 1215-AB18
Use and Disclosure of Federal Employees' Compensation Act Claims
File Material
AGENCY: Employment Standards Administration, Office of Workers'
Compensation Programs, Labor.
ACTION: Notice of final rulemaking.
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SUMMARY: The Department of Labor's Office of Workers' Compensation
Programs (OWCP), is revising the rules regulating the release, use, and
disclosure of documents covered by the Privacy Act system of records
entitled ``DOL/GOVT-1 (Office of Workers'
[[Page 56753]]
Compensation Programs, Federal Employees' Compensation Act File).''
This system covers all documents relating to claims filed under the
Federal Employees' Compensation Act (FECA), including copies retained
by employing agencies. Because records covered by DOL/GOVT-1 are used
by the OWCP in making decisions with regard to FECA entitlement, the
Department is revising its regulation to reserve to the OWCP the
exclusive authority for ruling on requests submitted by the subject of
the FECA file for the correction or amendment of any record contained
in such file.
EFFECTIVE DATE: November 23, 1998.
FOR FURTHER INFORMATION CONTACT: Thomas M. Markey, Director for Federal
Employees' Compensation, Employment Standards Administration, U.S.
Department of Labor, Room S-3229, 200 Constitution Avenue, NW,
Washington, DC 20210-0002. Telephone: (202) 219-7552.
SUPPLEMENTARY INFORMATION:
I. Discussion
In a notice published July 28, 1997 (62 FR 40418), the Department
proposed to amend Sec. 10.12 of part 10 to clarify the provisions
regulating the release, use and/or disclosure of documents relating to
claims filed under the Federal Employees' Compensation Act (FECA), 5
U.S.C. 8101 et seq. Only one comment was received by the Department. In
its written submission, the Department of Defense's Civilian Personnel
Management Service agreed with the provisions giving the OWCP exclusive
authority over FECA related records. The Service expressed concern,
however, on the impact which the provisions could have on so-called
dual records. The Service wrote:
It is evident that a work related incident that causes an injury
will likely trigger many records other than Workers' Compensation
documentation. A single incident may generate a safety
investigation, a criminal investigation, and various personnel
actions, any one of which will create dual records. These dual
records are currently part of the DoD systems of records. Copies of
these records may be submitted to OWCP as evidence to support or
controvert initial or continuing actions in the Worker's
Compensation case.
The Service sought clarification on whether it was appropriate to
maintain records concerning an injury covered by the FECA in systems of
records it may have established, and, if so, whether the agency could
make corrections or amendments to its own records.
The Department of Labor, which has the exclusive authority for
administering and enforcing the workers' compensation program
applicable to Federal employees (5 U.S.C. 8128(b), 8145), considers all
records collected because a claim was filed seeking benefits under the
FECA, to be official records of the Department and, with one limited
exception, covered by DOL/GOVT-1, the government-wide Privacy Act
system of records most recently reported by the Department at 62 FR
49548 (September 23, 1993). The one exception specifically recognized
by the Department provides that an agency may retain forms CA-1 and CA-
2 in an Employee Medical Folder (EMF) in accordance with guidelines
issued by the Office of Personnel Management (OPM), but only if those
forms were not submitted to the OWCP (20 CFR 10.102(a); 52 FR 10488
(April 1, 1987)). The instances where such reports are not to be
submitted to the OWCP, and thus do not become part of a file assigned a
FECA claims number covered by DOL/GOVT-1, are extremely limited. Cf. 20
CFR 10.102(a).
When the forms CA-1 or CA-2, or other claim forms are submitted to
the OWCP, and/or the OWCP assigns a claim file number to a particular
injury, all materials relating to that claim or injury, whether in the
possession of the OWCP or the agency, are covered by DOL/GOVT-1, and
thus subject to OWCP's exclusive control. As a general matter,
therefore, it would not be appropriate for an agency to maintain copies
of records generated as a result of a FECA claim in a system other than
DOL/GOVT-1. That is not to say that a record created to satisfy two or
more purposes (i.e., personnel, safety and health, potential criminal
matters, etc.), may not be covered by other systems of records even
though the subject-matter of the document relates to an on-the-job
injury sustained by a Federal employee. To comply with the Privacy Act
in such situations, the agency should place a copy of the document in
folders specifically designated as covered by other systems of records.
However, before an agency discloses or uses any record covered by DOL/
GOVT-1 for purposes other than those directly related to the FECA
program, it must ensure that such disclosure or use has been authorized
by the Department of Labor.
It should be noted that the Privacy Act grants the Department broad
discretion to determine how and when a particular record should be
used. Thus, even where a routine use could be construed as authorizing
the release of a Privacy Act record, such release is not mandatory. The
owner of the record, in this case the Department of Labor's OWCP, may,
in the exercise of its statutory discretion, determine not to authorize
a record to be used in particular situations. For example, the
Department has determined that records covered by DOL/GOVT-1 may not be
used in connection with a personnel action absent consent of the
subject of the record. See ``Injury Compensation for Federal
Employees,'' Publication CA-810 (February 1994) p. 46. Agencies must
remember, therefore, that it is not permissible to use or release FECA
documents in connection with personnel matters unless they have first
obtained the claimant's written consent. Any questions an agency has
concerning the disclosure of or uses to which FECA-related documents
should be referred to the OWCP for resolution.
On the other hand, any records collected by an agency as part of a
safety, criminal, or personnel investigation conducted pursuant to
other statutory or regulatory authority, would not be covered by DOL/
GOVT-1. The use, release and/or disclosure of those records, even
though having some relationship to a FECA-covered injury, would be
controlled by the investigating agency, as would the authority and
responsibility for responding to requests for the correction of the
records contained in the agency's system of records.
If the agency subsequently submits copies of the documents
collected as described above to the OWCP for use in connection with the
FECA claim, then the copies given to the OWCP would become part of the
official claims file covered by DOL/GOVT-1. Thereafter, the correction
of the record, insofar as the FECA proceedings are concerned, would be
controlled by Sec. 10.12 of title 20 as amended by this rule: any
request submitted by the subject of the FECA file to correct a record
contained in the claims file must be sent to the OWCP for handling.
The fact that records concerning an injury covered by the FECA may
be maintained in another system of records does not necessarily mean
that ``dual records'' exist. In our view, a dual record would exist
only if both systems contained the identical documents which were
collected for the same purposes. The use of a government-wide system of
records approved by the OMB and published in the Federal Register, such
as DOL/GOVT-1, was designed to prevent this from happening. Moreover,
the official FECA file maintained by or under the control of the OWCP,
will include many records that neither the employing agency nor an
investigative arm of that agency have in their possession, and vice
versa. Second, the
[[Page 56754]]
purposes for which the records were collected are not the same: the
FECA file is maintained for the purpose of determining the worker's
entitlement to compensation for a job-related injury, while an agency
safety and health file might be maintained to ensure compliance with
the recordkeeping and reporting guidelines imposed on Federal agencies.
II. Companion Document
In a companion document published elsewhere in today's issue of the
Federal Register, the Department is issuing a final rule revising the
existing regulations governing the conduct of Departmental employees
and members of the public as it pertains to the treatment of records
covered by the Privacy Act. That rule also applies to records covered
by DOL/GOVT-1.
Procedural Matters
The final rule does not constitute a significant regulatory action
within the meaning of Executive Order 12866 of September 30, 1993 (58
FR 51735). Further, this rule applies only to records concerning
individual Federal employees and, therefore, will have no significant
impact or other substantial effect on small entities. Accordingly, the
requirements of the Regulatory Flexibility Act (5 U.S.C. 605(b)) do not
apply. The Assistant Secretary has so certified to the Chief Counsel
for Advocacy for the Small Business Administration.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1985, as well
as E.O. 12875, this rule does not include any federal mandate that may
result in increased expenditures by State, local, or tribal government,
or increased expenditures by the private section of more than $100
million.
Paperwork Reduction Act
The final rule is not subject to the Paperwork Reduction Act since
it does not contain a collection of information requirement.
Submission to Congress and the General Accounting office
In accordance with the Small Business Regulatory Enforcement
Fairness Act , the Department will submit to each House of the Congress
and to the Comptroller General a report regarding the issuance of
today's final rule prior to the effective date set forth at the outset
of this notice. The report will note that this rule does not constitute
a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 20 CFR Part 10
Claims, Government employees, Labor, Workers' Compensation.
For the reasons set forth in the preamble, part 10 of Chap. I of
title 20 of the Code of Federal Regulations is amended to read as
follows:
PART 10--CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES
COMPENSATION ACT, AS AMENDED
1. The authority citation for part 10 is revised to read as
follows:
Authority: 5 U.S.C. 301; Reorganization Plan No. 6 of 1950, 15
FR 3174, 64 Stat. 1263; 5 U.S.C. 8149; Secretary's Order 5-96, 62 FR
107.
2. Section 10.12 is revised to read as follows:
Sec. 10.12 Protection, release, inspection and copying of records.
(a) All records relating to claims for benefits filed under the
Act, including any copies of such records maintained by an employing
agency, are covered by the government-wide Privacy Act system of
records entitled DOL/GOVT-1 (Office of Workers' Compensation Programs,
Federal Employees' Compensation Act File). This system of records is
maintained by and under the control of the Office, and, as such, all
records covered by DOL/GOVT-1 are official records of the Office. The
protection, release, inspection and copying of records covered by DOL/
GOVT-1 shall be accomplished in accordance with the rules, guidelines
and provisions of this part, as well as those contained in 29 CFR parts
70 and 71, and with the notice of the system of records and routine
uses published in the Federal Register. All questions relating to
access/disclosure, and/or amendment of FECA records maintained by the
Office or the employing agency, are to be resolved in accordance with
this section.
(b) (1) While an employing agency may establish procedures that an
injured employee or beneficiary should follow in requesting access to
documents it maintains, any decision issued in response to such a
request must comply with the rules and regulations of the Department of
Labor which govern all other aspects of safeguarding these records.
(2) No employing agency has the authority to issue determinations
with respect to requests for the correction or amendment of records
contained in or covered by DOL/GOVT-1. That authority is within the
exclusive control of the Office. Thus, any request for correction or
amendment received by an employing agency must be referred to the
Office for review and decision.
(3) Any administrative appeal taken from a denial issued by the
employing agency or the Office shall be filed with the Solicitor of
Labor in accordance with 29 CFR 71.7 and 71.9.
Signed at Washington, DC, this 15th day of October, 1998.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
T. Michael Kerr,
Deputy Assistant Secretary for Workers' Compensation Programs.
[FR Doc. 98-28211 Filed 10-21-98; 8:45 am]
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